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Court of AppealPartially AllowedCivil Appeal 170 of 2004· [2008] KECA 63 (KLR)

JOSEPH IBRAHIM ALASAU v STEERING SHIP CONTRACTORS & another [2008] KECA 63 (KLR)

Court of Appeal of Kenya
7 November 2008
ROR.S.C. OmoloSBS.E.O. BosireEOE.O. O'Kubasu
2,291 words in judgment
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The bottom line

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Kenya's Court of Appeal held an employer fully liable for a worker's crush injury because it failed to call the supervisor who caused the accident.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against the judgment of a Commissioner of Assize (Tutui) delivered on 7 July 2003 in H.C.C.C. No. 67 (RD) of 1999, which dismissed the appellant's claim for damages for injuries sustained when his right hand was crushed in a conveyor belt at Bamburi Cement Limited's premises. The appellant, a casual employee of the 1st respondent, alleged that the supervisor Benson Nzivo switched on the belt while the appellant was cleaning its lower end. The trial court disbelieved the appellant's evidence and dismissed the suit, though it provisionally assessed damages including Kshs.480,000 for loss of future earnings. The Court of Appeal, comprising Omolo, Bosire and O'Kubasu, JJ.A, in a single judgment of the court, re-evaluated the evidence as required on a first appeal. It found that Nzivo, the only person who could have switched on the machine, was not called by the 1st respondent to deny the assertion, so there was no basis to disbelieve the appellant and PW3 Hassan Mwinyi Mohamed. The court held the 1st respondent 100% vicariously liable. On quantum, it confirmed the assessment but corrected the loss of future earnings figure from Kshs.480,000 to Kshs.720,000, because the Commissioner had wrongly deducted one-third on the assumption the appellant had died. There being no cross-appeal, total damages of Kshs.2,023,050 were awarded. The appeal was allowed with costs of the appeal and of the superior court to the appellant. The judgment below was thereby reversed in its dismissal of the suit.

Key legal issues

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01

Vicarious liability of the employer for the negligence of its employee

Holding

The appellant proved negligence against Nzivo, an employee of the 1st respondent, who alone could have switched on the machine; the 1st respondent was therefore 100% vicariously liable.

Reasoning

The appellant and PW3 testified that only the supervisor Nzivo could switch the machine on, and that the switch was about 14 metres away so the appellant could not have done so himself. The 1st respondent called no witness. The court held there was no basis to disbelieve the uncontradicted evidence and found liability proved.

p. 4
02

Erroneous assumption of death in assessing loss of future earnings

Holding

The Commissioner erred in deducting one-third from the loss of future earnings award on the basis that the appellant had died, when he was alive; the figure was corrected from Kshs.480,000 to Kshs.720,000.

Reasoning

The Commissioner deducted one-third on the footing that the sum would have been spent by the deceased on himself and would not have accrued to his estate. Since the appellant survived, that deduction had no foundation. The court corrected the figure while otherwise confirming the assessment, noting there was no cross-appeal on quantum.

p. 4
03

Restraint of appellate courts in interfering with trial court awards of damages

Holding

The general damages assessment was confirmed, the court being guided by the Kemfro Africa principles limiting appellate interference with quantum.

Reasoning

The court cited Kemfro Africa and Arrow Car for the principle that quantum may be disturbed only for a wrong relevant factor or a wholly erroneous estimate. It found the Commissioner's approach correct, save for the death assumption, and confirmed the awards, observing there was no cross-appeal against quantum.

p. 5

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate the evidence, assess it and make its own conclusions, while remembering it has neither seen nor heard the witnesses.
  • An employer is vicariously liable where negligence is proved against its employee, and where that employee is not called to deny the assertion that he caused the accident, the trial court cannot properly disbelieve uncontradicted evidence of the plaintiff and his witness.
  • An appellate court may disturb quantum of damages only where the trial judge took into account an irrelevant factor or left out a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate.

Court orders

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  1. 1.Appeal allowed
  2. 2.Holding the 1st respondent 100% liable for the appellant's injuries
  3. 3.Award of Kshs.1,300,000.00 for pain, suffering and loss of amenities
  4. 4.Award of Kshs.720,000.00 for loss of future earnings in place of the erroneous Kshs.480,000.00
  5. 5.Award of Kshs.3,050.00 as special damages
  6. 6.Total award of Kshs.2,023,050.00
  7. 7.Appellant awarded the costs of this appeal and the costs in the superior court

Authorities

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Cases cited (4)

  • Selle v. Associated Motor Boat Company Ltd
    [1968] E.A. 123
  • Williamson Diamonds Ltd v. Brown
    [1970] E.A. 1
  • Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v. A.M. Lubia and Another
    [1982-88] 1 KAR 777
  • Arrow Car Limited v. Bimomo & 2 others
    (2004) 2 KLR 101
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 67 (RD) of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (the judgment does not cite the specific constitutional or statutory provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JOSEPH IBRAHIM ALASAU v STEERING SHIP CONTRACTORS & another [2008] KECA 63 (KLR)", Case Analysis (2008). Civil Appeal 170 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/63/eng@2008-11-07

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