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ELRCPartially AllowedAppeal No. 10 of 2019 (Formerly Nakuru High Court Civil Appeal No. 210 of 2009)

Bigot Flowers (K) Limited v Isaac Nyamainyeria Omabene [2020] KEELRC 866 (KLR)

Employment and Labour Relations Court of Kenya
18 June 2020
1,881 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal in the Employment and Labour Relations Court at Nakuru against the judgment of Hon. Njuki, Senior Resident Magistrate, Naivasha, in Naivasha PMCC No. 1041 of 2007. The respondent, a general worker, was injured on 2nd July 2007 while spraying flowers on irrigated, slippery ground when he skidded and fell, injuring his right knee joint. The trial court found the appellant employer 100% liable and awarded Ksh. 80,000 general damages plus special damages as claimed. The appellant appealed, contending that no accident was reported, that the respondent failed to prove negligence and causation, that the respondent was the author of his own misfortunes, and that the quantum was excessive. The court, as a first appellate court, re-analysed the evidence and found the employment and injury proved. It applied Makala Mailu Mumende v Nyali Golf County Club on the employer's duty of care and section 13 of the Occupational Safety and Health Act, 2007 on the employee's duty to his own safety, and held that both parties were at fault. The finding of 100% liability was set aside and liability apportioned at 50%:50%, with quantum to reflect the reviewed ratio. The award of general and special damages was otherwise left undisturbed. Each party was ordered to bear its own costs of the appeal. The appeal partially succeeded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the respondent discharged the burden of proof on negligence, causation and breach of duty
  3. 3.Whether the trial court erred in the assessment of general and special damages

Key legal issues

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01

Whether the appellant employer was negligent and in breach of duty to the respondent employee

Holding

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

Reasoning

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.

p. 2
02

Apportionment of liability between employer and employee

Holding

The trial court's finding of 100% liability was set aside and liability apportioned at 50%:50% on both causation and blameworthiness

Reasoning

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.

p. 3
03

Whether the quantum of damages should be disturbed

Holding

The award of general and special damages was left undisturbed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal partially succeeds on the issue of liability, which is apportioned at 50%:50% between the parties
  2. 2.The judgment in Naivasha PMCC No. 1041 of 2007 is reviewed on liability; quantum assessed shall reflect the reviewed liability ratio
  3. 3.Each party shall bear own costs for the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 3

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%

p. 3

Costs

Each party shall bear own costs for the appeal.

Quotable passages

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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.
p. 2Employer's duty of care and protective gear
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.
p. 2Employee's own responsibility for 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.
p. 3Disposition - partial success and apportionment
Each party shall bear own costs for the appeal.
p. 3Costs order

Issues in the judgment

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minor

The respondent's supervisor is referred to by two different names in the judgment

minor

Conflicting statement on whether precautions were in place

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 (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.