Bigot Flowers (K) Limited v Isaac Nyamainyeria Omabene [2020] KEELRC 866 (KLR)
The bottom line
#A Kenyan court cut an employer's liability for a worker's injury from 100% to 50%, because both faulty safety gear and the worker's own carelessness caused the accident.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant employer was negligent and in breach of duty to the respondent employee
The appellant owed a common law duty of care and failed in part by issuing worn-out gumboots, but precautions had been put in place; liability was shared
The court restated the employer's duty to provide a safe workplace and adequate protective gear. The respondent was issued gumboots, though worn out, and the watery irrigated ground was known to him. Both parties were at fault: the employer for defective gear, the employee for exposing himself to injury under section 13 of the Occupational Safety and Health Act. Liability was therefore apportioned equally.
Apportionment of liability between employer and employee
The trial court's finding of 100% liability was set aside and liability apportioned at 50%:50% on both causation and blameworthiness
Relying on the principles in Peter Bernard Makau v Prime Steel Limited on causation and blameworthiness, and Amalgamated Saw Mills v David K. Kariuki on the employee's own precautions, the court held the employee bore responsibility for his own safety. Equal apportionment reflected each party's fault.
Whether the quantum of damages should be disturbed
The award of general and special damages was left undisturbed
The injury to the right knee joint was proved and assessed as grievous harm with a temporary disability. The appellant did not demonstrate that the trial magistrate considered an irrelevant factor or that the award was so low as to occasion injustice. The court found no reason to disturb quantum, only to reflect the reviewed liability ratio.
Legal principles established
#- An employer owes a common law duty to take reasonable care for the safety of employees, including providing adequate protective gear; where worn-out protective clothing is issued, the employer has not fully fulfilled that duty
- Under section 13 of the Occupational Safety and Health Act, 2007, an employee is under a statutory duty to ensure his own safety and health at the workplace, which is relevant to apportionment of liability
- No amount of money can restore an injury or a lost limb; damages awards will not be disturbed absent a showing that an irrelevant factor was considered or the award occasioned injustice
Court orders
#- 1.The appeal partially succeeds on the issue of liability, which is apportioned at 50%:50% between the parties
- 2.The judgment in Naivasha PMCC No. 1041 of 2007 is reviewed on liability; quantum assessed shall reflect the reviewed liability ratio
- 3.Each party shall bear own costs for the appeal
- On appeal from
- Senior Resident Magistrate's Court, Naivasha
- Naivasha PMCC No. 1041 of 2007
- Jurisdiction invoked
- First appeal from the subordinate court to the Employment and Labour Relations Court (appeal formerly Nakuru High Court Civil Appeal No. 210 of 2009)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bigot Flowers (K) Limited v Isaac Nyamainyeria Omabene [2020] KEELRC 866 (KLR)", Case Analysis (2020). Appeal No. 10 of 2019 (Formerly Nakuru High Court Civil Appeal No. 210 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/866/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.