Gami Quaries (Ltd) v Anthony Ngaita Kavoi [2015] KEELRC 798 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Course of employment
The Respondent was acting within the scope of his employment when he fell, because he was instructed by Dw2, his senior who deputised the Managing Director; the defence evidence was too contradictory to rebut his account
Dw1's and Dw2's evidence shifted materially on Dw2's rank across examination and cross-examination, rendering the defence unbelievable. The court found on a balance of probability that Dw2 was senior and instructed the repairs. Compliance with a superior's instructions cannot be a frolic of one's own.
Duty of care and breach
The appellant owed and breached the duty of care both at common law and under section 6 of OSHA 2007 by failing to provide protective gear, competent assistance, supervision and a safe roof
The duty includes providing a safe place of work and effective supervision. Dw2 sent the Respondent to repair a leaking roof without ensuring the timber was strong, without protective gear and without supervision, constituting breach at common law and under section 6(1) OSHA.
Contributory negligence
No evidence proved the Respondent negligent; the trial court's 25% apportionment was unfounded but stands because the Respondent did not seek to overturn it
The appellant led no evidence of the Respondent's negligence. The trial magistrate apportioned 25% liability against the Respondent without supporting evidence, merely remarking he should have been careful where he stepped. The court noted the error but declined to disturb the apportionment.
Weight of evidence and burden of proof
The trial court did not err: the appellant's failure to call eyewitnesses did not shift the burden of proof, and the finding that the Respondent was a junior officer was supported by the evidence
Sections 107, 108 and 109 of the Evidence Act place the burden on the party alleging. Finding that Dw1 and Dw2 were not eyewitnesses did not shift that burden. The juniority finding rested on Dw2's evidence that the Respondent did general manual duties and accessed the MD only through Dw2.
Quantum of damages
The award of Kshs.550,000 general damages was a proper exercise of discretion and not excessive
The trial court considered the severity of the injuries, which the appellant did not dispute. The appellant never suggested a quantum before the trial court and, on appeal, cited no case meeting the Mbogo v Shah threshold of misdirection or clear wrongness in the exercise of discretion.
Legal principles established
#- An employer is under a duty to take reasonable care for the safety of his employees in all the circumstances, including providing competent staff, adequate materials, a proper system, effective supervision and a safe place of work, and this duty remains with the employer even after delegation
- An appellate court will not interfere with the exercise of the trial court's discretion on quantum unless the judge misdirected himself or was clearly wrong, resulting in misjustice
Court orders
#- 1.All grounds of appeal fail and the appeal is dismissed with costs
- 2.The judgment of the subordinate court (liability at 75:25% in the Respondent's favour, general damages of Kshs.550,000 and special damages of Kshs.2,000) stands
- On appeal from
- Subordinate court (Senior Principal Magistrate's Court), Mombasa
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gami Quaries (Ltd) v Anthony Ngaita Kavoi [2015] KEELRC 798 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/798/eng@2015-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.