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ELRCAllowedAppeal No. 19 of 2018 (formerly Nakuru High Court Appeal No. 101 of 2016)· [2020] KEELRC 1683 (KLR)

Stephen Mwangi Kimuyu v Biashara Masters Sawmill [2020] KEELRC 1683 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
MMM. Mbaru
1,551 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 confirmed employers must provide protective gear at work, awarding a welder damages after his employer failed to issue safety equipment.

What this practically means

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Executive summary

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This first-instance appeal from the Chief Magistrate's Court at Molo (Molo CMCC No. 208 of 2012) concerned an employer's liability for an eye injury sustained by the appellant on 8 March 2012 while welding a metal bar in the respondent's employment. The trial court had found no liability and dismissed the claim with costs, appearing to found its reasoning on the existence of other injury claims by the appellant and doubts as to his character. The appellant appealed on nine grounds, contending that no defence was made to his claims, that the court wrongly treated his allegations as unproved, that the respondent failed to produce the injury book, and that no proper evaluation of the evidence was undertaken. The court, as a first appellate court, re-evaluated the evidence afresh. It found the injury while at work proved and unchallenged, since the respondent's witness confirmed the appellant was on welding duties that day but produced no work records. The appellant's own testimony showed that the eye shield was issued only after the accident and that with welding glasses he would not have been injured. The court held the respondent in breach of a statutory duty of care for failing to provide protective gear and failing to keep a record of such issue. It further held that the trial court's blanket reliance on other claims without contradistinguishing them was contrary to fair administration of justice. The judgment of the trial court was set aside and the appellant awarded Ksh. 50,000 in general damages and Ksh. 5,000 in special damages, with each party bearing its own costs both below and on appeal.

Key legal issues

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01

Whether the appellant proved injury while at work

Holding

The injury on 8 March 2012 while at work was proved and not materially challenged.

Reasoning

The appellant's evidence and records from Huruma Dispensary, Njoro, and the evidence of Edwin Chomba Miheso confirmed the accident. The respondent's witness confirmed the appellant was on duty that day and allocated welding duties, but produced no work records to contradict the claim.

p. 2
02

Whether the respondent was liable in negligence and breach of statutory duty

Holding

The respondent was liable for breach of statutory duty in failing to provide protective gear.

Reasoning

The appellant testified he was given an eye shield only after the accident and that he could not have been injured had he had welding glasses. Failure to issue protective gear and to keep a record of the issue breached statutory duty; the employer is not entitled to leave such omissions without a reasonable defence.

p. 2
03

Whether the trial court erred in basing its finding on the appellant's character

Holding

The trial court erred in applying the existence of other claims as a blanket assessment without analysis.

Reasoning

The trial court relied on other claims against the respondent to question the appellant's motive, but did not detail those claims or contradistinguish them from the matter before it. A blanket application of such matters to find no evidence was contrary to fair administration of justice.

p. 2

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence afresh, subject to the absence of the advantage of seeing the witnesses.
  • Failure to issue an employee with protective gear and to keep a record of such issue is a breach of statutory duty of care attracting liability.

Court orders

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  1. 1.The judgment of the trial court in Molo CMCC No. 208 of 2012 is set aside
  2. 2.The appellant is awarded Ksh. 50,000 in general damages
  3. 3.The appellant is awarded Ksh. 5,000 in special damages
  4. 4.Each party shall bear own costs of the lower court and the instant appeal

Authorities

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Cases cited (6)

  • IEBC & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Boniface Muthama Kavita v Carton Manufacturers Limited
    Civil Appeal No. 670 of 2003
  • Mumende v Nyali Golf & Country Club
    (1991) KLR
  • Statpack Industries v James Mbithi Munyao
    HCCA No. 152 of 2003
  • Kiruga v Kiruga & another
    [1988] KLR
  • Amalgamated Saw Mills v David K. Kariuki
    [2016] eKLR
On appeal from
Chief Magistrate's Court at Molo
Molo CMCC No. 208 of 2012
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court at Molo

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, "Stephen Mwangi Kimuyu v Biashara Masters Sawmill [2020] KEELRC 1683 (KLR)", Case Analysis (2020). Appeal No. 19 of 2018 (formerly Nakuru High Court Appeal No. 101 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1683/eng@2020-02-06

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