https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1833

R**EPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **APPEAL NUMBER E029 OF 2025** **BETWEEN** HYRINE GESARE MOSES ………………………………………………………………APPELLANT **AND** KONGONI RIVER FARM LIMITED [GALAXY DIVISION] ………………. RESPONDENT [An Appeal from the decision of Nathan Lutta, Chief Magistrate, dated 30th April 2025, in Naivasha C.M.C.C No. 745 OF 2016, between the Parties herein] *Rika J* *Court Assistant: Emmanuel Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *B.G. Wainaina & Company Advocates, for the Appellant.* *Murimi Ndumia Mbago & Muchela Advocates, for the Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Appellant was employed by the Respondent, as a general labourer. She used to harvest flowers. 2. She averred at the Trial Court that, on 2nd February 2016, while in the course of harvesting flowers, she was alongside her colleagues, instructed by the Respondent to move out of the greenhouse they were working in, to allow sprayers to spray the greenhouse. 3. She was still in the greenhouse, looking for her scissors, when the sprayers started spraying, filling the entire greenhouse with chemicals. 4. She averred that her eyes were injured, becoming painful and swollen, and when she approached the company clinic, the clinic did not have eye ointment. 5. She was referred to Naivasha County hospital, where she was treated for chemical conjunctivitis and chemical pneumonitis secondary to chemical inhalation. 6. She blamed the Respondent for failing to provide her a safe working environment; failure to ensure her safety; exposing her to foreseeable danger; failure to provide her with protective gear, particularly goggles, mask and spaying suit; spraying the greenhouse while the Appellant was inside; instructing the Appellant to work in a dangerous environment; and failure to train the Appellant in other safe modes of work. 7. She sued the Respondent for general and special damages, costs and interest 8. The Trial Court found in her favour, awarding general damages at Kshs. 200,000 and special damages at Kshs. 5,000, but apportioned 40% liability to her, finding that she ought not to have remained in the greenhouse looking for her tools of work, while everyone else moved out. 9. She filed Memorandum of Appeal dated 21st May 2025, listing 3 Grounds of Appeal. They are: - 10. The Trial Court erred in apportioning 40% liability on the Appellant. 11. The Trial Court disregarded authorities and submissions made by the Appellant. 12. General damages awarded were inordinately low. 13. The Appellant proposes that: - 14. The Judgment of the Trial Court is set aside and liability apportioned against the Respondent at 100%. 15. The award of general damages at Kshs. 200,000, is replaced with an award of general damages assessed at Kshs. 800,000. 1. Costs of the Appeal to the Appellant. 2. Parties agreed to have the Appeal considered and determined on the strength of the Record of Appeal and closing submissions. The Appellant confirmed filing and service of her submissions, on 28th April 2026 at the last appearance before the Court, in the absence of the Respondent. No submissions had yet, been filed by the Respondent. 3. The Appellant submits that there was no evidence adduced by the Respondent, to justify apportionment of 40% liability against the Appellant. 4. The Appellant submits that her injuries were comparable to the injuries sustained by the Plaintiff in the High Court **Civil Appeal No. 7 of 2018, Bahchu Industries Limited v. Patrick Katuva,** a judicial authority she availed to the Trial Court, in her submissions. General damages were assessed and awarded at Kshs. 800,000, and the Trial Court, ought to have been bound by the authority. **The Court Finds**: - 1. The Respondent did not give evidence to contradict the Appellant on the cause of the factory accident, and the nature of injuries sustained. 2. The Record of Appeal indicates that the Respondent attempted to introduce fresh documents at the hearing on 21st January 2025, through its human resource officer. 3. They included witness statements. 4. The Trial Court, in a ruling dated 26th February 2025, refused to admit the fresh documents. 5. There was no evidence presented by the Respondent, after this ruling. Witness statements proposed to be produced as evidence for the Respondent were declined by the Trial Court. 6. Without any evidence from the Respondent, it is difficult to justify apportionment of liability at 40% against the Appellant and 60% against the Respondent. 7. The evidence by the Appellant, that she was in the greenhouse when spraying began, does not appear to the Court to have been sufficient to justify 40% liability against the Appellant. 