Kenya Cargo Handling Services Limited v David Ugwwang [1985] KECA 36 (KLR)
The bottom line
#An injured Kenyan worker can choose to sue the employer in contract, gaining six years to file instead of three.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a plaintiff may elect to sue an employer for personal injuries sustained in the course of employment in contract or in tort
- 2.Whether section 27(1)(a) and (b) of the Limitation of Actions Act (cap 22) affects the six-year period of limitation for actions founded on contract
- 3.Whether the respondent's action, filed over four and a half years after the accident, was time-barred under section 4(2) of the Act
Key legal issues
#Election between contract and tort in employer's liability for personal injuries
A single act of negligence by an employer may found a claim in tort or for breach of an express or implied term of contract, and the employee may elect; the English authorities state good law in Kenya.
Sellers LJ in Mathews v Kuwait Bechtel Corporation, drawing on Wilson v Merry and Wilsons & Clyde Coal Co Ltd v English, held that the duty to take care arises from the common law and the workman may elect to sue in contract or tort. Viscount Simonds in Lister v Romford Ice described this as trite law. Kneller JA adopted this as part of Kenyan law, and Mr Aboo conceded the point, so ground (b) of the appeal failed.
Whether section 27(1) of the Limitation of Actions Act applies to actions founded on contract
Section 27(1) does not affect the six-year limitation period for actions founded on contract; its opening words confine it to actions founded on tort.
The section opens with the words 'Section 4(2) does not afford a defence to an action founded on tort where', which are controlling. Unlike the English Acts of 1954 and 1975, the Kenya Act retains a six-year period for contract, and section 27(3)(b) saves the section 4(1) defence. To extend section 27 to contract would require inserting words the Legislature did not enact and would absurdly allow extension of the six-year period. Section 27 lays down no limitation period; it merely disapplies section 4(2) in certain tort cases.
Purposive versus literal construction of the limitation regime for personal injury claims
The possible inconvenience of different limitation periods for contract and tort is a matter for Parliament; the court must apply the words as enacted.
Mr Aboo argued that a purposive reading was necessary or section 27 would be obsolete and encourage delay. Both Hancox JA and Nyarangi JA rejected this, echoing Diplock LJ in Letang v Cooper that Parliament used the words it selected in their ordinary meaning and meant what it chose to say; the results of giving effect to enacted language are not a proper ground for construction. Letang v Cooper was distinguished on its facts.
Legal principles established
#- A workman may elect to sue his employer for personal injuries sustained in the course of employment either on contract or in tort.
- Section 27(1) of the Limitation of Actions Act (cap 22) applies only to actions founded on tort and does not cut down the six-year limitation period for actions founded on contract under section 4(1).
- Courts may not insert words into a statute to give it meaning or purpose; the enacted words must be given their ordinary meaning.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Concurring judgment agreeing with Kneller JA, holding that section 27(1) of the Limitation of Actions Act is expressly confined to actions founded on tort and does not cut down the six-year limitation period for actions founded on contract; no words may be read into the statute.
The words there in parenthesis cannot be related back, as it were, and imported into the opening, and I would say controlling, part of the sub-section without doing violence to the existing language.p. 7
Wrote the judgment
Concurring judgment: section 27(1)(a) and (b) specifically provides for actions founded on tort to the exclusion of actions founded on contract; the trial judge correctly rejected the contrary reading.
It must have been meant that section 27(1)(a) and (b) would be concerned with actions founded on tort to the exclusion of actions founded on contract.p. 8
- On appeal from
- High Court of Kenya, Mombasa
- Jurisdiction invoked
- Appeal from the High Court's interlocutory ruling on a preliminary objection of limitation, pursuant to the appellate jurisdiction of the Court of Appeal (judgment does not state the specific provision)
Relief refused
#Appellant's plea that the suit was time-barred under section 4(2) of the Limitation of Actions Act so as to defeat the contract claim
Section 27(1) of the Act is confined to actions founded on tort and does not affect the six-year limitation period for actions founded on contract
Costs
Appeal dismissed with costs to the respondent.
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.
The submissions of Mr Aboo and of Mr Kassim were ably put but in the end those of Mr Aboo do not prevail in the circumstances of this appeal and, in my judgment, the ruling of Mr Justice Bhandari was correct. So I would propose that this appeal now be dismissed with costs.
Hancox JA and Nyarangi Ag JA agree so those are now the orders of the court.
I therefore agree with Mr Kassim that nowhere does section 27 itself, in contrast to the two English amending statutes, lay down any period of limitation. All it does is to say that in certain circumstances the period of limitation provided for actions in tort shall not apply.
It must have been meant that section 27(1)(a) and (b) would be concerned with actions founded on tort to the exclusion of actions founded on contract.
It is trite law that a single act of negligence may give rise to a claim either in tort or for breach of a term express or implied in a contract.
Issues in the judgment
#The Listers v Romford Ice citation appears inconsistently within the judgment - once as [1957] 1 All ER 125, 131 (HL) and once as [1957] 1 All ER 12.
The judgment spells the respondent's name 'Ugwwang' while the precedent is variously spelled 'Mathews' and 'Matthews' for the same case.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Cargo Handling Services Limited v David Ugwwang [1985] KECA 36 (KLR)", Case Analysis (1985). Civil Appeal (Mombasa) – memorandum of appeal filed May 23, 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/36/eng@1985-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.