Otieno v Abyssinia Iron and Steel (Cause 272 of 2018) [2023] KEELRC 2879 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of an employment relationship
The Claimant was an employee of the Respondent despite the Respondent's denial, because the employer failed to produce the relevant departmental employment records
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.
Negligence - failure to provide training
The Claimant failed to prove that failure to provide training amounted to negligence
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.
Negligence - failure to provide protective gear
The Claimant failed to show the Respondent was liable in negligence for not providing safety equipment
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.
Proper remedy for workplace injury
Where employer negligence is not established, the Claimant's remedy lies under the Work Injury Benefits Act, a no-fault scheme
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.
Legal principles established
#- 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
#- 1.The Cause is dismissed with costs to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.