8. It was for the Respondent to ensure that the greenhouse was completely emptied before spraying, and that all workers in it, were adequately instructed to leave, before sprayers were put into action. 9. It was also the responsibility of the Respondent, to provide the Appellant with adequate protective gear, including goggles, mask, and spraying mask 10. There was no evidence adduced by the Respondent, and it was not established that the Respondent provided the Appellant with safe working conditions. There was no evidence that the Respondent provided the Appellant with appropriate working tools. 11. In **Kericho H.C.C.A No. 38 of 2002, African Highlands Produce Co. Limited v. Collins Moseti Ontekwa**, it was held that failure by an Employer to provide protective gear to an Employee, especially where the Employee is working in a dangerous environment, means that in event such an Employee is injured, an Employer shall be guilty of breach of a statutory duty. Liability in such event is strict. 12. The Appellant invokes section 6[2] of the Occupational Safety & Health Act, 2007, which requires Employers to provide safe and heathy working environments. 13. It is noted that Section 19 of the Occupational Safety and Health Act, 2007, imposes a duty on Employers/ Occupiers to prevent injurious or harmful substances into the atmosphere, use best practical means to prevent such emission, and render harmless or ineffective, the substances which may be emitted. 14. The Respondent was unprepared for accidents such as suffered by the Appellant, and did not even stock eye ointments at its clinic. 15. The Appellant however, omits to mention Section 13 [1] of the same Act, which imposes a duty of reasonable self-care to an Employee, in the course of performing his duty. 16. The Court of Appeal in **Purity Wambui Muriithi v. Highlands Mineral Water Co. Limited [2015] e-KLR,** underscored that Employees have a duty, under the above statutory provision, to take reasonable precaution of their health and safety at work. 17. While the overwhelming duty of care rested with the Respondent; and while the Respondent did not adduce evidence; the Appellant’s own evidence, that she remained behind looking for her scissors, when everyone else walked out, and the sprayers walked in, tended to suggest that she disregarded her duty of self-care, identified by the Court of Appeal in **Muriithi v. Highlands Mineral Water Company Limited** decision. 18. Was not spraying of greenhouses, a common activity known to the Appellant, against which she ought to have exercised a degree of precaution? 19. Strict liability, is not synonymous with 100% liability. It does not mean that liability cannot be apportioned. Liability can always be apportioned, where there is contributory negligence. 20. In the end, the Court would substitute the apportionment of liability at 40% against the Appellant, with an apportionment of liability against the Appellant at 10%. Liability against the Respondent at 60% is substituted with liability against the Respondent, at 90%. 21. On the assessment of general damages, the decision cited by the Appellant, **Bahchu v. Katuva**, appears to have involved similar injuries as sustained by the Appellant. In the decision preferred by the Trial Court in awarding general damages at Kshs. 200,000, **P.J. Dave Flowers Limited v Ben Wabomba Walubukha [2018] e-KLR**, the Claimant sustained sub-conjunctival hemorrhage. An award general damages of Kshs. 180,000 was made. 22. The injuries suffered by the Appellant, chemical conjunctivitis of both eyes and chemical pneumonitis secondary to chemical inhalation, were not too different from both decisions above. Her own medical report indicated that her eyes and chest had cleared at the time the report was made. 23. An award of Kshs. 800,000 in the view of this Court, would have been manifestly high, while an award of Kshs. 200,000 was manifestly low. 24. The Court shall substitute the award of the Trial Court with an award of general damages in favour of the Appellant at Kshs. 350,000, in place of Kshs. 200,000. 25. No order on the costs of the Appeal. **IT IS ORDERED**: - 1. **The Appeal is allowed.** 2. **Apportionment of liability is redistributed at 90% to 10% in favour of the Appellant, against the Respondent.** 3. **Award of general damages is** **granted at Kshs. 350,000 instead of Kshs. 200,000 granted by the Trial Court.** Dated, signed and delivered electronically at Nakuru, under Rule 68 [5] of the E&LRC [Procedure] Rules, 2024, this 30th day of June 2026. James Rika Judge