Bigot Flowers (K) Limited v Isaac Nyamainyeria Omabene [2020] KEELRC 866 (KLR)
The bottom line
#A Kenyan court cut an employer's liability for a worker's injury from 100% to 50%, because both faulty safety gear and the worker's own carelessness caused the accident.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding the appellant 100% liable despite the evidence, including the respondent's own conduct in walking on irrigated ground and being issued with worn-out gumboots
- 2.Whether the respondent discharged the burden of proof on negligence, causation and breach of duty
- 3.Whether the trial court erred in the assessment of general and special damages
Key legal issues
#Whether the appellant employer was negligent and in breach of duty to the respondent employee
The appellant owed a common law duty of care and failed in part by issuing worn-out gumboots, but precautions had been put in place; liability was shared
The court restated the employer's duty to provide a safe workplace and adequate protective gear. The respondent was issued gumboots, though worn out, and the watery irrigated ground was known to him. Both parties were at fault: the employer for defective gear, the employee for exposing himself to injury under section 13 of the Occupational Safety and Health Act. Liability was therefore apportioned equally.
Apportionment of liability between employer and employee
The trial court's finding of 100% liability was set aside and liability apportioned at 50%:50% on both causation and blameworthiness
Relying on the principles in Peter Bernard Makau v Prime Steel Limited on causation and blameworthiness, and Amalgamated Saw Mills v David K. Kariuki on the employee's own precautions, the court held the employee bore responsibility for his own safety. Equal apportionment reflected each party's fault.
Whether the quantum of damages should be disturbed
The award of general and special damages was left undisturbed
The injury to the right knee joint was proved and assessed as grievous harm with a temporary disability. The appellant did not demonstrate that the trial magistrate considered an irrelevant factor or that the award was so low as to occasion injustice. The court found no reason to disturb quantum, only to reflect the reviewed liability ratio.
Legal principles established
#- An employer owes a common law duty to take reasonable care for the safety of employees, including providing adequate protective gear; where worn-out protective clothing is issued, the employer has not fully fulfilled that duty
- Under section 13 of the Occupational Safety and Health Act, 2007, an employee is under a statutory duty to ensure his own safety and health at the workplace, which is relevant to apportionment of liability
- No amount of money can restore an injury or a lost limb; damages awards will not be disturbed absent a showing that an irrelevant factor was considered or the award occasioned injustice
Court orders
#- 1.The appeal partially succeeds on the issue of liability, which is apportioned at 50%:50% between the parties
- 2.The judgment in Naivasha PMCC No. 1041 of 2007 is reviewed on liability; quantum assessed shall reflect the reviewed liability ratio
- 3.Each party shall bear own costs for the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court, Naivasha
- Naivasha PMCC No. 1041 of 2007
- Jurisdiction invoked
- First appeal from the subordinate court to the Employment and Labour Relations Court (appeal formerly Nakuru High Court Civil Appeal No. 210 of 2009)
Relief refused
#Appellant's request that the judgment and decree be reviewed or set aside in full, including on quantum of damages
The appellant failed to show that the trial magistrate took into account an irrelevant factor or that the award was so low as to occasion injustice; only the liability apportionment was disturbed
Respondent's request for confirmation of the 100% liability finding and dismissal of the appeal with costs
The court found both parties at fault and reduced liability to 50%:50%
Costs
Each party shall bear own costs for the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where then an employee is injured simply because the employer has not taken such reasonable measures to provide the necessary safety devises, gear or protective clothing, it is sufficient and in general, satisfactory to say that the employer has not fulfilled its duty.
An employer cannot babysit an employee especially in manual tasks that need no special training or supervision. He must work and at the same time take precautions on his own security and safety.
In the circumstances the appeal lodged by the appellant partially succeeds on the issue of liability which hereby apportioned at 50%:50% and therefore review judgement in Naivasha PMCC No.1041 of 2007 in this regard.
Each party shall bear own costs for the appeal.
Issues in the judgment
#The respondent's supervisor is referred to by two different names in the judgment
Conflicting statement on whether precautions were in place
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bigot Flowers (K) Limited v Isaac Nyamainyeria Omabene [2020] KEELRC 866 (KLR)", Case Analysis (2020). Appeal No. 10 of 2019 (Formerly Nakuru High Court Civil Appeal No. 210 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/866/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.