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ELRCDismissedCause No. 272 of 2018· [2023] KEELRC 2879 (KLR)

Otieno v Abyssinia Iron and Steel (Cause 272 of 2018) [2023] KEELRC 2879 (KLR)

Employment and Labour Relations Court
15 November 2023
762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An injured Kenyan worker won the employment dispute but lost the case because he could not prove his employer was negligent; workplace injury claims may not need negligence at all.

What this practically means

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Executive summary

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The Claimant, Chilex Odhiambo Otieno, sued Abyssinia Iron & Steel Ltd alleging breach of statutory duty/negligence arising from an accident on 22 February 2018 in which a banding machine cut his left finger while he was fixing scrap inside it. He alleged the Respondent failed to provide gloves, helmets, masks, boots and other safety clothing, and failed to conduct safety training. The Respondent denied the employment relationship and the negligence allegations, producing an extract of a casual weekly attendance sheet for the furnace department to disown the Claimant. The court held that the Claimant was an employee: he had indicated he worked in the banding department, yet the Respondent produced records only from the furnace department, despite the duty under sections 9 and 10 of the Employment Act, 2007 to maintain employment records; applying section 10(3), the adverse inference was drawn. On negligence, however, the Claimant failed. He gave no evidence of the type of training his job required, and did not show how the missing protective gear would have prevented the accident. The court found the burden of proving negligence on a balance of probabilities not discharged, and observed that the Claimant's proper remedy would have been a claim under the Work Injury Benefits Act, under which negligence is not a consideration for compensation. The Cause was dismissed with costs to the Respondent. The Claimant's submissions were not considered as they were not paid for.

Key legal issues

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01

Existence of an employment relationship

Holding

The Claimant was an employee of the Respondent despite the Respondent's denial, because the employer failed to produce the relevant departmental employment records

Reasoning

The Claimant testified he worked in the banding department, but the Respondent produced only a casual weekly attendance sheet from the furnace department. The witness admitted another employee (Titus) was missing from that schedule. Sections 9 and 10 of the Employment Act place the duty of maintaining records on the employer; having been put on alert that the Claimant worked in a different department, the Respondent's failure to produce those records led the court, invoking section 10(3), to find the employment relationship established.

p. 2
02

Negligence - failure to provide training

Holding

The Claimant failed to prove that failure to provide training amounted to negligence

Reasoning

The Claimant did not disclose when he was employed, only the date of the accident, and gave no evidence of the type of training required. His main duty of putting scrap inside a machine did not clearly require particular training, and the court found this head of negligence unproved.

p. 2
03

Negligence - failure to provide protective gear

Holding

The Claimant failed to show the Respondent was liable in negligence for not providing safety equipment

Reasoning

Although the Claimant alleged absence of masks, gloves, helmets and boots, he adduced no clarification as to how such gear would have prevented or ameliorated the accident. Causation was therefore not established and this head of negligence also failed.

p. 2
04

Proper remedy for workplace injury

Holding

Where employer negligence is not established, the Claimant's remedy lies under the Work Injury Benefits Act, a no-fault scheme

Reasoning

The court observed that on the evidence the appropriate avenue would have been a claim under the Work Injury Benefits Act, under which compensation does not depend on proof of negligence.

p. 2

Legal principles established

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  • The statutory obligation to prepare and maintain employment records rests on the employer under sections 9 and 10 of the Employment Act, 2007
  • Where an employer fails to produce relevant employment records, the court may find an employment relationship under section 10(3) of the Employment Act
  • Where an injury is not attributable to employer negligence, the proper remedy lies under the Work Injury Benefits Act, under which negligence is not a consideration

Court orders

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  1. 1.The Cause is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 9
  • Employment Act, 2007section 10
  • Employment Act, 2007section 10(3)
  • Work Injury Benefits Actnull
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (Cause for breach of statutory duty/negligence arising from employment)

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, "Otieno v Abyssinia Iron and Steel (Cause 272 of 2018) [2023] KEELRC 2879 (KLR)", Case Analysis (2023). Cause No. 272 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2879/eng@2023-11-15

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