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ELRCPartially AllowedAppeal No. 61 of 2017 (Formerly Naivasha High Court Appeal No. 60 of 2014)· [2019] KEELRC 1954 (KLR)

Bigot Flowers Limited v Zakiah Kairuthi Shaban [2019] KEELRC 1954 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
31 January 2019
MMM. Mbaru
1,665 words in judgment
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The bottom line

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A Kenyan court cut an employer's liability for a worker's slip injury to 50%, because the worker also failed to take care for his own safety.

What this practically means

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Executive summary

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This is a first appeal (originally Naivasha High Court Appeal No. 60 of 2014, transferred to the ELRC at Nakuru on 19th December 2017) against the judgment and decree of Hon. E Riany, Resident Magistrate, in Naivasha CMCC No. 237 of 2013 delivered on 3rd April 2014. The respondent, a flower grading worker, claimed he slipped on a wet floor at the appellant's grading hall on 4th January 2013, fracturing his left patella and dislocating his left knee joint. The trial court found the appellant 100% liable and awarded damages of Kshs. 350,000.00. The appellant appealed, contending the trial court failed to evaluate the evidence, that the respondent had been provided rubber shoes and protective apparel which got worn out without a request for replacement, that it had discharged its statutory duty under the Occupational Safety and Health Act, and that the award was excessive. The respondent did not file submissions. Re-evaluating the evidence as a first appeal, the court accepted that the appellant had provided requisite apparel, and applying the twin principles of causation and blameworthiness, held that each party should bear responsibility for the accident. The court varied the trial court's finding on liability from 100% to 50:50% apportionment, holding the appeal successful in that regard, and directed that each party bear its own costs of the appeal. The quantum of damages was not disturbed. The judgment cites authorities on the employer's strict statutory duty to provide a safe working environment, the employee's own duty of care, and the primary duty resting on the employer to prove precautions were taken.

Key legal issues

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01

Whether the trial court erred in apportioning liability at 100% against the appellant

Holding

Liability ought to have been apportioned equally at 50:50% given the appellant had provided the requisite apparel and the respondent bore some responsibility for the circumstances of the slip and fall

Reasoning

The court, re-evaluating the evidence as a first appeal, noted the appellant provided rubber shoes and proper apparel, and the respondent slid on a wet floor in the grading area. Applying principles of causation and blameworthiness, the court held both parties should share responsibility. The respondent having not contested the appeal, liability was reduced to 50:50%.

p. 3
02

Whether the appellant discharged its statutory duty under the Occupational Safety and Health Act by providing work apparel

Holding

The appellant made efforts to ensure employee safety by providing proper apparel and rubber shoes, but this did not wholly exonerate it; the duty to ensure a safe work environment remains with the employer

Reasoning

The court acknowledged the appellant's compliance in providing protective gear, but relied on authorities confirming that the employer's duty to provide a safe place of work is a higher duty, while the employee retains a duty of reasonable care. The interplay justified apportionment rather than a 100% allocation either way.

p. 2

Legal principles established

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  • An employer's failure to provide a safe working environment and correct and appropriate work tools is a breach of statutory duty rendering the employer strictly liable for injuries sustained in the course of employment
  • An employee equally has a duty while at work to take reasonable precaution and care to avoid work injury
  • Liability for negligence may be apportioned on the basis of causation or blameworthiness

Court orders

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  1. 1.Liability as found by the trial court is reviewed and apportioned at 50:50% between the appellant and the respondent
  2. 2.Each party shall bear own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Occupational Safety and Health ActSection 6

Cases cited (6)

  • Gem Court Ltd versus Charles Andole
    [2014] eKLR
  • Purity Wambui Murithii versus Highlands Mineral Water Co. Ltd
    [2015] eKLR
  • Simba Posho Mills Ltd versus Fred Machira Onguti
    Nakuru H.C.C No. 65 of 2002
  • Amalgamated Saw Mills versus David K. Kariuki
    [2016] eKLR
  • Samson Emuru versus Ol Suswa Farm Ltd
    Nakuru HCCA No. 6 of 2003
  • Garton Limited versus Nancy Njeri Nyoike
    [2016] eKLR
On appeal from
Principal Magistrate's Court at Naivasha
Naivasha CMCC No. 237 of 2013
Jurisdiction invoked
First appeal transferred from the High Court at Naivasha to the Employment and Labour Relations Court by orders of 19th December 2017

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, "Bigot Flowers Limited v Zakiah Kairuthi Shaban [2019] KEELRC 1954 (KLR)", Case Analysis (2019). Appeal No. 61 of 2017 (Formerly Naivasha High Court Appeal No. 60 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1954/eng@2019-01-31

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