Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 310 of 2006· [2012] KECA 53 (KLR)

DENMUS OIGORO OONGE V NJUCA CONSOLIDATED LTD [2012] KECA 53 (KLR)

Court of Appeal of Kenya
10 October 2012
David Kenani MaragaD. K. MaragaJOJ. W. Onyango Otieno
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that not filing a reply to a defence is not an admission of negligence, restoring full liability against the employer.

What this practically means

#

Executive summary

#
The appellant, a general labourer employed by the respondent, was seriously injured when a tractor-trailer he was pushing with other employees at a construction site at Itumbe Tea Factory tilted, overturned and fell on his right leg. The subordinate court held the respondent 100% liable and awarded Kshs. 200,000 general and Kshs. 2,000 special damages. The High Court at Kisii (Kaburu Bauni, J) allowed the respondent's appeal, holding that the appellant's failure to file a reply to defence amounted to an admission of the negligence pleaded against him, and that it would have apportioned liability 50/50 and reduced the award because the injury was a dislocation and not a fracture. On further appeal, Maraga, JA held that the High Court had misdirected itself by following Mt. Elgon Hardware v United Millers Ltd, which he concluded was decided on its own peculiar facts and per incuriam. Under Order 6 Rules 9(1) and 10(1) of the Civil Procedure Rules, where no reply to defence is filed there is an automatic joinder of issues which operates as a denial of all allegations in the defence; the appellant therefore did not admit the negligence alleged against him. The respondent having called no evidence, the appellant's uncontroverted testimony stood, and the respondent was vicariously liable for the acts of the fellow employees - 100% liable. The court also interfered with the damages because the trial award had been based on a fracture, substituting a lower figure. The appeal was allowed, the High Court's decision set aside, and the appellant awarded the costs of the appeal.

Key legal issues

#
01

Effect of failure to file a reply to defence under Order 6 Rules 9(1) and 10(1) of the Civil Procedure Rules

Holding

A plaintiff who files no reply to defence is not deemed to admit allegations of fact in the defence; joinder of issues under Rule 10(1) operates as a denial of all allegations in the defence. The High Court erred in deeming the Appellant to have admitted the negligence pleaded against him.

Reasoning

The court distinguished Mt. Elgon Hardware as decided per incuriam on its own facts (where no particulars of negligence were pleaded) and adopted Katiba Wholesellers Agency. Order 6 Rule 9(1) deems allegations of fact admitted only if not traversed; Rule 10(1) provides that where no reply is filed, there is a joinder of issue on the defence, which operates as a denial of all allegations in it. Filing a reply merely narrows the issues; failing to file one does not admit the defence.

p. 3
02

Vicarious liability of the employer and apportionment

Holding

The Respondent employer was 100% liable, vicariously for the acts of fellow employees who tilted and overturned the trailer; the High Court erred in suggesting 50/50 apportionment as the Respondent's allegations of the Appellant's negligence remained unproved, it having called no evidence.

Reasoning

The Appellant pleaded and gave uncontroverted evidence on particulars of negligence against the Respondent, who called no evidence. In the absence of evidence of any external cause such as uneven or sloppy ground, the only inference was that the fellow employees pushing the trailer caused it to overturn, and their act is attributed to the employer vicariously. Liability should not have been apportioned at any fraction.

03

Interference with the award of damages

Holding

Because the trial court's award of Kshs. 200,000 was based on a finding of fracture whereas the injury was a serious dislocation, the appellate court was entitled to interfere and substitute a lower reasonable award.

Reasoning

Counsel for the Appellant conceded the injury was a dislocation, not a fracture, so the trial court's basis for the award was wrong. The court held that a lower figure would be reasonable compensation for the serious dislocation, though the judgment itself is internally inconsistent as to the substituted figure (Kshs. 150,000 in the discussion, Kshs. 100,000 in the disposition).

p. 3

Legal principles established

#
  • Where a plaintiff does not file a reply to defence, there is an automatic joinder of issues under Order 6 Rule 10(1) of the Civil Procedure Rules, and that joinder operates as a denial of all allegations in the defence; a defendant's allegation of fact in the defence is deemed admitted only if it is traversed or not denied by joinder - so a plaintiff who files no reply is NOT deemed to have admitted negligence particulars in the defence.
  • Mt. Elgon Hardware v United Millers Ltd, insofar as it construed Order 6 Rule 9(1) as deeming a non-filing plaintiff to have admitted negligence in the defence, was decided on its own peculiar facts and per incuriam, and is not good authority for that proposition.
  • An employer is vicariously liable for injuries caused to an employee by fellow employees in the course of a joint work task, even where the exact cause of the accident is not proved by direct evidence, where the employer called no evidence and the employee's testimony stands uncontroverted.

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The decision of the High Court is set aside
  3. 3.The award of general damages is reduced from Kshs. 200,000 to Kshs. 100,000 (though an earlier passage suggests Kshs. 150,000 - see dataQualityFlags)
  4. 4.The Appellant shall have the costs of this appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder 6 Rule 9(1)
  • Civil Procedure RulesOrder 6 Rule 9(4)
  • Civil Procedure RulesOrder 6 Rule 10(1)
  • Civil Procedure RulesRule 8(1) (referred to by the court in discussing the proper construction)
  • Court of Appeal RulesRule 32(3)

Cases cited (5)

  • Katiba Wholesellers Agency (K) Ltd v United Insurance Co. Ltd., Nairobi Civil Appeal No. 140 of 2002 (C.A)
    Nairobi Civil Appeal No. 140 of 2002
  • Peters v Sunday Post Ltd [1958] EA 424
    [1958] EA 424
  • Mumias Sugar Co. Ltd. v Francis Wanalo, Kisumu Civil Appeal No. 91 of 2003 (CA) (Unreported)
    Kisumu Civil Appeal No. 91 of 2003
  • Richard Kanyango & 2 Others v David Mukui Mereka [2007] e KLR
    [2007] e KLR
  • Mt. Elgon Hardware v United Millers Ltd., Kisumu Civil Appeal No. 19 of 1996 (CA)
    Kisumu Civil Appeal No. 19 of 1996
On appeal from
High Court of Kenya at Kisii
Kisii H.C.A No. 239 of 2004
Jurisdiction invoked
First appellate appeal from the High Court under the Court of Appeal's appellate jurisdiction (statutory appeal against the judgment and decree in Kisii H.C.A No. 239 of 2004)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

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

Cite this brief

#

Cite this brief

Caselaw, "DENMUS OIGORO OONGE V NJUCA CONSOLIDATED LTD [2012] KECA 53 (KLR)", Case Analysis (2012). Civil Appeal 310 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/53/eng@2012-10-10

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