Makala Mailu Mumende v Nyali Golf & Country Club [1989] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once default judgment fixes liability, a judge must assess damages and employers must supply protective gear like helmets.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge, having refused an adjournment and proceeded with assessment of damages, had jurisdiction to set aside the interlocutory judgment and dismiss the suit
- 2.Whether the employer was negligent in failing to provide the night watchman with a helmet
- 3.What damages should be awarded for loss of earnings, medication and pain and suffering
Key legal issues
#Jurisdiction of a trial judge at the assessment of damages stage after interlocutory judgment
Liability having been settled by the interlocutory judgment, the judge could not question the cause of action, set aside the judgment or dismiss the suit; his only task was to assess damages.
Judgment entered in default presupposes a cause of action. Evidence at the assessment stage was adduced solely for quantum, not liability. The judge refused the adjournment sought to enable an application to set aside the ex parte dismissal of the defendant's own application, so a valid judgment stood before him. If he thought there was no cause of action, the proper course was to allow the adjournment, not to dismiss the suit.
Employer's duty to provide protective equipment to a watchman
The employer was negligent in failing to provide a helmet despite the trade union's demand and a prior similar attack; a helmet would more likely than not have minimised the head injury.
While an employee takes on risks necessarily incidental to employment and the employer is not an insurer, the employer must take reasonable care not to expose employees to unnecessary risk. The risk of attack was foreseeable, a prior incident had occurred without injury, helmets were common in the trade, and the test is whether a helmet was reasonably capable of minimising the injury, not whether it would have prevented it entirely.
Assessment of damages where the High Court failed to assess them
Relying on section 3(2) of the Judicature Act, cap 9, the Court of Appeal itself assessed damages, awarding four years' lost wages of Shs 52,800, Shs 10,800 for future medication, and Shs 80,000 as general damages all told.
The trial judge never assessed damages because he wrongly turned to liability. The Court invoked section 3(2) of the Judicature Act as the jurisdiction for doing what the High Court had not done, computing loss of earnings to age 60 at Shs 1,100 per month, monthly medication costs to age 65, and general damages for pain and suffering in light of the employer's contribution to the injuries.
Legal principles established
#- Once interlocutory judgment is entered in default, liability is settled and the cause of action cannot be questioned at the assessment of damages stage; a judge who declines an adjournment to enable an application to set aside the judgment has no jurisdiction to set it aside himself and must assess damages.
- An employer's duty to take reasonable care for the safety of employees persists even in inherently dangerous employment; accepting a dangerous job is no excuse for the employer to neglect minimum reasonable measures of protection.
- An employer's failure to supply protective equipment after a warning following a previous potentially dangerous incident amounts to continued negligence.
Court orders
#- 1.Judgment for the plaintiff Makala Mailu Mumende against the defendant for Shs 1,200/- and Shs 80,000/-
- 2.Costs of the appeal and suit to the plaintiff, with interest at court rates from the date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held that once interlocutory judgment was entered in default, liability was settled and the trial judge, having refused an adjournment, had no jurisdiction to set aside the judgment or dismiss the suit; he was bound to assess damages. The Court then assessed damages itself, finding the employer negligent in failing to provide a helmet, and awarded Shs 1,200 plus Shs 80,000 general damages with costs and interest.
In my judgment, therefore, the issue of liability was already settled ( in favour of the plaintiff of course) by the time the judge embarked on the task of assessment of damages.p. 3
Wrote the judgment
Wrote a separate concurring judgment. Agreed that the employer was negligent in failing to provide a helmet despite the union's demand and a prior similar incident, and that on the day fixed for assessment the judge was seized only with power to assess damages, not to disturb the interlocutory judgment.
on the day fixed for assessment of damages the judge was seized with powers to assess the damages and not otherwise.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No 43 of 1988
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal; section 3(2) of the Judicature Act, cap 9 invoked as the basis for assessing damages the High Court failed to assess
Relief refused
#Overtime payment for the plaintiff
The plaintiff did not suggest any amount for overtime payment despite being paid for overtime when he worked it
Costs
Judgment for the plaintiff with costs and interest at court rates from the date of the appellate judgment until payment in full; Gachuhi JA agreed with Nyarangi JA's orders on costs ('I would allow this appeal with cots')
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.
A judgment which is entered in default of appearance for a defendant presupposes that there is a cause of action.
The judge was not deciding on an application to set aside the judgment and so he had no jurisdiction to set aside that judgment.
True, justice must be done to both or all parties. But, justice must be done according to law.
In my judgment, the defendant was negligent in not providing the plaintiff with a helmet at the time he was employed as a night watch-man.
I would give judgment for the plaintiff Makala Mailu Mumende against the defendant for (i) Shs 1,200/(ii) Shs 80,000/With costs and interest at court rates from to-day until payment in full. As Gachuhi and Gicheru JJ A also agree, it is so ordered.
Issues in the judgment
#The judgment text does not state the appeal number of this appeal, only the High Court case number it emanates from.
The medical report is dated June 18th, 1986, yet it reports on injuries sustained in the attack of August 13th, 1986 - the date appears inconsistent within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makala Mailu Mumende v Nyali Golf & Country Club [1989] KECA 13 (KLR)", Case Analysis (1989). Civil Appeal (from Mombasa High Court Civil Case No 43 of 1988). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/13/eng@1989-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.