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ELRCAllowedMilimani CMCC No. 2548 of 2014 (Appeal)· [2023] KEELRC 3135 (KLR)

Ogada v Fargo Courier (Appeal E113 of 2023) [2023] KEELRC 3135 (KLR)

High Court of Kenya
3 November 2023
ANAbuodha Jorum Nelson
1,953 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first appeal to the High Court against the judgment of Honourable D.A Ocharo (SRM) delivered on 5th September 2017 in Milimani CMCC No. 2548 of 2014, in which the trial magistrate had apportioned liability equally at 50% between the appellant (a motorcycle rider who fractured his left leg after slipping on oil spilt on the floor of the respondent's warehouse) and the respondent employer. The appellant collapsed his grounds of appeal into two issues: whether the magistrate erred in apportioning liability at 50%:50% rather than 100% against the respondent, and whether the appellant was entitled to the orders sought. The court, guided by Selle v Associated Motor Boat Co. Ltd, re-evaluated the evidence as a first appellate court. It noted that the respondent called only one witness, a doctor, and no witness from the premises where the accident occurred, and that no evidence was tendered to show the appellant contributed to the accident. Reading sections 6 and 13 of the Occupational Safety and Health Act, the court held that the employer bears the first obligation to provide a safe workplace and system of work, and that contributory negligence could not be apportioned before the employer demonstrated the safety measures in place and how the employee failed to adhere to them. The magistrate's inference that the appellant was 'in a rush and hasty' had no evidential basis. The appeal was allowed; the 50% apportionment was substituted with 100% liability against the respondent; the other findings and orders of the trial court were upheld; and the appellant received the costs of the appeal.

Key legal issues

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01

Whether the trial magistrate erred in apportioning liability equally between employer and employee

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Order of the trial court apportioning liability at 50% substituted with an order of 100% liability as against the respondent
  3. 3.Other findings and orders of the trial court upheld
  4. 4.Appellant awarded costs of the appeal

Authorities

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Legislation

  • Occupational Safety and Health ActSection 6 (duties of occupiers)
  • Occupational Safety and Health ActSection 13 (duties of employee)

Cases cited (4)

  • Tridev Construction v Charles W. Kasambeli
    [2015]
  • Simba Posho Mills Ltd v Fred Machira Onguti
  • Peter Benard Makau v Prime Steel Limited
    [2018]
  • Selle & another v Associated Motor Boat Co. Ltd & others
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)

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, "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.