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ELRCPartially AllowedAppeal No. 11 of 2018

Carzan Flowers Limited v Zachary Mwangi Njogu [2020] KEELRC 1056 (KLR)

Employment and Labour Relations Court of Kenya
27 April 2020
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer failed to overturn a workplace injury ruling after its own accident records appeared altered, confirming workers can win injury claims even without occurrence book entries.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nakuru against the judgment of Hon. L Komingoi, Senior Principal Magistrate, in Nakuru CMCC No. 55 of 2007. The respondent, a casual worker at the appellant's flower farm, claimed he was injured on both legs on 23rd March 2005 when broken plastic pipes burst and pricked him at his workplace, allegedly due to the appellant's negligence and failure to provide protective gear. The trial court found the appellant liable, apportioned liability at 70% to 30% in the respondent's favour, and awarded damages with costs. The appellant appealed on seven grounds, contending the burden of proof was shifted onto it, the evidence was contradictory and uncorroborated, the absence of an occurrence book entry and treatment card defeated the claim, and the damages were excessive. The court, re-evaluating the evidence as a first appellate court, found the respondent had established his case on a balance of probabilities through his testimony, the supervisor and nurse who accompanied him to Rongai Health Centre, and the medical notes; the appellant's witness was not the direct supervisor and the accident record had been altered. The appeal on liability was dismissed. On quantum, the court found the injuries superficial and healed, and within the range of comparable awards for similar leg injuries in 2004-2005, confirmed the award of Kshs 50,000 as general damages. Each party was ordered to bear its own costs of the appeal. Judgment was delivered electronically on 27th April 2020 pursuant to COVID-19 court directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in shifting the burden of proof and in finding the appellant liable, apportioning liability at 70% to 30% in favour of the respondent
  2. 2.Whether the evidence of injury was credible in the absence of an occurrence book entry and the initial treatment card
  3. 3.Whether the award of general damages was excessive and based on wrong principles

Key legal issues

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01

Liability of the employer for workplace injury and apportionment at 70:30

Holding

The trial court properly found the respondent was injured at work and correctly apportioned liability; the appeal on liability lacks merit

Reasoning

The respondent established employment and injury in the course of work, corroborated by the supervisor, the nurse and medical notes from Rongai Health Centre. The appellant's witness was not the direct supervisor and those who accompanied the respondent were not called. The accident record had been altered, undermining its credibility. Liability apportionment at 70% to 30% was a proper exercise of discretion.

p. 2
02

Reliance on section 13(1)(a) of the Occupational Safety and Health Act

Holding

The statute relied on by the appellant was not in operation at the time of the accident or filing of suit, and was immaterial

Reasoning

The appellant anchored its submissions on section 13(1)(a) of the Occupational Safety and Health Act, but that Act came into force after the accident of 23rd March 2005 and after filing of the suit in 2006. The court therefore disregarded the provision as immaterial to the determination of liability.

p. 2
03

Quantum of general damages

Holding

The injuries were superficial and had healed well; the award of Kshs 50,000 is confirmed as not excessive within the range of comparable awards

Reasoning

The court found the injuries minor and superficial, with Dr Omuyoma finding only scars a year later. Comparing awards for similar leg injuries around 2004-2005 ranging from Kshs 40,000 to 50,000, the trial court applied the upper limit; Kshs 50,000 was neither too high nor excessive and the award was accordingly reviewed to that figure.

p. 3

Legal principles established

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  • On a first appeal, the court may re-evaluate the evidence but will not lightly differ with the trial court on findings of fact because the trial court had the advantage of hearing and seeing the witnesses
  • Once a plaintiff establishes injury arising in the course of employment on a balance of probabilities, the employer bears the burden of proving there was no accident or negligence on its part

Court orders

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  1. 1.The appeal on liability is dismissed
  2. 2.The award of general damages is reviewed and confirmed at Kshs 50,000
  3. 3.Each party shall bear own costs of the appeal
  4. 4.Judgment delivered electronically via e-mail in line with COVID-19 directions issued by the Chief Justice on 15th March 2020

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nakuru
Nakuru CMCC No. 55 of 2007
Jurisdiction invoked
First appellate jurisdiction over an appeal from the magistrates' court in a labour-related personal injury suit (ELRC at Nakuru, Appeal No. 11 of 2018)

Relief refused

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Review and/or setting aside of the judgment and decree of the trial court on liability

The respondent had established his case on a balance of probabilities; the trial court properly apportioned liability

p. 3

Costs

Each party shall bear own costs of the appeal

Quotable passages

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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 learned trial magistrate appreciated the evidence adduced and made a proper finding and the appeal on liability lacks merit and is hereby dismissed.
p. 3Dismissal of appeal on liability
According, the appeal on liability fails and there is a review of the award of general damages awarded at Ksh.50,000. Each party shall bear own costs of the appeal.
p. 3Final orders - disposition
On a balance of probabilities, the trial court assessed the matter and taking into account the chances of contribution by the respondent in failing to take personal precaution, correctly held each party liable and apportioned liability at 70% to 30% for the respondent.
p. 2Apportionment of liability
The trial court observed that the accident record had been altered creating the inference that it was not credible.
p. 2Credibility of the accident record

Issues in the judgment

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minor

Conflicting dates for the trial court's judgment are given in the judgment

minor

The date of the trial judgment is variously given as 2012, 2017 and 2002

minor

The appellant's relief is stated as seeking review of a judgment 'delivered on 31 st May, 2002', inconsistent with the trial judgment date elsewhere

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, "Carzan Flowers Limited v Zachary Mwangi Njogu [2020] KEELRC 1056 (KLR)", Case Analysis (2020). Appeal No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1056/eng@2020-04-27

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