https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1845

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **APPEAL NUMBER E004 OF 2025** **BETWEEN** MERCY KAVUGWI KAVAI .............................................................APPELLANT **VERSUS** MARIDADI FLOWERS LIMITED ....................................................RESPONDENT [An Appeal from the Judgment of Alice Chemosop Towett, Hon. Principal Magistrate, in Naivasha C.M.C.C. No. 129 of 2016, delivered on 22nd January 2025 at Naivasha, between the Parties herein] *Rika J* *Court Assistant: Emmanuel Kiprono* *B.G. Wainaina & Company Advocate for the Appellant* *Nduati & Company Advocates for the Respondent* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. The Appellant filed a work injury claim against her Employer at the Trial Court over 10 years ago. 2. She prayed for general and special damages. She was harvesting flowers at her assigned greenhouse, when she slipped and injured her buttocks. 3. The injuries were captured in medical report exhibited before the Trial Court to include, blunt injury to the back with muscle spasm; and blunt trauma injury to the right shoulder. 4. The Trial Court granted her general damages at Kshs. 100,000, special damages at Kshs. 3,300 and cost of future medical attention at Kshs. 80,000. 5. The Trial Court split contributory negligence to the Parties in equal share, resulting in a final award of Kshs. 91,650 for the Appellant. 6. She filed Memorandum of Appeal dated 22nd January 2025, setting out 3 Grounds of Appeal, that: - 7. The Trial Court erred by apportioning liability at 50:50. 8. General damages awarded was inordinately low. 9. The Trial Court failed to adequately or at all consider, the submissions of the Appellant. 10. It is proposed by the Appellant that: - 11. The Trial Court Judgment is set aside and substituted with a Judgment apportioning 100% liability to the Respondent. 12. Award of general damages is enhanced to Kshs. 200,000. 13. The Court file indicates that the Respondent has not been attending Court on Appeal, when the Appeal was mentioned on 13th March 2026, and lastly on 15th April 2026. 14. Parties were directed to file and exchange their submissions, on 13th March 2026. 15. The Appellant filed submissions dated 12th March 2026. 16. She submits that the Trial Court’s apportionment of liability was unsupported in evidence. She was provided with worn out gumboots. She was not issued with proper protective gear. The Trial Court did not evaluate her evidence properly. 17. The floor in the premises where the Appellant worked was wet, muddy and slippery. The water was stagnant. The risk of the Appellant slipping and injuring herself, was foreseeable to the Respondent. 18. It was the statutory and common law duty of the Respondent, to offer the Appellant a safe and healthy workplace. Section 6[1] of the Occupational Safety and Health Act, imposes this obligation on Employers. 19. The Appellant invokes the often cited decision of the High Cout in **Sokoro Saw Mills Limited v. Bernard Muthimbi Njenga, Nakuru H.C.C.A No. 38 of 1995**, where it was held that, the duty of an Employer to provide safe and healthy workplace, does not involve merely warning the Employee against unusual dangers, but also involves making the workplace as safe as the exercise of reasonable skill and care, would permit. 20. On quantification of general damages, the Appellant submits that she urged for an award of Kshs. 200,000. She faults the Trial Court by relying on the case of **Mokaya Mochama v. Julius Nyokwoyo [2013] e-KLR**, where general damages were awarded at Kshs. 100,000. 21. She argues that the Court did not take into consideration that in Mochama [supra], Judgment was delivered in 2013, and cannot be a reasonable comparative award, in 2025. 22. She submits that the Trial Court should have adopted any or all, of the 5 judicial authorities she availed on assessment of damages. The decisions include **Kisii H.C.C.A No. 37 of 2018, Charles Okwoyo Getume v. Caroline Nyangarisa,** involving blunt trauma on the chest, bruises on the left leg and blunt trauma to the mouth. General damages were awarded at Kshs. 200,000, in December 2018. **The Court Finds**: - 1. While the injuries suffered by the Appellant, were similar to the injuries suffered by the Claimant in the **Mochama** decision, that decision was made in 2013. 2. The Trial Court made its Judgment in 2025, and appears to have overlooked the principle of currency. 3. In assessing award of damages, Courts are guided by modern precedents, current decisions, taking stock of evolving value of the shilling, not old decisions. Economic changes have taken place. The purchasing power of the Employee, has not remained constant for 12 years. It has been eroded. 4. There was no reason why, the Trial Court ignored the 5 decisions availed by the Appellant, which involved injuries close to those sustained by the Appellant. General damages were awarded at Kshs. 200,000 in most of these decisions, in 2018. 5. 2018 is itself not what would be described as current, but as the Appellant had based her pursuit of general damages made on decisions made in that year, based on comparative injuries, the Court does not see anything on record, which would have dissuaded the Trial Court from awarding the Appellant general damages at Kshs. 200,000. 6. An award of Kshs. 100,000, was inordinately low, considering the injuries sustained by the Appellant, and the decisions submitted by her at the Trial Court, on quantification of general damages. 7. On liability, the Trial Court’s apportionment at 50:50 was erroneous. 8. The duty to provide a safe and healthy workplace, and avail appropriate tools of work, is an Employer’s duty. 9. Section 6 [1] of the Occupational Safety and Health Act 2007, requires Employers / Occupiers of premises, to ensure safety and health of all persons at the workplace. Conditions must be safe and without health risk. 10. Section 47 requires that every workplace is kept clean and free from effluvia arising from any drain, sanitary convenience or nuisance. Accumulated dirt must be cleaned daily. Floor must be cleaned at least once very week, applying the most effective method. 11. Section 51 states that where the process carried on renders the floor wet, effective means for draining off the wet, must be in place. 12. The Respondent did not establish that it had these safety and health conditions at the workplace, where the Appellant complained to have worked in. 13. The Appellant also complained that she slipped and fell, because she was wearing old gumboots without sufficient treads. 14. The accident occurred on 12th December 2015. Her witness statement was that she was issued the gumboots in May 2015, 7 months before the accident. The witness statement, contrary to her submissions, did not clarify if the gumboots were old, when issued. In her evidence on cross-examination, she repeated that she was wearing worn out gumboots when she fell and injured herself, in December 2015. She did not say that the gumboots were worn out when issued. 15. She did not complain about worn out gumboots to the Respondent. She did not exercise duty of self-care and precaution, by continuing to knowingly, wear old gumboots to work. She did not complain about the cleanliness of the floor and demand that the Respondent ensures adequacy of draining of the wet. 16. Section 13[1] of the Occupational Safety and Health Act, imposes a duty of self-care on Employees, in the course of discharging their duties. They must exercise reasonable precaution, as established by the Court of Appeal in **Purity Wambui** **Muriithi v. Highlands Mineral Water Co. Limited [2015**]. 17. While the Court agrees with the Appellant that the Trial Court erred in apportionment of liability at 50:50, it disagrees with her that apportionment ought to have been 100% against the Respondent. She did not exercise precaution, required under Section 13[1] of the Occupational Safety and Health Act. 18. The result is that the Court finds merit in the Appeal. The award of general damages at Kshs. 100,000 is set aside and replaced with an award of general damages at Kshs. 200,000. 19. Apportionment of liability at 50:50, is set aside. It is apportioned at 70:30 in favour of the Appellant. 20. No order on the costs. **IN SUM, IT IS ORDERED**: - 1. **The Appeal is allowed.** 2. **General damages awarded by the Trial Court at Kshs. 100,000 is set aside, and substituted with an award of general damages at Kshs. 200,000.** 1. **Apportionment of liability at 50:50 is set aside, and granted in favour of the Appellant at 70:30.** 2. **No order on the costs.** 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