East African Portland Cement Company Ltd v Tilikia Keloi [2016] KECA 380 (KLR)
The bottom line
#Kenya's Court of Appeal cut an injured worker's compensation by 10% for operating a faulty machine he knew was dangerous, and struck out unproven expenses.
What this practically means
#Executive summary
#Key legal issues
#Contributory negligence of an employee operating a known faulty machine
The respondent contributed to the accident and liability was apportioned at 10% against him
The employer owes a statutory duty under section 6(1) of the Occupational Safety and Health Act to ensure employee safety, but the employee owes a corresponding duty under section 13(1)(a) to ensure his own safety. The respondent knew the crane was faulty and operated it without being forced to do so; by parity of reasoning he failed in that duty and his liability was fixed at 10%.
Interference with quantum of general damages on appeal
The award of Kshs. 350,000.00 was not excessive and was left undisturbed
Applying Butt v Khan, Kemfro Africa and Gicheru v Morton, an appellate court interferes with quantum only where the judge acted on a wrong principle or the amount is so inordinately high or low as to be an entirely erroneous estimate. None of those conditions was shown here.
Proof of special damages
The award of special damages of Kshs. 3,431.00 was set aside because they were not specifically proven
The burden lay on the respondent to prove his claim on a balance of probability. Special damages must be specifically proven, and the absence of evidence rebutting the claim does not relieve the claimant of that burden. No proof was tendered, so the trial judge erred in awarding them.
Legal principles established
#- A first appellate court must re-consider, re-evaluate the evidence and draw its own conclusions while appreciating it did not see or hear the witnesses
- An employee is under a corresponding statutory duty to take reasonable precautions for his own safety at the workplace, and contributory negligence reduces the employer's liability accordingly
- Special damages must be specifically proven; they are not proved merely because they are uncontroverted
Court orders
#- 1.Apportionment of liability: respondent 10% contributory negligence
- 2.General damages reduced by 10% from Kshs. 350,000.00 to Kshs. 315,000.00
- 3.Interest on the reduced general damages to run from the date of the High Court judgment, 26th October 2000
- 4.Award of special damages of Kshs. 3,431.00 set aside
- 5.Each party to bear its/his own costs
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 4650 of 1987
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal; no specific constitutional provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JUSTINE NYAMWEYA OCHOKI & another v PRUDENCE ANNA MWAMBU[2020] KEHC 878 (KLR)18 Dec 2020
- Harrison Ndungi T/A Miangeni Meat Supplies v John Wambua Musau (in the appeal consolidated with HCCA No 27 of 2015 Agility Logistics Ltd v John Wambua Musau & Harrison Ndungi T/A Miangeni Meat Supplies)[2017] KEHC 6377 (KLR)20 Apr 2017applied
- BADAR HARDWARES LIMITED & another v JAMES AMWOMA OIKO & another[2017] KEHC 6464 (KLR)20 Apr 2017applied
- Tarmal Transporters (Appellant) v John Wambua Musau (1st Respondent) & Harrison Ndungi (2nd Respondent)[2017] KEHC 6446 (KLR)20 Apr 2017applied
- Rose Makombo Masanju v Night Flora Alias Nightie Flora & Another[2016] KEHC 1667 (KLR)22 Nov 2016
Cite this brief
#Cite this brief
Caselaw, "East African Portland Cement Company Ltd v Tilikia Keloi [2016] KECA 380 (KLR)", Case Analysis (2016). Civil Appeal No. 24 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/380/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.