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ELRCDismissedNot stated in the judgment· [2015] KEELRC 798 (KLR)

Gami Quaries (Ltd) v Anthony Ngaita Kavoi [2015] KEELRC 798 (KLR)

High Court of Kenya
3 July 2015
3,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal from a judgment of the Senior Principal Magistrate's Court at Mombasa delivered on 26 September 2014, in which the trial court found the appellant employer liable for injuries suffered by the respondent, a welder who fell through rotten timber while repairing the leaking workshop roof on 31 July 2009, and awarded him general damages of Kshs.550,000 plus special damages of Kshs.2,000 after apportioning liability at 75:25%. The appellant raised ten grounds, contending principally that the respondent was on a frolic of his own, that the duty of care had not been breached because the weakness of the timber was not foreseeable, that the trial court shifted the burden of proof, and that the award of damages was excessive. The court, evaluating the evidence afresh as a first appellate court, found the defence witnesses' accounts so materially contradictory that the respondent's consistent evidence stood unrebutted. It held that Dw2, who deputised the Managing Director and had instructed the roof repairs, was senior to the respondent, so the respondent was within the course of his employment. The court found the employer in breach of the common law duty of care, as codified in section 6 of the Occupational Safety and Health Act 2007, for failing to provide protective gear, competent staff, supervision and a safe roof. It noted that the 25% contributory negligence finding had no evidential support but left it intact because the respondent did not seek its overturning. Applying the Mbogo v Shah standard, the court found no basis to interfere with the quantum. All grounds failed and the appeal was dismissed with costs on 3 July 2015.

Key legal issues

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01

Course of employment

Holding

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

Reasoning

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.

p. 4
02

Duty of care and breach

Holding

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

Reasoning

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.

p. 5
03

Contributory negligence

Holding

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

Reasoning

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.

p. 5
04

Weight of evidence and burden of proof

Holding

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

Reasoning

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.

p. 5
05

Quantum of damages

Holding

The award of Kshs.550,000 general damages was a proper exercise of discretion and not excessive

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.All grounds of appeal fail and the appeal is dismissed with costs
  2. 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

Authorities

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Legislation

  • Evidence ActSections 107, 108 and 109
  • Occupational Safety and Health Act (OSHA)Section 6(1)

Cases cited (3)

  • Isaac Iminya Katambani Versus Firestone E.a. Ltd. [2015] eKLR
    HCCA 527 of 2010
  • Selle Versus Associated motor boat Co. Ltd. [1968] E.A. P. 123
    [1968] E.A. 123
  • Mbogo and another -vs- Shah [1968] EA 93 (CAN)
    [1968] EA 93
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

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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, "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.