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ELRCDismissedCivil Appeal arising from Kajiado Principal Magistrate's Court Civil Suit No. 355 of 2015· [2024] KEELRC 1151 (KLR)

PJ Dave Flowers v Muhangani (Appeal 40 of 2018) [2024] KEELRC 1151 (KLR)

High Court of Kenya
19 April 2024
SRStella Rutto
3,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed an employer must prove it provided protective gear during the illness period, or it will pay for workplace-caused sickness.

What this practically means

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Executive summary

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The Appellant employer appealed against a judgment of the Principal Magistrate's Court at Kajiado (Civil Suit No. 355 of 2015) in which the Respondent, a former flower grader, had succeeded in a claim for an occupational ailment. The Respondent alleged that from February 2013, grading flowers next to the cold room caused chest pains, breathing difficulty, chronic bronchitis and repeated admissions for pneumonia. The trial court found the Appellant 80% liable and awarded general damages of Kshs 180,000 (net Kshs 144,000) plus special damages of Kshs 3,000, costs and interest. On appeal, the Appellant contended the finding on liability was speculative, that protective clothing had been provided, and that the damages were excessive, proposing Kshs 50,000. The Respondent filed no submissions. Applying the first-appeal duty in Selle v Associated Motor Boat Co., Rutto J re-evaluated the evidence. The PPE issuance form showed protective equipment was issued only in March and April 2014, after the alleged onset of illness, and the muster roll produced covered February 2014, not the material period. Relying on Section 6(1) of the Occupational Safety and Health Act and Wilson & Clyde Coal Co. v English, the Court held the employer liable. On quantum, applying Catholic Diocese of Kisumu v Tete and comparable occupational-injury awards, the Court found Kshs 144,000 fair given the absence of permanent disability. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Employer's liability for occupational ailment (chronic bronchitis/pneumonia) allegedly caused by cold-room working conditions

Holding

The Appellant was liable because it failed to prove the Respondent was provided with protective gear during the material period (February 2013 onwards), and the pneumonia was more than probably caused by workplace conditions near the cold room.

Reasoning

The PPE issuance form showed protective equipment was only issued on 25th March 2014 and 2nd April 2014, well after the alleged onset of illness in February 2013. The muster roll produced related to February 2014, not the claimed period. Dr. Okere's report attributed the chronic bronchitis to lack of proper protective gear, and Dr. Wokabi found no residual health problems at examination, indicating the condition was workplace-triggered. The burden lay on the employer to demonstrate a safe system of work.

p. 5
02

Whether the general damages award of Kshs 180,000 (reduced to Kshs 144,000 after 80:20 apportionment) was excessive

Holding

The award was fair and comparable to awards in similar occupational-injury cases; no basis existed to interfere.

Reasoning

Guided by Catholic Diocese of Kisumu v Sophia Achieng Tete and Arrow Car v Bimomo, the Court compared the award with similar occupational-injury decisions: Purity Wambui Murithii (Kshs 150,000 for soft tissue injuries), Sylvester Oduor Othwila (Kshs 225,000 for chest problems from spraying), and Faith Mutindi Kasyoka (Kshs 300,000 for inhalation injuries). Against those comparators, and given no permanent disability, the trial court's award was fair.

p. 6

Legal principles established

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  • On a first appeal, the court must revisit and exhaustively re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses.
  • Every employer/occupier has a statutory duty to ensure the safety, health and welfare of all persons working in the workplace, and is liable for injury resulting from failure to do so.
  • An appellate court may interfere with an award of damages only where the trial court applied wrong principles, misapprehended the evidence, or arrived at an entirely erroneous estimate.
  • Comparable injuries should, as far as possible, be compensated by comparable awards.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Appellant shall bear the costs in this Court and at the trial Court

Authorities

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Legislation

  • Occupational Safety and Health ActSection 6(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Selle & Another vs Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Wilson & Clyde Coal Co. vs English
    (1938) AC 579
  • Catholic Diocese of Kisumu vs Sophia Achieng Tete
    [2004] 2 KLR 55
  • Arrow Car Limited vs Bimomo & 2 others
    [2004] 2 KLR 101
  • Purity Wambui Murithii vs Highlands Mineral Water Co. Ltd
    [2015] eKLR
  • Sylvester Oduor Othwila vs Phoenix Aviation Limited
    (2014)
  • Faith Mutindi Kasyoka vs Safepark Limited
    [2019] eKLR
On appeal from
Principal Magistrate's Court at Kajiado
Civil Suit No. 355 of 2015
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Memorandum of Appeal dated 9th November 2016)

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, "PJ Dave Flowers v Muhangani (Appeal 40 of 2018) [2024] KEELRC 1151 (KLR)", Case Analysis (2024). Civil Appeal arising from Kajiado Principal Magistrate's Court Civil Suit No. 355 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1151/eng@2024-04-19

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