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High CourtDismissedCivil Appeal 761 of 2006

Bhupco Textile Mills Ltd v Constantine Okello Ofunya

High Court of Kenya
6 May 2009
HOH. M. Okwengu
1,249 words in judgment
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The bottom line

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Kenya's High Court confirmed employers must actively provide and enforce protective gear, not just store it, and upheld the worker's full award.

What this practically means

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Executive summary

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The appellant, Bhupco Textile Mills Ltd, appealed against the judgment of the Resident Magistrate at Kandara in CMCC No. 19 of 2000, which awarded the respondent, Constantine Okello Ofunya, general damages of Kshs.65,000/= and special damages of Kshs.2,000/= for an eye injury sustained during employment. The respondent, an employee, was injured while fitting a bearing on a humidifier machine suspended on a roof, when a metal shaft entered his eye in poor lighting conditions. He blamed the appellant for failing to provide goggles and a helmet. The appellant denied negligence, alleging the injury was caused by the respondent's own negligence, and called two witnesses who testified that protective clothing was available to workers upon request, though the respondent did not ask for goggles. Okwengu J reconsidered the evidence and found that the employer's duty extended beyond merely keeping protective clothing in stores: the employer was obliged to provide the equipment and ensure safety precautions were observed. With no evidence that goggles were issued or that mechanisms ensured their use, and the foreseeable risk of foreign particles entering the eye during upward work, the court held the trial magistrate was right to find the appellant fully liable. On quantum, applying Kemfro Africa Ltd v Lubia, the court found nothing to show the award was based on wrong principles or was excessive or too low, the injuries being temporal inflammation of the right eye. The nine grounds of appeal failed and the appeal was dismissed with costs on 6 May 2009.

Key legal issues

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01

Employer's duty to provide protective equipment

Holding

The employer was 100% liable for failing to provide and enforce use of eye goggles where eye injury was reasonably foreseeable

Reasoning

The employer's claim that goggles were available on request was insufficient. The duty was to provide protective clothing and ensure safety precautions were observed. No evidence showed goggles were given or mechanisms enforced. The work required looking upward, making eye injury reasonably foreseeable.

p. 2
02

Appellate interference with quantum

Holding

The award of Kshs.65,000/= was neither based on wrong principles nor excessive; the magistrate properly considered comparable awards and inflation

Reasoning

Applying the Kemfro Africa standard, the court found no irrelevant factor considered or relevant factor omitted. The injuries were temporal inflammation of the right eye with cornea irritation, and the trial magistrate considered cited authorities and inflation.

p. 3

Legal principles established

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  • An appellate court interferes with damages only where an irrelevant factor was considered, a relevant factor omitted, or the award is so high or low as to be an erroneous estimate
  • An employer must not merely make protective clothing available on request but must provide it and ensure its use

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
Resident Magistrate's Court at Kandara
CMCC No. 19 of 2000
Jurisdiction invoked
First appellate jurisdiction over the Resident Magistrate's Court (CMCC No. 19 of 2000)

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, "Bhupco Textile Mills Ltd v Constantine Okello Ofunya", Case Analysis (2009). Civil Appeal 761 of 2006. Source:

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