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ELRCDismissedMachakos Civil Appeal No. 91 of 2017· [2021] KEELRC 2404 (KLR)

Superior Homes (Kenya) Limited v Musango Kithome (Appeal 5 of 2021) [2021] KEELRC 2404 (KLR)

Environment and Labour Relations Court - Employment and Labour Relations Court
26 November 2021
MOMaureen Onyango
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenyan employers who fail to provide safe tools and protective gear will likely bear most of the blame when workers get injured on the job.

What this practically means

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Executive summary

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The Respondent, a casual labourer in the Appellant's painting section, sued for injuries sustained on 11th May 2016 when the ladder he was using slid, causing him to fall. He alleged negligence and breach of the employer's duty; the Appellant denied the employment relationship and negligence. On 22nd June 2017 the trial magistrate entered judgment for the Respondent, apportioning liability at 70%:30% in his favour and awarding general and special damages. The Appellant appealed on liability, an alleged variance between pleadings and testimony (ladder slipped versus ladder broke), and excessive quantum. The appeal was disposed of by written submissions before Maureen Onyango J at Machakos. Framing three issues, the court applied Selle v Assorted Motor Boat Company on its duty to re-evaluate evidence as a first appellate court. On liability, it held the employer's claim that it had no control over the employee's actions was no defence, since it was the employer's responsibility to provide proper working tools; no evidence showed compliance with Section 101 of the Occupational Safety and Health Act, 2007, and the Appellant called no witnesses to controvert the Respondent's account. The apportionment was affirmed. On quantum, the court found the assertion of mere soft tissue injuries unsupported by evidence, distinguished Timsales Limited v Stephen Gachie as involving purely soft tissue injuries and being dated, and found no reason to disturb the award. The appeal was dismissed with costs.

Key legal issues

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01

Apportionment of liability for workplace injury

Holding

The 70%:30% apportionment in favour of the Respondent was well reasoned and not disturbed

Reasoning

The Respondent testified that he was given a makeshift wooden ladder and no protective gear. The Appellant adduced no evidence to show it provided a safe working environment under Section 101 of the Occupational Safety and Health Act, 2007, and called no witnesses to controvert the Respondent's account. The employer bears the greater responsibility for providing proper tools and a safe workplace, so the trial magistrate's apportionment stood.

p. 3
02

Whether the award of general damages was inordinately high

Holding

No basis to interfere with the award

Reasoning

The Appellant asserted the injuries were mere soft tissue injuries but this was unsupported by evidence; the plaint and the medical report confirmed blunt injuries, dislocations of the knee and wrist and a palm wound. The Timsales case relied on by the Appellant was distinguished as involving purely soft tissue injuries and being old. The Appellant failed to demonstrate the award was inordinately high.

p. 4

Legal principles established

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  • On a first appeal, the court must re-evaluate the entire case and come up with its own findings, while making due allowance for not having seen or heard the witnesses
  • An employer has a responsibility to provide employees with proper working tools and a safe working environment

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.No interference with the trial court's apportionment of liability at 70%:30% in favour of the Respondent
  3. 3.No interference with the Trial Magistrate's award of damages
On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
First appeal transferred to this Court pursuant to the Ruling on Directions issued by Kemei J. on 1st December 2020

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, "Superior Homes (Kenya) Limited v Musango Kithome (Appeal 5 of 2021) [2021] KEELRC 2404 (KLR)", Case Analysis (2021). Machakos Civil Appeal No. 91 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2404/eng@2021-11-26

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