P.J. Dave Flowers Limited v Barasa (Appeal 25 of 2018) [2023] KEELRC 3320 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in holding the employer 100% liable
No. The employer owed common law, statutory (Occupational Safety and Health Act) and constitutional (Article 41) duties of care; it failed to rebut the employee's evidence that he worked in the cold room, and admitted giving no cold-room protective gear, amounting to an admission of breach.
The employer claimed the respondent never worked in the cold room, but bore an evidential burden under Sections 107 and 109 of the Evidence Act and statutory record-keeping duties under Section 74 of the Employment Act and Section 8 of WIBA to prove the allocation of duties. Its muster roll did not speak to the daily scope of duties, and the illness developed over time, so the document was insufficient. Failure to provide cold-room protective gear was an admitted breach of the duty of care.
Whether the failure to identify the specific chemicals defeated the respondent's claim
The claim on chemicals was unproven for want of specificity and expert evidence, but this did not defeat the claim because the harm was also attributed to exposure to cold, which the appellant did not rebut.
The court agreed with Homegrown (K) Limited that specific chemicals should be identified through expert evidence on a scientific basis. The pleadings and medical report lacked specificity on the chemicals. However, since the pleaded harm was attributable to both cold and chemicals, and the appellant's evidence failed to rebut the cold-exposure causation, the claim survived on that limb.
Whether the award of Kshs. 200,000 general damages was excessive
No. Considering the nature of the harm (a fully-healed upper respiratory tract infection), the age of comparable decisions and inflation, the award was adequate and not excessive.
Applying Gicheru v Morton and Kemfro Africa principles, the court found no wrong principle or erroneous estimate. Comparing Paul Gakunu (Kshs. 750,000 for chronic, permanent byssinosis) and George Morara (Kshs. 100,000 in an older decision for similar infection), and factoring inflation, the court held Kshs. 200,000 appropriate for an infection from which the respondent had fully healed.
Whether failure to consider the appellant's submissions vitiates the trial judgment
No. Although the trial judgment did not mention the submissions, such failure will not ordinarily justify setting aside the judgment, particularly where the record shows the matter was otherwise properly considered.
The court acknowledged the omission but held, in light of its own fresh evaluation mandate as a first appellate court, that the unexplained failure could not be a ground to unseat the judgment. It deprecated the splitting of appeal grounds as poor draftsmanship and urged trial courts to identify issues for determination.
Legal principles established
#- A first appellate court must subject the evidence placed before the trial court to fresh scrutiny and reach its own independent conclusions while making due allowance for not having seen or heard the witnesses
- An appellate court may only interfere with an award of general damages where the trial judge acted on a wrong principle or the award is so inordinately high or low as to be an entirely erroneous estimate
- An employer who fails to discharge its statutory duty to keep employment records (duty allocation rosters) cannot fault the court for finding that the employee's duties extended to the area of harm
- Failure by a subordinate court to consider or record consideration of parties' submissions will not, more often than not, justify setting aside its judgment on appeal
- Special damages must be specifically pleaded and strictly proved
- Comparable injuries should as far as possible attract comparable awards
Court orders
#- 1.The present Appeal is dismissed with costs
- 2.Costs of the Appeal to be borne by the Appellant
- On appeal from
- Resident Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (appeal by way of retrial per Selle v Associated Motor Boat Co.)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P.J. Dave Flowers Limited v Barasa (Appeal 25 of 2018) [2023] KEELRC 3320 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 15th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3320/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.