Ogada v Fargo Courier (Appeal E113 of 2023) [2023] KEELRC 3135 (KLR)
The bottom line
#A Kenyan High Court ruled an employer must prove safety measures existed before any blame for a workplace injury can be shifted to the injured worker.
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 learned magistrate erred in law and fact in apportioning liability at 50%:50% and not 100% as against the respondent
- 2.Whether the appellant was entitled to the orders sought
Key legal issues
#Whether the trial magistrate erred in apportioning liability equally between employer and employee
Yes. The employer bore the first obligation under sections 6 and 13 of the Occupational Safety and Health Act to provide a safe workplace and system of work, and the respondent led no evidence of such measures or of the appellant's failure to adhere to them; the magistrate's inference that the appellant was 'in a rush and hasty' had no evidential basis.
The employer's duty of care is to provide a safe working environment and system of work. The respondent called only one witness, a doctor who examined the injury, and never called any witness from the premises where the accident occurred, such as the human resource manager and general manager. No evidence was tendered to show the appellant contributed to the accident. The magistrate's finding of contributory negligence was therefore an assumption of facts not in evidence, and the 50% apportionment was erroneous in law and fact.
Legal principles established
#- A first appellate court must re-evaluate the evidence and arrive at its own independent conclusions, though it bears in mind it neither saw nor heard the witnesses.
- Under sections 6 and 13 of the Occupational Safety and Health Act, the first obligation to provide a safe working place and system of work rests on the employer; contributory negligence cannot be apportioned to an employee before the employer demonstrates the safety measures in place and how the employee failed to adhere to them.
Court orders
#- 1.Appeal allowed
- 2.Order of the trial court apportioning liability at 50% substituted with an order of 100% liability as against the respondent
- 3.Other findings and orders of the trial court upheld
- 4.Appellant awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 2548 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court decree (appeal by way of retrial on the trial court's findings of fact and law)
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.
In conclusion the Court hereby allows the Appeal and substitutes the order of the trial Court apportioning liability at 50% with an order of 100% liability as against the respondent.
It is the duty of this Court as a first appellate to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the Appeal.
A reading of the above two sections of the Occupational Safety and Health Act, places a first obligation to provide a safe working place and system of work on the employer.
The respondent never called any witness from the respondent premises where the accident took place. One would have expected the respondent to call either Mr. Kabiru (senior human resource manager) and the general manager Mr. Kavera who took the appellant to hospital.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogada v Fargo Courier (Appeal E113 of 2023) [2023] KEELRC 3135 (KLR)", Case Analysis (2023). Milimani CMCC No. 2548 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3135/eng@2023-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.