Carzan Flowers Limited v Zachary Mwangi Njogu [2020] KEELRC 1056 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the evidence of injury was credible in the absence of an occurrence book entry and the initial treatment card
- 3.Whether the award of general damages was excessive and based on wrong principles
Key legal issues
#Liability of the employer for workplace injury and apportionment at 70:30
The trial court properly found the respondent was injured at work and correctly apportioned liability; the appeal on liability lacks merit
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.
Reliance on section 13(1)(a) of the Occupational Safety and Health Act
The statute relied on by the appellant was not in operation at the time of the accident or filing of suit, and was immaterial
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.
Quantum of general damages
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
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.
Legal principles established
#- 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
#- 1.The appeal on liability is dismissed
- 2.The award of general damages is reviewed and confirmed at Kshs 50,000
- 3.Each party shall bear own costs of the appeal
- 4.Judgment delivered electronically via e-mail in line with COVID-19 directions issued by the Chief Justice on 15th March 2020
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Each party shall bear own costs of the appeal
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 learned trial magistrate appreciated the evidence adduced and made a proper finding and the appeal on liability lacks merit and is hereby dismissed.
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.
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.
The trial court observed that the accident record had been altered creating the inference that it was not credible.
Issues in the judgment
#Conflicting dates for the trial court's judgment are given in the judgment
The date of the trial judgment is variously given as 2012, 2017 and 2002
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.