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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2477 (KLR)

Zakhem International Construction Limited v Evans Kariuki Nyaga [2019] KEELRC 2477 (KLR)

Employment and Labour Relations Court
31 January 2019
LNLinnet Ndolo
1,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed an employer must pay full compensation when it provides unsafe work equipment, and appellate courts rarely reduce carefully calculated injury awards.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa (Linnet Ndolo, J) against the judgment of Hon. N.S Lutta, SPM in Mariakani SPMCC No. 375 of 2010. The Respondent, employed by the Appellant as a machine operator, was injured while offloading cargo using a bobcat machine whose windshield had been removed, losing sight in his left eye and suffering multiple skull injuries. The Appellant challenged both liability and quantum, contending that the Respondent had been warned not to use the machine without a windshield and was an experienced operator, and that the award of Kshs. 3,071,970 for loss of earning capacity was excessive and wrongly calculated. The court, exercising its first appellate duty to re-evaluate the evidence, found from the record that the Appellant was allocated the wrong machine for the assignment, the machine was incomplete (windshield removed), and the Respondent had no protective gear. The employer's Safety Officer had authorized the work to continue without goggles, and the employer's own mechanic conceded a forklift would have been suitable. The court held that the employer bore the superior burden of ensuring machine safety and had failed in its duty of care to provide an appropriate machine and protective gear, justifying 100% liability. On quantum, applying the test for interference with discretionary awards, the court found the trial Magistrate's adoption of the lower 30% incapacity assessment and a 25-year multiplier (for a 25-year-old claimant) reasonable. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Liability for workplace injuries caused by use of a bobcat machine lacking a windshield

Holding

The trial Magistrate correctly assigned 100% liability to the employer

Reasoning

Four facts emerged from the record: the Appellant was allocated the wrong machine for the assignment; the machine was incomplete, having no windshield; and the Respondent had no protective gear. The employer's Safety Officer had authorized the work to continue, and the employer owed the employee a duty of care to provide a suitable machine and protective gear. Between the machine operator and the Safety Officer, the latter carried the superior burden to determine machine safety. Having failed in that duty, the employer could not escape full liability.

p. 2
02

Whether the appellate court could interfere with the quantum of damages awarded for loss of earning capacity

Holding

The award was a proper exercise of discretion and the court declined to interfere

Reasoning

The court applied the established test for interference with discretionary decisions: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take into account relevant considerations, or a plainly wrong decision. None was established. The trial Magistrate adopted the more conservative 30% incapacity assessment by the Appellant's doctor rather than the 50% returned by the Respondent's doctor, and adopted a reasonable 25-year multiplier given the Respondent's age of 25 years at the time of the accident.

p. 2

Legal principles established

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  • A first appellate court must consider and evaluate the evidence on record and draw its own conclusions, bearing in mind it has neither seen nor heard the witnesses
  • An appellate court will not interfere with a discretionary award of damages unless the decision-maker misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong
  • An employer owes an employee a duty of care to provide an appropriate machine and protective gear, and the Safety Officer bears the superior burden of determining the safety of the machine employed

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs to the Respondent in this Court and in the court below

Authorities

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Cases cited (4)

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Printing Industries Limited & another v Bank of Baroda
    [2017] eKLR
  • United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd
    [1985] E.A 898
On appeal from
Senior Principal Magistrate's Court, Mariakani
SPMCC No. 375 of 2010
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (not expressly stated in the judgment)

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, "Zakhem International Construction Limited v Evans Kariuki Nyaga [2019] KEELRC 2477 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2477/eng@2019-01-31

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