https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2379

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS** **APPEAL NO. E031 OF 2025** **CHARLES MWITI GICHIU APPELLANT** *VERSUS* **ABYSSINIA IRON STEEL MILLS LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. Grace Omodho delivered on 29 April 2025 in Machakos MCCC No. 415 of 2017]** **JUDGMENT** The appeal arises from the judgment delivered on 29 April 2025 in Machakos MCCC No. 415 of 2017. The appellant is seeking that the judgment be set aside on the grounds: 1. *The learned magistrate erred in law and fact in not giving sufficient consideration to the weight of the evidence by the appellant.* 2. *The learned magistrate reached a wrong decision in law and fact contrary to the weight of the evidence.* 3. *The learned magistrate erred in law and fact by finding that there was no sufficient evidence to support that the appellant was an employee of the respondent, a fact which is contrary to the weight of the evidence.* The background to the appeal is a claim filed by the appellant before the trial court. His case was that the respondent employed him and agreed to take all reasonable precautions for safety during work, and hence not to expose the appellant to the risk of damage, injury, or loss. There was an agreement that the respondent would ensure the provision of adequate and suitable plant and appliances to enable the appellant to carry out his work safely and in accordance with a safe system of work. However, on 22 February 2016, the appellant, while at work, the respondent provided an unsafe working system and while carrying metal rods in the company premises, a fellow worker recklessly and without notice dropped his end of the metallic rods, making the end the appellant was holding jerk up, hitting him on the mouth; as a result, he sustained serious injuries. He suffered loss, damage and pain due to the negligence, carelessness, breach of statutory duty and breach of contract by the respondent. The appellant’s case was also that the breaches arose from being placed in an unsafe system of work, failure to warn him of the dangers and being exposed to dangers which the respondent ought to have addressed. He thus suffered severe pain and bleeding and 5 broken teeth which had to be removed. He thus claimed the following: 1. General damages. 2. Special damages for the medical report Ksh. 3,000. 3. Costs of the suit plus interest. In reply, the respondent denied the appellant's allegations and stated that no accident was reported on the premises on 22 February 2016. The appellant did not sustain any injuries while working for the respondent as alleged. The appellant was neither denied a safe working environment nor exposed to injury, loss, or damage, as alleged. Without prejudice, the response was that, while at work, the appellant exposed himself to injury by failing to wear the protective gear provided. He failed to take proper precautions and pay attention to his work by engaging in meaningless chitchat with others instead of concentrating on his work. The appellant exposed himself by taking the mobile phone while working in a busy industry. The claims made are not justified. In the judgment, the learned trial magistrate held that the claim that the appellant was injured while working for the respondent lacked support of any employment relationship. The case of being injured while at work did not arise. The alleged injury on 22 February 2016 is not probable because a hospital visit was not made until the next day. Such serious injuries should have been addressed immediately, but they were not. Hence, without establishing the employment relationship, the trial court could not determine the claims. The case was dismissed with costs to the respondent. On appeal, the appellant submitted that the judgment of the trial court should be set aside on the finding that there was no employment relationship, and hence the court failed to assess the claims made by the appellant. To establish whether there is an employment relationship, the court in **Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospital and Allied Workers & others (interested parties) Petition E237 of 2023** held that one must establish the existence or non-existence of an oral or written contract of service. The provision of a service to a real or legal person and receipt of wage or salary for the service. In this case, the appellant proved that the respondent employed him at the time of the accident on 22 February 2016. The respondent did not challenge the evidence presented in court. The employer had the duty to produce work records, which it failed to do. In his evidence in chief, the appellant testified to the fact that he was injured while working for the respondent. His wages were paid in cash, and the employer, the respondent, kept the records. There were no statutory dues paid for the benefits of the appellant to assist in corroborating his evidence. The injuries suffered by the appellant align with the medical report and evidence. The respondent did not call any evidence or produce gate logs, CCTV coverage or medical records. The claims made should be assessed and awarded as pleaded. The respondent did not file any written submissions on the appeal. **Determination** This is a first appeal. The court is required to review the record, reassess the findings, and make a conclusion. However, consider that the trial court had a chance to see and hear the witnesses and hence make this provision. The appellant’s case is premised on assertions that on 22 February 2016, while working for the respondent, he suffered a work injury. He does not define the nature of his employment save that he was carrying metal rods with another unnamed employee. The appellant denied the employment relationship. There are no work records produced as required under section 10(6) and (7) of the Employment Act. It is the word of the appellant claiming to be an employee against the respondent, sued as the employer. It is important to review the history of work injury claims, such as the one filed by the appellant before the trial court on **27 March 2017**. At the time of filing the claim, pending was **Supreme Court Petition No. 4 of 2019 – Law Society of Kenya v Attorney General and COTU** following judgment of the Court of Appeal delivered on **17 November 2017** allowing in part **Civil Appeal No. 133 of 2011 Attorney General v Law Society of Kenya & another [2017] KECA 176 (KLR)**. The matter pending before the Court of Appeal related to a High Court Judgment delivered on 4 March 2009 in **H.C. Petition 185 of 2008 Law Society of Kenya v Attorney General & another.