Pembe Flour Mills Ltd v Akunda & another (Employment and Labour Relations Appeal 67 of 2024) [2025] KEELRC 311 (KLR)
The bottom line
#Kenya's High Court confirmed that companies hiring outsourced labour remain legally responsible for workplace injuries on their premises.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in holding the appellant and 2nd respondent jointly and severally liable
The trial court did not err. The appellant was an occupier of the workplace under section 6 of the Occupational Safety and Health Act and retained substantial control over outsourced employees under clause 4.1 of the outsourcing contract, making it a co-employer with the 2nd respondent.
The court confirmed the injury occurred at the appellant's premises while the 1st respondent worked there. Section 6 of the Occupational Safety and Health Act imposes non-delegable duties on occupiers, a definition fitting the appellant. Even though the 2nd respondent paid salaries, the appellant retained substantial control through responsibility for operating policies, procedures and guidelines including health, safety and security policy. Following Maundu v Beiersdorf East Africa Limited, the parties were co-employers. No evidence of negligence attributable to the 1st respondent was placed before the trial court.
Whether the awards on quantum were inordinately too high
The awards were not excessive and were left undisturbed. General damages of Kshs. 2,500,000 rested on comparable injuries in Peace Kemuma Nyangera v Micheal Thuo; the decisions cited by the appellant involved non-comparable injuries. Loss of future earnings was supported by Dr. Wokabi's medical evidence, and special damages were specifically proved by receipts.
The court compared the injuries in the Peace Kemuma Nyangera decision (fractures of the sacrum, pubic ramus and ischium with haematomas) where the High Court awarded Kshs. 2,500,000, and found the trial court's award rested on comparable injuries. On loss of future earnings, Dr. Wokabi's report showed the claimant could no longer exert abdominal pressure, limiting his ability to earn as a loader; the fact he returned to work did not persuade the court to interfere. Special damages were justified by receipts and were specifically proved.
Legal principles established
#- An occupier of a workplace owes non-delegable statutory duties under section 6 of the Occupational Safety and Health Act to ensure the safety, health and welfare of all persons working in the workplace, and is liable for injuries occurring at the premises notwithstanding an outsourcing arrangement
- Where a party outsourced labour but retains substantial control over working conditions and safety policies, it becomes a co-employer and may be held jointly and severally liable for workplace injuries
- A first appellate court may reconsider and evaluate the evidence afresh but must make due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- 2.The judgment and decree of the Chief Magistrate's Court at Nairobi (Hon. G.A. Mmasi (Mrs.) S.P.M.) delivered on or about 8th February 2021 in Nairobi CMCC No. 2039 of 2017 is upheld
- On appeal from
- Chief Magistrate's Court at Nairobi
- Nairobi CMCC No. 2039 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pembe Flour Mills Ltd v Akunda & another (Employment and Labour Relations Appeal 67 of 2024) [2025] KEELRC 311 (KLR)", Case Analysis (2025). Nairobi CMCC No. 2039 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/311/eng@2025-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.