Palmac Agriculture Services Limited v Benard Ondieki Getiro (Appeal 5 of 2019) [2020] KEELRC 1434 (KLR)
The bottom line
#A Kenyan court halved an employer's liability for a workplace injury because the employee ignored protective gear he had been given.
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 magistrate had jurisdiction to hear a work injury claim under WIBA, given section 16 as read with section 58(2) of the Work Injury Benefits Act, 2007 and the decision in Attorney General v Law Society of Kenya
- 2.Whether the respondent proved negligence/breach of statutory duty against the appellant so as to justify apportionment of liability at 10:90
- 3.Whether the respondent contributed to his own injury by failing to wear protective gear
- 4.Whether the award of general damages of Ksh.400,000 was manifestly excessive and should be disturbed
Key legal issues
#Jurisdiction of the magistrates' court over WIBA work injury claims
The trial court had jurisdiction because the cause of action arose on 4 July 2015 and the plaint was filed on 18 December 2015, before the Court of Appeal's 17 November 2017 judgment in Attorney General v Law Society of Kenya; pending suits were to be concluded in the forum in which they were commenced
The court applied the transitional principle that where a new judicial forum replaces an existing system, pending proceedings are finalised in the old forum. The respondent invoked the judicial process before the Court of Appeal's constitutional validation of WIBA's ouster provisions, so the trial magistrate's jurisdiction stood at the time of filing.
Negligence and apportionment of liability for a workplace injury
The trial court's 10:90 apportionment was varied to 50:50 because the employer had provided protective gear (gumboots and gloves) and the employee chose to work without it, contributing to his own injury
The respondent admitted on cross-examination that he had been issued gumboots, gloves and a hay fork but did not wear them because the storekeeper had not opened. The employer's duty is to provide a safe workplace and reasonable protective gear, which it did; an employee who disregards that gear cannot turn around and blame the employer.
Whether the general damages award of Ksh.400,000 was excessive
The award was not disturbed; the trial court had properly considered comparable decisions and the time factor
Applying the Butt v Khan standard, the appellate court does not interfere with a damages award unless it is an entirely erroneous estimate or founded on wrong principles. The court found the trial magistrate had properly considered decided cases and inflation, so only liability was varied, not the quantum.
Status of the Mombasa High Court decision in Juma Nyamawi Ndungo
The court treated it as bad law in view of the Supreme Court's decision in Law Society of Kenya v Attorney General, Petition No. 4 of 2019, which required that judgment to be read in the context of the Court of Appeal and Supreme Court findings
The Supreme Court had censured the Mombasa High Court for failing to await the outcome of the pending appeal and directed that the findings and orders in the Ndungo judgment be read in the context of the Court of Appeal and Supreme Court decisions. The lower courts were therefore bound to follow the Supreme Court's position on WIBA claims.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence and arrive at its own decision, while bearing in mind it did not see or hear the witnesses
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
- Where a new judicial forum is created to replace an existing system, the legislative practice is to finalise proceedings pending in the previous system there; hence suits filed before the Attorney General v Law Society of Kenya decision remained within the trial court's jurisdiction
- Not every industrial injury results in employer liability; an employee must plead and prove negligence and/or breach of statutory duty, and an employer need not babysit an employee in manual tasks
- An employee issued with protective gear who opts to work without it cannot later blame the employer for resulting injury
Court orders
#- 1.Appeal allowed only to the extent that liability is reviewed and apportioned at 50:50% between the parties
- 2.Award of general damages of Ksh.400,000 in Nakuru CMCC No. 33 of 2016 reviewed (reduced accordingly by the change in liability apportionment)
- 3.Each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nakuru Chief Magistrate's Court (Principal Magistrate Hon. B Mararo)
- Nakuru CMCC No. 33 of 2016
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court (originally filed in the High Court as Nakuru High Civil Appeal No. 195 of 2018); court exercised first appellate re-evaluation powers
Relief refused
#Setting aside the award of general damages of Ksh.400,000 as manifestly excessive
On appeal, an award of damages will not be disturbed unless inordinately high or low or based on wrong principles; the trial court had considered the injuries and time factor
Total exoneration of the appellant from liability
There was no dispute the respondent was injured at work, and the employer's duty to provide a safe workplace and protective gear remained; liability was only equalised, not reversed
Costs
Each party to 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.
Accordingly, the appeal is hereby allowed only to the extent that liability is hereby reviewed and apportioned at 50:50%. The award of general damages in Nakuru CMCC No.33 of 2016 at ksh.400,000 is hereby reviewed. Each party to bear own costs of the appeal.
the trial court had the requisite jurisdiction standing at the time to hear work injury claims.
Where the respondent opted to proceed to work without his protective apparel, he cannot turn around and blame the employer, the appellant.
an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
This being a first appeal, this court is under a duty to re-evaluate the evidence summarized above and arrive at own decision one way or another.
Issues in the judgment
#The judgment inconsistently describes the trial court's liability apportionment: elsewhere it states the ratio as 10:90 against the appellant but in discussing the trial court's reasons states 'Liability was thus 50:50 on each party' before later varying liability to 50:50
The body of the judgment does not spell out the arithmetic effect of the review of the general damages award; it states the award 'is hereby reviewed' without stating the resulting figure
The judgment contains typographical errors, e.g. 'to apportion liability and filed the appellant liable was in error' and 'Timesales'/'Timsales' spelled inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Palmac Agriculture Services Limited v Benard Ondieki Getiro (Appeal 5 of 2019) [2020] KEELRC 1434 (KLR)", Case Analysis (2020). Appeal No. 5 of 2019 (formerly Nakuru High Civil Appeal No. 195 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1434/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.