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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 352 of 2018· [2022] KECA 1395 (KLR)

Elgon Kenya Limited v Kamuya

Court of Appeal
16 December 2022
2,581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that injured employees who knowingly use unsafe equipment share blame, and courts won't reduce damages without strong legal grounds.

What this practically means

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Executive summary

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This was a second appeal by Elgon Kenya Limited against the High Court's decision (L. Njuguna, J.) which, on first appeal, revised a trial magistrate's apportionment of liability for a factory accident from 90:10 to 70:30 in favour of the respondent, an assistant machine operator who lost his arm in an accident on the night of 11th/12th August 2009, and reduced loss of earning capacity from Kshs. 1,838,040 to Kshs. 973,080, giving a total award of Kshs. 2,711,156. The appellant, whose counsel relied wholly on written submissions after the respondent did not attend the hearing, sought setting aside of both judgments, contending the respondent was the author of his own misfortune and that damages were inordinately high. The Court of Appeal (M'Inoti, Laibuta and Gachoka, JJA) framed four issues centring on misapprehension of evidence, consideration of irrelevant or omission of relevant matters, and whether the damages represented an entirely erroneous estimate. Applying the settled principles that a second appeal confines itself to matters of law and that damages will not be disturbed unless inordinately high or low, the court found the first appellate judge had properly re-evaluated the evidence, correctly held the respondent knowingly operated a machine without a functional shutter, and properly reasoned that amputation did not render him totally incapacitated since he could take up light tasks. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Scope of a second appeal

Holding

The Court of Appeal on second appeal confines itself to questions of law and will not disturb concurrent findings of fact absent perversity or failure to consider relevant material

Reasoning

The court adopted the classic statement in Kenya Breweries Ltd v Godfrey Odoyo that a second appeal resists the temptation of delving into matters of facts. It found the first appellate judge properly re-evaluated the evidence and arrived at an independent decision, so no question of law arose for interference.

p. 4
02

Apportionment of liability for workplace injury

Holding

The High Court's 70:30 apportionment, reflecting the respondent's knowledge that the machine lacked a functional shutter and his exposure of himself to a known risk, was not shown to be wrong

Reasoning

The judge found the respondent was all along aware the machine had no shutter or a functional one, yet chose to operate it, exposing himself to a known risk. The Court found this reasoning sound and endorsed the principle that employees must take precautions for their own safety.

p. 5
03

Quantum of damages - loss of earning capacity

Holding

The High Court's reduction of loss of earning capacity to half (9,010x12x18x1/2) was proper since amputation did not render the respondent totally incapacitated

Reasoning

The trial magistrate had presumed total incapacity. The first appellate judge reasoned the respondent, though unable to continue as a machine operator, could take up light tasks not requiring both forearms, so half his earning capacity was lost. The Court found this proper and not an erroneous estimate.

p. 5

Legal principles established

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  • On a second appeal the Court of Appeal confines itself to matters of law and will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect
  • Employees bear a responsibility to take care of their own safety and cannot expect the employer to bear full liability for workplace injuries

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent
On appeal from
High Court of Kenya at Nairobi
High Court Civil Appeal No. 473 of 2016
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework; the judgment invokes rule 58(1) of the Court of Appeal Rules on disposal by written submissions

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, "Elgon Kenya Limited v Kamuya", Case Analysis (2022). Civil Appeal 352 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1395/eng@2022-12-16

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