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ELRCDismissedAppeal No. 9 of 2018· [2019] KEELRC 1780 (KLR)

Transafric Timber Limited v Eunice Kerubo Momanyi [2019] KEELRC 1780 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
14 March 2019
MMM. Mbaru
1,844 words in judgment
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The bottom line

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Kenyan employers must supervise new workers on dangerous machines; Transafric Timber lost its appeal and must pay Ksh.700,000 plus costs.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru (M. Mbaru, J) dismissed Transafric Timber Limited's appeal against the judgment and decree of Resident Magistrate F Muguongo delivered on 18 April 2016 in Nakuru CMCC No.1174 of 2014. The respondent had been injured on 3 November 2014 while operating a cross-cutting machine during her second week of employment as a general worker, sustaining amputation of the right index finger, fracture of the distal phalanx of the right middle finger and a deep cut to the right thumb, with 20% incapacity of her dominant hand. The trial court found the appellant 100% liable and awarded general damages of Ksh.700,000.00. The appellant challenged the findings on liability, quantum and the legal principles applied, arguing the respondent failed to prove negligence and that the award was inordinately high, citing old comparators. The court reappraised the evidence afresh as required on first appeal, applying Kiruga v Kiruga, and held that although not every industrial injury is the employer's fault, an employer who allocates untrained, inexperienced workers duties requiring skill, control and supervision must keep them under supervision until they can safely work alone. The court found the trial judgment well-reasoned, rejected the appellant's outdated comparators on quantum, and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Employer's liability for injury to an inexperienced employee operating a machine

Holding

Liability was properly fixed at 100% on the appellant because the respondent, without prior experience, was shown the machine briefly and then left unsupervised to operate a machine requiring skill and control

Reasoning

The court held that negligence and a failure of the employer's statutory duty must be proved, but where an employee demonstrates injury in the course of duty due to the employer's failure to ensure a safe work environment, including allocation of duties requiring training, regulation and control, the resulting injury falls on the employer. Two weeks of demonstration was insufficient; prudence required continued supervision before leaving her to operate the machine alone.

p. 2
02

Appellate court's approach to factual findings of a trial court

Holding

The court reappraised the evidence afresh but found no basis to disturb the trial court's findings on liability

Reasoning

Following Kiruga v Kiruga, the court acknowledged its duty to analyse and re-evaluate the material on record afresh while bearing in mind that the trial court had the advantage of hearing the primary evidence. It could substitute findings only where there was no evidence or where the trial court was plainly wrong; neither was established here.

p. 3
03

Quantum of general damages for hand injuries

Holding

The award of Ksh.700,000.00 was not disturbed as the appellant's comparators were too old to justify a 2014 injury

Reasoning

The trial magistrate had assessed damages on the medical evidence, 20% incapacity of the dominant right hand, and analysed comparable cases. The appellant's counter-assessment relied on awards from 1987 and earlier years, which the court held could not be applied to an injury occurring in 2014.

p. 3

Legal principles established

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  • An appellate court cannot substitute its own factual findings for those of a trial court unless there is no evidence to support the finding or the judge is plainly wrong, and must exercise its review jurisdiction with caution
  • Where an employee is allocated duties requiring training, regulation and control, an injury resulting from the employer's failure to ensure a safe work environment must be borne by the employer
  • An employer must keep a new, inexperienced employee under supervision until satisfied that she can be left to operate a dangerous machine on her own

Court orders

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  1. 1.The appeal is found without merit and is dismissed
  2. 2.The appellant shall pay costs due to the respondent for the appeal

Authorities

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Cases cited (11)

  • Blyth v Birmingham Waterworks Co.
    (1956) 11 Ex.
  • Mumende v Nyali Golf & Country Club
    (1991) KLR
  • Mwanyule v Said t/a Jomvu Total Service Station
    [2004] 1 KLR
  • Simba Posho Mills Ltd v Onguti
    [2005] eKLR
  • Karita v Muthua
    [1987]
  • Butt v Khan
    [1978] eKLR
  • William J Butler v Maura Kathleen Butler
    [1984] eKLR
  • Kiruga v Kiruga & Another
    [1988] KLR 348
  • Timsales Limited v Stephen Gachie
    [2005] eKLR
  • Samson Emuru v Ol Suswa Farm Ltd
    Nakuru HCCA No. 6 of 2003
  • Efil Enterprises Limited v Dickson Mathambyo Kilonzo
    [2018] eKLR
On appeal from
Resident Magistrate's Court at Nakuru
CMCC No. 1174 of 2014
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment and decree in Nakuru CMCC No.1174 of 2014

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transafric Timber Limited v Eunice Kerubo Momanyi [2019] KEELRC 1780 (KLR)", Case Analysis (2019). Appeal No. 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1780/eng@2019-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.