Josephat Kaliche Ambani v Farm Industries Limited [2016] KEELRC 415 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer fully liable for a worker's injury caused by improvised tools, awarding Kshs. 201,500 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Employer's liability for injuries sustained in the course of employment
The Respondent was held wholly (100%) liable for the accident because it failed to provide proper tools, a safe system of work or adequate protective gear.
The court found as fact that the Appellant was injured while separating a tyre from a rim using a metal rod, because the Respondent had no machine for the task. The supervisor instructed the Appellant to repair the puncture without supplying proper tools or protective gear, and no evidence showed he was trained for the work. The improvised use of inappropriate tools demonstrated breach of the employer's common law and statutory duty of care. The trial magistrate's finding that the injuries were self-inflicted was a misdirection, since the injury was accidental, not deliberate.
Duty of a first appellate court on re-evaluation of evidence
The court applied the Selle principle that a first appeal is by way of retrial, requiring re-evaluation of the evidence while making due allowance for not having seen or heard the witnesses.
The court cited Selle v Associated Motor Boat Co. and re-evaluated the trial evidence, including the testimony of DW1 who conceded the Appellant was injured in the course of duty while using a piece of metal. On that re-evaluation the court concluded the trial magistrate misdirected herself in finding the injuries self-inflicted and arrived at a wrong conclusion, justifying interference with the first-instance judgment.
Failure by the trial court to assess quantum
The failure to assess damages was a serious flaw; the appellate court proceeded to assess quantum itself, awarding Kshs. 200,000/- in general damages.
Relying on Lei Masaku v Kalpama Builders Ltd, the court held that courts of first instance must assess damages even where liability fails, so that appellate courts know the trial court's view on quantum. The trial magistrate's omission was therefore a flaw. The court then compared comparable awards: Jeredi Ukilu Osango (soft tissue injury, Kshs. 180,000/-) against the Appellant's soft tissue injury to the left knee with 10% impairment and expected recurrent chronic pain and stiffness, and found Kshs. 200,000/- reasonable.
Legal principles established
#- An employer is under a duty to provide a safe place of work and a safe system of work, and is liable where the employee is injured using improvised, inappropriate tools.
- An employer is responsible for accidents occurring while an employee handles machinery in the course of employment.
- A court of first instance must assess damages even where it finds liability has not been established, as neither the trial court nor the first appellate court is a court of last resort.
Court orders
#- 1.Appeal allowed; trial magistrate's judgment dismissing the Appellant's suit set aside and substituted with judgment for the Appellant on liability at 100%
- 2.General damages of Kshs. 200,000/- awarded with interest from the date of judgment until payment in full
- 3.Special damages of Kshs. 1,500/- awarded
- 4.Appellant awarded costs of the suit and costs of the appeal
- On appeal from
- Senior Resident Magistrate's Court at Butali
- Butali RMCC No. 29 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over appeal from the magistrate's court (subsequently transferred to the Employment & Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Prosel Limited v Timothy (Appeal E242 of 2023) [2024] KEELRC 2821 (KLR)[2024] KEELRC 2821 (KLR)14 Nov 2024
- K.K. Kerosene Distributors Ltd t/a K.K. Services Stations v John Ndung'u Gathua[2019] KEHC 8984 (KLR)27 Mar 2019applied
Cite this brief
#Cite this brief
Caselaw, "Josephat Kaliche Ambani v Farm Industries Limited [2016] KEELRC 415 (KLR)", Case Analysis (2016). Civil Appeal No. 11 of 2015 (formerly Kakamega High Court Civil Appeal No. 70 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/415/eng@2016-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.