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ELRCPartially AllowedCause No. 335 of 2015· [2016] KEELRC 1768 (KLR)

Kilonzo Mutunga v Landmark Holdings Limited (Cause 335 of 2016) (Employment and Labour) [2016] KEELRC 1768 (KLR)

Employment and Labour Relations Court
18 January 2016
HWHellen S. Wasilwa
575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker injured on the job won Kshs.480,000 after settling fault 80:20, but lost his claimed expenses because he produced no receipts.

What this practically means

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Executive summary

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The Claimant, Kilonzo Mutunga, filed a Memorandum of Claim on 13/3/2013 against Landmark Holdings Limited, alleging he was employed at the Respondent's Kitui branch in Kwa-Vonza on a monthly salary of Kshs.5,200/=. He averred that on 5/9/2009, while on duty, he was instructed to fill a cracked wall which collapsed, occasioning him serious injuries - dislocation of the right knee joint, fracture of the right fibula bone and post traumatic arthritis. He sought general damages, special damages, costs and interest, pleading an implied term that the Respondent would take precautions for his safety and provide a safe system of work. The Respondent denied the employment, the accident and all particulars of negligence, alternatively blaming the Claimant for ignoring safety rules. On the date of hearing the parties entered a consent on liability at 80:20 in favour of the Claimant, leaving only quantum for determination. The Claimant proposed Kshs.850,000/= in damages; the Respondent filed no submissions on quantum. Relying on the comparative awards in Mbrose Micheni Kinyamu v Gilbert Bundi & Another (Kshs.450,000/=) and Carolyne Indasi Mwonyonyo v Kenya Bus Service Limited (Kshs.350,000/=) for similar injuries, Justice Hellen S. Wasilwa awarded general damages of Kshs.600,000/=, reduced by 20% contributory negligence to Kshs.480,000/=. Special damages, though pleaded, were not proved and nothing was awarded on that limb. The Claimant was awarded costs of the suit. Judgment was read in open court on 18th January 2016.

Key legal issues

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01

Quantum of general damages for dislocation of right knee joint, fracture of right fibula and post traumatic arthritis

Holding

General damages assessed at Kshs.600,000/=, reduced by 20% contributory negligence per the consent on liability, yielding Kshs.480,000/=.

Reasoning

The court relied on comparable awards in Mbrose Micheni Kinyamu v Gilbert Bundi & Another (450,000/=) and Carolyne Indasi Mwonyonyo v Kenya Bus Service Limited (350,000/=) for similar injuries, and, balancing those comparators against the Claimant's submission of 850,000/=, settled on 600,000/= before applying the consented 80:20 liability apportionment.

p. 2
02

Proof of special damages

Holding

Special damages failed for want of proof notwithstanding being pleaded.

Reasoning

The court reiterated the settled principle that special damages must not only be specifically pleaded but also strictly proved. Although the Claimant pleaded special damages as part of the relief sought, no evidence of proof was placed before the court, and the Respondent did not concede the item; accordingly nothing was awarded on that limb of the claim.

p. 2

Legal principles established

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  • Where parties consent on liability, the court's role is confined to assessing quantum of damages.
  • Special damages must be proved even where pleaded.
  • General damages for comparable injuries are assessed by reference to awards in comparable decided cases.

Court orders

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  1. 1.Award of Kshs.600,000/= general damages less 20% contributory negligence, i.e. Kshs.480,000/= to the Claimant
  2. 2.No award on special damages for failure of proof
  3. 3.Claimant awarded costs of the suit

Authorities

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Cases cited (2)

  • Mbrose Micheni Kinyamu v Gilbert Bundi & Another
    (2012) eKLR
  • Carolyne Indasi Mwonyonyo v Kenya Bus Service Limited
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment relationship between the parties)

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, "Kilonzo Mutunga v Landmark Holdings Limited (Cause 335 of 2016)  (Employment and Labour) [2016] KEELRC 1768 (KLR)", Case Analysis (2016). Cause No. 335 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1768/eng@2016-01-18

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