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ELRCDismissedAppeal No. 59 of 2017 (formerly Naivasha High Court Civil Appeal No. 16 of 2016)· [2019] KEELRC 1939 (KLR)

Schreurs Naivasha Limited v Jackiline Nyamoita Nyang’au [2019] KEELRC 1939 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
31 January 2019
1,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan appeal court upheld a flower farm worker's win in a workplace injury case because the employer couldn't produce its own safety records.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nakuru against the judgment and decree of Hon. Esther K Kimilu, Senior Resident Magistrate, in Naivasha PMCC No. 746 of 2014, delivered on 1st March 2016. The respondent was injured on 30th November 2012 while degrading flowers in the appellant's grading department, sliding on a wet floor and injuring her right index finger. The trial court found the appellant liable in negligence at 90:10 and awarded Ksh.200,000.00 in damages. The appellant appealed on liability and quantum, arguing negligence was not proved, that no work injury was recorded on 30th November 2012, and that Ksh.50,000.00 would have sufficed. The respondent contended her evidence was unchallenged, the defence witness was an accountant not present at the accident, and the nurse to whom the report was made was not called. Applying Kiruga v Kiruga on the approach to a first appeal, the court re-evaluated the evidence and found the trial court's findings on liability proper, noting the defence failed to avail the injury records and the protective apparel register, and that health centre treatment records corroborated the injury. Relying on comparable authorities on index finger injuries, the court found the damages award reasonable and declined to disturb it. The appeal was dismissed with each party bearing their own costs of the appeal.

Key legal issues

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01

Whether the accident of 30th November 2012 occurred and liability attaches to the employer

Holding

The trial court's finding of liability at 90:10 in favour of the respondent was proper; the employer failed to avail injury records and the protective apparel register.

Reasoning

The defence witness was an accountant who did not keep injury records; the nurse who kept them died and was not called. The trial court noted the defence 'conveniently avoided availing' the register for issuance of protective apparel. Treatment records at Karagaita Health Centre corroborated the injury, and employment was not challenged. The appellant failed to rebut the respondent's unchallenged account.

p. 3
02

Whether the award of Ksh.200,000.00 general damages was excessive

Holding

The award was reasonable, being within the range of comparable authorities for right index finger injuries, and was not disturbed.

Reasoning

The court compared the award with Peter Omolo v Match Masters (Ksh.50,000), Kenya Steel Fabricators v Tom Moki (Ksh.220,000) and Kennedy Mutinda Nzoka v Basco Product (Ksh.210,000) for similar index finger injuries. Taking the comparable cases and the trial court's findings into account, the damages were reasonable.

p. 4

Legal principles established

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  • An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or the judge is plainly wrong.
  • The primary duty rests with the employer to prove that precautions were put in place and brought to the attention of the employee.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs of the appeal

Authorities

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Cases cited (9)

  • Blyth v Birmingham Waterworks Co
    11 Exch
  • Joseph Wahome Muturi v Municipal Council of Nyeri
    [2008] eKLR
  • Spinners and Spinners Ltd v Alex Andayi Atieli
    [2014] eKLR
  • Kiruga v Kiruga & Another
    [1988] KLR 348
  • Samson Emuru v Ol Suswa Farm Ltd
    Nakuru HCCA No. 6 of 2003
  • Efil Enterprises Limited v Dickson Mathambyo Kilonzo
    [2018] eKLR
  • Peter Omolo v Match Masters Limited
    [2017] eKLR
  • Kenya Steel Fabricators Limited v Tom Moki
    [2018] eKLR
  • Kennedy Mutinda Nzoka v Basco Product (Kenya) Limited
    [2013] eKLR
On appeal from
Principal Magistrate's Court at Naivasha
Naivasha PMCC No. 746 of 2014
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment and decree in a workplace injury claim (employment and labour relations dispute)

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, "Schreurs Naivasha Limited v Jackiline Nyamoita Nyang’au [2019] KEELRC 1939 (KLR)", Case Analysis (2019). Appeal No. 59 of 2017 (formerly Naivasha High Court Civil Appeal No. 16 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1939/eng@2019-01-31

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