Bernard Nyanchieng'a Onyancha v Gilani's Supermarket Limited [2020] KEELRC 1068 (KLR)
The bottom line
#A Kenyan court ruled that an injured employee who ignored provided safety gear cannot blame the employer for his workplace accident.
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 dismissing the appellant's claim despite proof on a balance of probabilities
- 2.Whether the trial court wrongly evaluated the evidence and wrongly blamed the appellant for the accident
- 3.Whether the employer failed in its legal duty of care to provide a safe working environment, supervision and protective gear
- 4.Whether the assessment of damages at Ksh.60,000 was too low and warranted re-assessment
Key legal issues
#Employer's duty of care and employee's own responsibility for safety
The respondent discharged its duty by providing protective gear (gloves, tongs, long spoon), training and supervision; the appellant, who opted to drop kebabs into hot oil rather than dip them, exposed himself to danger and cannot hold the employer liable.
The court accepted the uncontradicted facts that the appellant was injured at work but found he had been issued protective gear which he did not use, had been trained and promoted from cleaner to assistant cook, and was under supervision. Where an employee deliberately disregards safety precautions and exposes himself to known danger, the employer who took reasonable measures is not liable in negligence or breach of statutory duty.
Applicable statutory regime for work injuries
The appellant's work accident claim ought to have been addressed under the Work Injury Benefits Act, 2007 rather than by an ordinary negligence suit grounded on the Occupational Safety and Health Act.
The court observed that while magistrates' courts were permitted by Practice Directions of 2011 to hear criminal matters arising from OSHA offences, work injuries remained regulated under WIBA, which provides compensation mechanisms through the Director, including shop-floor inquiries whose omission deprived the court of crucial material.
Correctness of the trial court's findings on a first appeal
The trial magistrate properly analysed the matter, applied the law and reached proper conclusions; there was nothing for the first appellate court to review, set aside or vary.
Exercising its duty to re-evaluate the evidence, the court found the trial court's dismissal of the claim, founded on the defence evidence of provision of protective gear, training and the appellant's improper method of work, was supported by the evidence and law, and confirmed the judgment.
Legal principles established
#- An employer's duty is to take reasonable care for the safety of employees in all the circumstances so as not to expose them to unnecessary risk
- An employee who deliberately exposes himself to danger, aware of the risk, cannot accuse the employer of negligence or breach of statutory duty
- Work injuries are regulated under the Work Injury Benefits Act, 2007 rather than the Occupational Safety and Health Act, 2007
- On a first appeal the court has a duty to re-evaluate the evidence and make its own findings
Court orders
#- 1.The judgment in Nakuru CMCC No.558 of 2015 is confirmed
- 2.The appeal is dismissed as lacking merit
- 3.Costs to the respondent
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. 558 of 2015
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court
Relief refused
#Setting aside the trial judgment, entry of judgment at 100% liability and re-assessment of damages at Ksh.200,000
The court found the appellant exposed himself to danger despite being provided protective gear and supervision, and found the trial magistrate's conclusions proper
Costs
Costs to the respondent
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.
Accordingly, the appeal herein is found without merit and is hereby dismissed. Costs to the respondent.
The judgement is Nakuru CMCC No.558 of 2015 is hereby confirmed.
Where the employee thus exposes self to danger deliberately, well aware that such exposure is likely to cause accident, injury and loss, he cannot then turn around and accuse the employer of negligence or breach of a statutory duty and the employment contract.
If a worker is injured just because no one has taken the trouble to provide him an obviously necessary safety devise, it is sufficient and in general, satisfactory to say that the employer has not fulfilled its duty.
Issues in the judgment
#Judgment appears internally inconsistent on whether the appellant was trained/supervised: appellant testified 'I was not trained as a chef. I was employed as a cleaner.' while the defence witness said 'He was promoted to assistant cook after training.' and the court itself finds 'There was training in this regard..'
The court initially states the ordinary claim lies under WIBA yet proceeds to decide the negligence claim on the merits and confirm the trial judgment rather than remit or strike it out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Nyanchieng'a Onyancha v Gilani's Supermarket Limited [2020] KEELRC 1068 (KLR)", Case Analysis (2020). Appeal No. 17 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1068/eng@2020-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.