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ELRCDismissedAppeal No. 17 of 2017· [2020] KEELRC 1068 (KLR)

Bernard Nyanchieng'a Onyancha v Gilani's Supermarket Limited [2020] KEELRC 1068 (KLR)

Employment and Labour Relations Court of Kenya
9 April 2020
MMM. Mbaru
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an injured employee who ignored provided safety gear cannot blame the employer for his workplace accident.

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 Nakuru against the judgment of Hon. J.M. Omido, Principal Magistrate, delivered on 27th January 2017 in Nakuru CMCC No. 558 of 2015, which dismissed the appellant's claim for general and special damages arising from a workplace burn injury. The appellant, an employee of the respondent supermarket, was injured on 2nd February 2015 while cooking kebabs in hot oil using a karai instead of a deep fryer, and sued in negligence and breach of duty, alleging the respondent failed to provide a safe working environment, training and protective gear. On appeal he contended the trial court erred in rejecting his claim and in awarding damages of Ksh.60,000 which he sought revised to Ksh.200,000. The respondent maintained it had provided gloves, tongs and a long spoon, plus training and supervision, and that the appellant's own improper method of working caused the injury. The court reiterated its duty on a first appeal to re-evaluate the evidence, noted that work injuries fall under the Work Injury Benefits Act, 2007, and held that the employer had taken reasonable measures. Finding that the appellant was issued protective gear which he chose not to use and that he deliberately exposed himself to danger, the court found the trial magistrate's conclusions proper, confirmed the judgment of the subordinate court, dismissed the appeal, and awarded costs to the respondent. Judgment was delivered electronically on 9th April 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Employer's duty of care and employee's own responsibility for safety

Holding

The respondent discharged its duty by providing protective gear (gloves, tongs, long spoon), training and supervision; the appellant, who opted to drop kebabs into hot oil rather than dip them, exposed himself to danger and cannot hold the employer liable.

Reasoning

The court accepted the uncontradicted facts that the appellant was injured at work but found he had been issued protective gear which he did not use, had been trained and promoted from cleaner to assistant cook, and was under supervision. Where an employee deliberately disregards safety precautions and exposes himself to known danger, the employer who took reasonable measures is not liable in negligence or breach of statutory duty.

p. 3
02

Applicable statutory regime for work injuries

Holding

The appellant's work accident claim ought to have been addressed under the Work Injury Benefits Act, 2007 rather than by an ordinary negligence suit grounded on the Occupational Safety and Health Act.

Reasoning

The court observed that while magistrates' courts were permitted by Practice Directions of 2011 to hear criminal matters arising from OSHA offences, work injuries remained regulated under WIBA, which provides compensation mechanisms through the Director, including shop-floor inquiries whose omission deprived the court of crucial material.

p. 2
03

Correctness of the trial court's findings on a first appeal

Holding

The trial magistrate properly analysed the matter, applied the law and reached proper conclusions; there was nothing for the first appellate court to review, set aside or vary.

Reasoning

Exercising its duty to re-evaluate the evidence, the court found the trial court's dismissal of the claim, founded on the defence evidence of provision of protective gear, training and the appellant's improper method of work, was supported by the evidence and law, and confirmed the judgment.

p. 2

Legal principles established

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  • An employer's duty is to take reasonable care for the safety of employees in all the circumstances so as not to expose them to unnecessary risk
  • An employee who deliberately exposes himself to danger, aware of the risk, cannot accuse the employer of negligence or breach of statutory duty
  • Work injuries are regulated under the Work Injury Benefits Act, 2007 rather than the Occupational Safety and Health Act, 2007
  • On a first appeal the court has a duty to re-evaluate the evidence and make its own findings

Court orders

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  1. 1.The judgment in Nakuru CMCC No.558 of 2015 is confirmed
  2. 2.The appeal is dismissed as lacking merit
  3. 3.Costs to the respondent
On appeal from
Chief Magistrate's Court at Nakuru
Nakuru CMCC No. 558 of 2015
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court

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, "Bernard Nyanchieng'a Onyancha v Gilani's Supermarket Limited [2020] KEELRC 1068 (KLR)", Case Analysis (2020). Appeal No. 17 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1068/eng@2020-04-09

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