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Court of AppealDismissedCivil Appeal (Nakuru)· [1990] KECA 60 (KLR)

Arkay Industries Limited v Abdalla Amani [1990] KECA 60 (KLR)

Court of Appeal of Kenya
1 March 1990
2,254 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that employers who fail to fence dangerous machinery are liable, but workers who take obvious risks can still lose part of their compensation.

What this practically means

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Executive summary

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The respondent, an expeller cleaner employed by the appellant at its Eldoret edible oil processing plant, suffered amputation of two fingers of his left hand in November 1985 when his hand fell into an unfenced, moving processing machine. He slipped from an oil-cake-slicked table while pouring oil cake into the machine. The trial judge found the appellant in breach of section 23(1) of the Factories Act (duty to securely fence dangerous machinery), but apportioned 25% contributory negligence to the respondent, awarded global general damages of Shs 200,000/- and, after deductions for contributory negligence and workmen's compensation paid, entered judgment for Shs 143,509.60 with interest and costs. The appellant appealed on liability and quantum; the respondent cross-appealed, contending that section 23(1) imposed strict liability and that the contributory negligence finding was erroneous. The Court of Appeal held that the machinery required compliance with section 23(1), that the appellant was in breach of that statutory duty, and that liability was properly established. However, section 23(1) does not impose strict liability: a plaintiff who takes a risk created by a breach of statutory duty, which a reasonably prudent person would not take, may be contributorily negligent. The 25% apportionment and the Shs 200,000/- award were not shown to be manifestly erroneous or excessive. Both the appeal and the cross-appeal were dismissed, each side bearing the other's costs of its respective attack on the judgment below.

Key legal issues

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01

Breach of statutory duty under section 23(1) Factories Act

Holding

The appellant was in breach of section 23(1) for failure to securely fence the dangerous moving part of its machinery, and that breach caused the respondent's injuries; liability was properly established.

Reasoning

The court held the machinery required compliance with section 23(1). Evidence showed non-compliance, i.e. the machine was unfenced with nothing to hold on to. The subsection imposes an obligatory duty to ensure the safety of every person employed or working on the premises, and the breach resulted in the accident, so the trial judge's finding of liability could not be faulted.

p. 3
02

Whether section 23(1) imposes strict liability excluding contributory negligence

Holding

Section 23(1) does not impose strict liability; a plaintiff who takes a risk created by a breach of statutory duty may be contributorily negligent.

Reasoning

The subsection's prime concern is the safety of every person employed or working on the premises and it imposes an obligatory duty. However, it does not impose strict liability in negligence. Where a plaintiff takes a risk created by the breach which a reasonable prudent man would not take, that risk may amount to contributory negligence, following Wakelin v London and South Western Railway Co.

p. 3
03

Contributory negligence apportionment of 25%

Holding

The trial judge's apportionment of 25% contributory negligence to the respondent was not manifestly erroneous and did not merit appellate interference.

Reasoning

The respondent knew the table was slippery and dangerous, admitted he 'was supposed to be careful', yet took no step to wipe off the oil or place a sack on it. As an appeal court, the court could not say the 25% degree of responsibility was manifestly erroneous. The appellant's plea for equal apportionment also failed.

p. 3
04

Quantum of general damages

Holding

The global award of Shs 200,000/- for pain, suffering and loss of amenities was not manifestly excessive.

Reasoning

Assessment of damages is a matter of judicial discretion. The trial judge took into account the amputation of two fingers, limited function of the ring finger, scars, hospitalisation, out-patient treatment, age, marital status and limited education. On these factors the award did not warrant reduction.

p. 3

Legal principles established

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  • Section 23(1) of the Factories Act imposes an obligatory duty to fence dangerous machinery, but breach of that statutory duty does not impose strict liability and does not bar a finding of contributory negligence against a plaintiff who voluntarily takes a risk created by the breach.
  • An appellate court will not interfere with an award of damages unless the sum is demonstrably wrong, based on a wrong principle, or so manifestly excessive or inadequate that a wrong principle may be inferred.

Court orders

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  1. 1.The appellant's appeal is dismissed with costs to the respondent
  2. 2.The respondent's cross-appeal is dismissed with costs to the appellant
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal against the trial judge's decision on liability and damages)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Arkay Industries Limited v Abdalla Amani [1990] KECA 60 (KLR)", Case Analysis (1990). Civil Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/60/eng@1990-03-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.