George Onyango Oyoo & another v Securicor Security Services (K) Ltd [2019] KECA 314 (KLR)
The bottom line
#The Court of Appeal dismissed a security guard's injury claim against Securicor, confirming employers must only provide reasonable safety measures, not guarantee workers' safety.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was negligence, and breach of statutory and/or contractual obligation, proved against the respondent?
- 2.Does the doctrine of res ipsa loquitur apply?
- 3.Does the doctrine of volenti non fit injuria apply?
- 4.Was the trial court justified in dismissing the appellant's suit?
Key legal issues
#Whether the respondent was negligent or in breach of statutory/contractual obligation
Not proved. The respondent provided the equipment required by law and industry practice; bullet-proof vests and firearms were restricted and not required under the applicable regulations, so there was no breach.
The court re-evaluated the evidence as a first appeal under Rule 29(1)(a). The respondent tendered expert and factual evidence showing compliance with Legal Notice No. 24 of 1998 and industry practice; the trial court, which saw the witnesses, accepted that explanation. The appellant did not specify the statutory provisions breached. The danger of armed attack was inherent in security work, and the respondent had supplied uniform, whistle, club, torch, alarm systems, supervisor and back-up team, discharging its duty of reasonable care.
Whether res ipsa loquitur applies
It does not, because the facts leading to the injury are sufficiently known; moreover, the maxim need not be pleaded since it is not a doctrine but an evidential guide.
The court adopted its earlier reasoning that the maxim is no more than a common-sense approach to assessing evidence, not a principle of law raising any presumption, quoting Hobhouse LJ that it should be replaced by 'a prima facie case'. Here both sides adduced evidence establishing the facts of the shooting, so the case is not one where the facts speak for themselves. The court also corrected the High Court's view that the maxim had to be pleaded, citing Nandwa v Kenya Kazi Ltd.
Whether volenti non fit injuria applies to an inherently dangerous occupation
The trial court erred; the doctrine does not apply because a security guard does not freely and voluntarily expose himself to danger with full knowledge of the risk, and the doctrine cannot supplant the employer's duty of care.
The court aligned itself with Makala Mailu Mumende v Nyali Golf & Country Club: merely accepting an inherently dangerous job is no warrant for the employer to neglect minimum reasonable measures of protection. The doctrine's illustrative cases involve truly voluntary assumption of risk (intermeddling with an unexploded bomb, walking on an unfenced cliff edge), not ordinary employment. The employer's statutory, contractual and common law duty of care remains intact.
Whether the appellant acted in breach of his own statutory safety duty
By confronting a four-man armed gang instead of raising the alarm as trained, the appellant failed to ensure his own safety, though the trial court rightly found this did not amount to contributory negligence.
Section 13(1)(a) of the Occupational Safety and Health Act obliges every employee to ensure his own safety and health at the workplace. The appellant single-handedly confronted armed robbers contrary to his training to raise an alarm. The trial court found he was courageous but imprudent, yet not negligent or recklessly disregardful of his own safety, a finding the Court of Appeal endorsed by agreeing with the quoted passage.
Legal principles established
#- An employer owes no absolute duty to the employee; the only duty is one of reasonable care against risks of injury caused by reasonably foreseeable events or preventable by reasonable precaution, and the burden of proving breach lies on the employee.
- Accepting an inherently dangerous job such as security work is no defence for an employer who fails to provide minimum reasonable measures of protection; volenti non fit injuria does not supplant the employer's statutory, contractual or common law duty of care.
- Res ipsa loquitur does not apply where the facts leading to the injury are sufficiently known, and it need not be pleaded because it is evidence, not a cause of action.
- An employee also bears a statutory duty to ensure his own safety and health at the workplace under the Occupational Safety and Health Act.
Court orders
#- 1.The finding of the trial court that the doctrine of volenti non fit injuria applies is set aside
- 2.The decision of the trial court on liability is otherwise affirmed and the appeal is dismissed
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 815 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a)); appellate review of the High Court judgment
Relief refused
#Setting aside the finding that the respondent was not liable and entering judgment for the damages assessed by the High Court (KSh. 9,023,000)
The appellant failed to prove negligence or breach of statutory or contractual obligation on a balance of probability; the respondent supplied the minimum reasonable measures of protection in the Kenyan security industry
Loss of consortium claim by the 2nd appellant
The 2nd appellant never testified before the trial court to establish her case and no findings were made with respect to her case
Costs
The appeal is dismissed but the court made no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is hereby dismissed but we make no order as to costs.
the level of duty of care imposed on the employer by statute, contract or common law is not supplanted by the doctrine of volenti non fit injuria.
It is our finding that the respondent had supplied the minimum reasonable measures of protection applicable in the Kenyan security industry
The reason is that the doctrine does not apply where the facts leading to the injury are sufficiently known.
We have re-evaluated the evidence on the first issue and find, with respect, that there was sufficient basis for the trial court to come to that conclusion.
With respect, we beg to differ. The simple principle is that 'to no one who volunteers, no harm is done'.
Issues in the judgment
#The long quotation from Halsbury's Laws of England in the judgment is visibly garbled by typographical corruption and does not read as coherent text
The judgment alternately describes the second appellant as the 2nd respondent in one passage, an apparent drafting slip
The passage quoting the 1st appellant's evidence on tenure is corrupted ('worked for ten (10) years 12')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Onyango Oyoo & another v Securicor Security Services (K) Ltd [2019] KECA 314 (KLR)", Case Analysis (2019). Civil Appeal No. 62 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/314/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.