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ELRCDismissedELRC Appeal (Eldoret), Memorandum of Appeal filed 6th April 2011· [2021] KEELRC 2407 (KLR)

Equator Flowers (K) Limited v Omar Nyaboga (Cause 10 of 2020) [2021] KEELRC 2407 (KLR)

Employment and Labour Relations Court
1 December 2021
JAJ. N. Abuodha
1,441 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 upheld a Kshs 150,000 award to a flower farm worker who proved his occupational asthma was caused by unsafe chemical exposure.

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 Eldoret against the judgment of the Lower Court (Honourable Innocent Maisiba) delivered on 16th March 2011, in which the respondent, an employee at the appellant's flower farm, was awarded damages after contracting occupational asthma disease and allergic bronchospasm allegedly from exposure to chemicals while spraying. The appellant, through Mr. Kibichy, contended that the respondent failed to prove his case on a balance of probabilities, that no causal link between the injuries and the appellant's negligence was established, that no particulars of negligence were proved, and that the award of damages was inordinately high and manifestly excessive for what it termed soft tissue injuries, proposing Kshs. 30,000/= as reasonable. The respondent, through Mr. Karuiki Mwaniki, maintained that he contracted an occupational disease from exposure to chemicals, that the appellant breached section 6(1) of the Occupational Safety and Health Act, 2007 by failing to provide protective apparel, and that the award of Kshs. 150,000/= was if anything on the lower side. J. N. Abuodha J reviewed the evidence as required on a first appeal and found the trial magistrate had sufficient material to conclude that the respondent proved his case on a balance of probabilities. The appellant's own witnesses did not support the suggestion that the illness was contracted away from work, and no proof of provision of protective gear was produced. On quantum, the court held the injuries were not soft tissue injuries and that the award was not inordinately high. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Proof of causation of occupational disease and employer's duty to provide protective gear

Holding

The respondent proved on a balance of probabilities that he contracted occupational asthma disease and allergic bronchospasm from exposure to chemicals while spraying at the appellant's flower farm; the appellant failed to prove it provided protective gear

Reasoning

The trial court found the medical officers agreed the claimant had occupational health disease and had been treated for coughs and chest pains. The appellant's own witness DW2 did not support the suggestion that the illness could have been contracted away from work. DW1 could not produce the memorandum alleged to show the respondent signed for protective gear. Breach of section 6(1) of the Occupational Safety and Health Act, 2007 was thus established.

p. 2
02

Quantum of damages for occupational asthma and allergic bronchospasm

Holding

The award of Kshs. 150,000/= was neither inordinately high nor manifestly excessive and the appellate court declined to interfere

Reasoning

The court accepted the respondent's submission that the effects of occupational asthma and allergic bronchospasm are serious and could take long to heal. These were not soft tissue injuries as contended by the appellant, and the award did not meet the threshold for appellate interference with damages.

p. 2

Legal principles established

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  • An occupier must ensure the safety, health and welfare of all persons working at the workplace, and where an employer fails to prove provision of protective gear, liability for occupational disease may attach
  • On a first appeal the court must reconsider and evaluate the evidence afresh while bearing in mind that it did not see or hear the witnesses
  • An appellate court will only interfere with an award of damages if it is shown to be inordinately high or low because relevant facts were omitted or irrelevant facts considered

Court orders

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  1. 1.The entire appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Occupational Safety and Health Act, 2007Section 6(1)
  • Occupational Safety and Health Act, 2007Section 6(2)(d)

Cases cited (1)

  • Statpack Industries Ltd v James Mbithi Munyao
    HCCA No 152 of 2003
On appeal from
Chief Magistrate's Court (Lower Court)
null (judgment delivered 16th March 2011, Honourable Innocent Maisiba)
Jurisdiction invoked
First appeal from the Lower Court to the Employment and Labour Relations Court (statutory first appellate jurisdiction over employment and occupational safety disputes)

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, "Equator Flowers (K) Limited v Omar Nyaboga (Cause 10 of 2020) [2021] KEELRC 2407 (KLR)", Case Analysis (2021). ELRC Appeal (Eldoret), Memorandum of Appeal filed 6th April 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2407/eng@2021-12-01

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