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ELRCPartially AllowedELRC Appeal No. 163 of 2008 (formerly Civil Appeal No. 163 of 2008, High Court Mombasa)

Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited [2016] KEELRC 984 (KLR)

Employment and Labour Relations Court
8 July 2016
4,535 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court made the employer pay 100% of a worker's injury damages because blaming the employee without evidence is unacceptable.

What this practically means

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Executive summary

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The Appellant, a Motor Vehicle Electrician employed by the Respondent Salt Company from 1990, was injured on 17th August 2001 while changing a faulty battery on the Respondent's truck, falling backwards from the 5-foot driver's cabin in rainy, slippery conditions without a ladder or safety boots. He left employment in January 2003 due to the injuries. The Trial Court awarded general damages of Kshs. 800,000 and special damages of Kshs. 1,500 but apportioned liability 60:40 against the Appellant, and awarded Kshs. 300,000 for loss of earning capacity. On appeal, the ELRC considered two issues: negligence and liability apportionment, and the adequacy of the damages for loss of earning capacity. The court held that the employer must supply a safe system of work and safety equipment without being asked, must supervise employees, and owes the duty of care to skilled and unskilled employees alike. The Respondent produced no evidence of contributory negligence, and the 40% apportionment was unsupported; liability was placed at 100% on the Respondent, entitling the Appellant to a further Kshs. 320,000 (40% of the Kshs. 800,000 general damages). The court declined to disturb the Kshs. 300,000 award for loss of future earning capacity, holding it is general damages properly assessed by an educated impressionistic guess rather than a multiplier, which the Appellant failed to justify; there is no statutory retirement age of 60 in the private sector. Each party was ordered to bear its own costs of the appeal, with trial court costs unaffected. The judgment follows Mghosi v. Gaya Engineering Works and Longonot Horticulture, and declines to follow the decisions in Wilson Nyanyu Musigisi and Mumias Sugar on manual labour.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Trial Court erred in its findings on negligence and apportionment of liability
  2. 2.Whether damages of Kshs. 300,000 for loss of future earning capacity and/or diminished earning capacity was adequate and properly granted

Key legal issues

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01

Contributory negligence and burden of proof

Holding

The Respondent failed to discharge the burden of proving contributory negligence; the apportionment of 40% liability against the Appellant was unsupported by evidence and set aside, with liability placed at 100% on the Respondent

Reasoning

The Respondent called no evidence showing how dismounting the truck backwards amounted to negligence, and did not demonstrate what the Appellant could have done differently. The uncontradicted evidence showed rain, slippery conditions, a 5-foot cabin and absence of a ladder or safety boots. The court held the employee need not request safety equipment, and the employer's supervisory duty was not discharged.

p. 7
02

Employer's duty to provide a safe system of work

Holding

The employer must supply the safety system and equipment and ensure compliance through supervision; the risk of falling in rainy slippery conditions was not necessarily incidental to employment and was avoidable

Reasoning

Adopting Mghosi v. Gaya Engineering Works and Longonot Horticulture, the court held the supervisor merely instructed the Appellant to start the stalled vehicle without supervisory input. Providing a ladder and safety boots was neither unreasonable nor impracticable, and the risk was foreseeable and avoidable.

p. 7
03

Assessment of damages for loss of future earning capacity

Holding

Loss of future/diminished earning capacity is general damages, not subject to a multiplier unless justified; the award of Kshs. 300,000 was a proper educated impressionistic assessment and was not disturbed

Reasoning

The court distinguished loss of earnings (special damages, strictly proved) from loss of earning capacity (general damages). The Appellant worked for nearly two years after the accident and continued working after termination, and failed to justify a 12-year multiplier. Private-sector retirement age is contractual, so the 60-year figure was inapposite.

p. 7

Legal principles established

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  • An employer must not merely provide a safe system of work but must ensure employees comply with it, through supervision; the employee is not required to request safety equipment
  • The employer's common law duty of care extends to all employees, skilled and unskilled alike; the law does not distinguish between skilled and manual labour in attaching the duty of care
  • Loss of earnings must be specifically pleaded and strictly proved as special damages, whereas loss of future earning capacity is general damages proved on a balance of probability and may be assessed by educated impressionistic guess
  • There is no statutory retirement age of 60 years applying across the entire labour market; retirement age in the private sector is a matter for the parties' contracts

Court orders

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  1. 1.Appeal on negligence and apportionment of liability is allowed
  2. 2.Liability borne by the Respondent at 100%, with the Respondent paying the Appellant 40% of Kshs. 800,000, at Kshs. 320,000, being the balance of general damages
  3. 3.Appeal on assessment of damages for loss of future earning capacity and/or diminished earning capacity is rejected
  4. 4.Parties to bear their costs of the Appeal
  5. 5.Costs in the Trial Court shall remain as granted in that Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (Trial Court)
Jurisdiction invoked
Appeal transferred from the High Court to the Employment and Labour Relations Court under the ELRC's jurisdiction over employment and labour relations disputes

Relief refused

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Interference with the award of Kshs. 300,000 for loss of future/diminished earning capacity and adoption of a multiplier of 12 years

Loss of earning capacity is general damages requiring only proof on a balance of probability; the Trial Court correctly adopted an educated impressionistic award; the Appellant failed to justify the multiplier, and there is no law fixing retirement age at 60 in the private sector

p. 7

Costs

Each party to bear their costs of the Appeal; costs in the Trial Court to remain as granted and satisfied.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is the responsibility of the Employer to supply the safety system and safety equipment to the Employee. There is no law which requires the Employee to make request for such system and equipment as suggested by the Trial Court.
p. 6Employer's non-delegable duty to supply safety equipment
The duty of care is not only owed to Employees with exceptional skills. It extends to all Employees under the law.
p. 6Duty of care owed to all employees regardless of skill level
The risk of falling and getting injured in rainy and slippery conditions cannot be said to have been necessarily incidental to the Appellant's employment. It was avoidable had there been a safe system of work, and proper working tools.
p. 7Risks incidental to employment
The Court is satisfied apportionment of liability on the Appellant at 40%, almost half the blameworthiness, was unsupported by evidence. Appeal on the grounds of negligence and apportionment of liability is allowed. There shall be an order placing liability at 100% on the Respondent.
p. 7Apportionment finding set aside
b. Liability shall be borne by the Respondent at 100%, with the effect that the Respondent pays to the Appellant 40% of Kshs. 800,000, at Kshs. 320,000, being the balance of general damages.
p. 8Final orders
d. Parties to bear their costs of the Appeal.
p. 8Costs of the appeal

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, "Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited [2016] KEELRC 984 (KLR)", Case Analysis (2016). ELRC Appeal No. 163 of 2008 (formerly Civil Appeal No. 163 of 2008, High Court Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/984/eng@2016-07-08

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