** The High Court declared the various provisions of the Work Injury Benefits Act unconstitutional, including the hearing of claims before the Director. Within this background, the appellant asserts he was injured while at work with the respondent on 22 February 2016. The judgment before the High Court in Petition 185 of 2008 applied to his case, as it was the subsisting lawful order of the court. Work injury connotes the presence of a claimant at the shop floor. One may be an employee, a casual employee, or, as the case may be, be found present on the shop floor at the time of the accident. Whereas the appellant claimed to have been employed by the respondent, he did not state in the pleadings his position or terms and conditions or in his evidence the nature of his employment. The respondent, too, did not keep work records to confirm the persons permitted to be present on the shop floor on 22 February 2016, to justify that the appellant was not among those lifting metal rods and hence was injured. In the given circumstances, under work relations as presented by the appellant, being present and having been injured, upon his claim, the respondent had a duty to submit the necessary shop-floor records to confirm the status. This was not done. The evidence by the appellant is taken as presented; the respondent assigned him duties, and while at it, he suffered injury and broke 5 teeth which had to be removed. While on the shop floor, the employer, such as the respondent, had a legal duty to protect employees and persons assigned work, including those involved in lifting metal rods. This is the purpose of the Work Injury Benefits Act: to secure all persons in the workspace, such as the appellant. The appellant claimed that he suffered injury due to the respondent's negligence and breach of contract and statutory duty. The respondent failed to take measures to ensure his safety while at work. The learned magistrate erred in not addressing the claim by the appellant as a whole and solely relied on the existence or non-existence of an employment relationship in the context of the work injury claim. Was the respondent negligent and was there a breach of statutory duty? In the case of **Makala Mailu Mumende v Nyali Golf County Club [1991] KLR 13,** the court held: *… no employer in the position of the defendant would warrant the total continuous security of an employee engaged in the kind of work the plaintiff was engaged in, but inherently dangerous. An employer is expected to reasonably take steps in respect of the employment to lessen danger or injury to the employee. It is the employer’s responsibility to ensure a safe working place for its employees.* On the shop floor, the employer has a duty to take reasonable care for the safety of employees in all the circumstances, so as not to expose them to unnecessary risk. Where then an employee is injured simply because the employer has not taken such reasonable measures to provide the necessary safety devices, gear or protective clothing, it is sufficient and, in general, satisfactory to say that the employer has not fulfilled its duty. In this case, the appellant testified that he was allocated duties in lifting metal rods. He was not provided with any safety or adequate protective gear. No precautions were put in place or brought to the employee's attention. The accident and injury to the appellant, as the employee, caused him injury, pain and damage. In this case, the court finds that the respondent owed a common-law duty of care to ensure the appellant's safety while the appellant was on duty. Whereas the employee was under a duty to ensure his own safety and health and avoid acts or omissions leading to injury pursuant to section 13 of the Occupational Health and Safety Act, 2007. Section 13(1)(a*)* of the Occupational Safety and Health Act, which provides**;** ***13(1) Every employee shall, while at the workplace: -*** 1. ***Ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace.*** The rationale is that an employer cannot keep watch over an employee continuously to undertake his duties, as held in Amalgamated **Saw Mills versus David K. Kariuki [2016] eKLR;** *An employer cannot babysit an employee, especially for manual tasks that require no special training or supervision. He must work and at the same time take precautions on* *his own security and safety. …* Therefore, in apportioning liability, the trial court ought to have considered the above and the principles in the case of **Peter Bernard Makau versus Prime Steel Limited [2018] eKLR** that; *It is true that there are two possible ways a court can apportion liability for negligence. One is on causation; secondly, on blameworthiness. The appellant sued the respondent for negligence arising from a breach of the care owed as a term of employment; a trial court should make clear what the appellant's negligence entails: Does it involve the events that caused the injury or the severity of the injury? These questions must be answered if no provisions exist in the statute.* In this regard, each party at fault, one failing to ensure the common law duty of care and the other exposing himself to injury, on both causation and capability, a 50%:50% liability ought to have applied in this case. On the quantum assessed, it is not in dispute that the respondent suffered injury to his 5 teeth. He was assessed by a dentist, Charles Mwiti and a medical report was issued dated 6 September 2016. It was noted that he had injuries to the mouth and lost one central incisor tooth. He had pain in the upper and lower jaws with an inability to chew food. On this evidence, it is clear that the major injury was to the central incisor tooth. At the trial, both counsels made submissions relying on various authorities on the award of damages for pain and suffering. The learned magistrate analysed the facts and the referenced cases and held that, had the matter been proved, an award of Ksh. 300,000 would have been issued for the loss of two teeth. However, the appellant lost a single tooth. In [**Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] KEHC 8702 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/8702/eng%402021-02-25) and in **Maintenance Ltd & another v W A (A minor suing through next friend and father S K H [2015] eKLR, the claimants had multiple injuries including loss of a tooth and were awarded Ksh. 1,000,000.** **In** [**Watu Credit Co Limited v Matere [2025] KEHC 2608 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/2608/eng%402025-03-13), in a case of complex multiple fractures to the head and teeth, an award of Ksh. 750,000 was made. In **Kavavu v Muli [2026] KEHC 11214 (KLR) and Limiri v Murungi [2026] KEHC 10067 (KLR)** for various injuries including loss of a tooth, the court awarded Ksh. 400,000. The assessment by the learned magistrate on the award of Ksh. 300,000 is fair and reasonable subject to the 50%:50% apportionment of liability. **In the circumstances, the appeal lodged by the appellant is with merit. There was an employment relationship, and the appellant suffered injury and paid damages. Liability is hereby apportioned at 50%:50% on the award of damages at Ksh. 300,000, and therefore review the judgment in Mavoko MCCC No. 415 of 2017. Quantum assessed shall reflect the reviewed liability ratio.** **50% of the costs of the appeal awarded to the appellant.** **Delivered in open court this 7 day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**