Hayer Bishan Singh and Sons Limited v George Odhiambo Amimo [2019] KEELRC 650 (KLR)
The bottom line
#A Kenyan quarry operator that failed to give workers goggles must pay Kshs. 403,000 in damages, after the High Court dismissed its appeal in full.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff was an employee of the defendant
Yes. On re-evaluation, the plaintiff's testimony was consistent and credible; DW1 and DW2 were contradictory and unreliable, and the trial magistrate rightly disregarded their evidence and disallowed the late-produced alleged sub-contract
The court re-evaluated the testimony of PW1, DW1 and DW2 under the Selle principles. DW1 admitted seeing the plaintiff work at the quarry, while DW2 denied ever seeing him or hearing of Ominde contractors, creating irreconcilable contradictions. The defendant's attempt to introduce a sub-contract agreement only after its witnesses testified was rightly rejected as an ambush, leaving the sub-contract defence unproven.
Whether the defendant was liable for the injury
The defendant was 100% liable because it failed to provide protective gear (goggles) for dangerous stone-crushing work
Stone-crushing is dangerous work generating dust and flying particles, requiring the employer to provide at least eye protection. The plaintiff's evidence that no goggles or gloves were provided was uncontradicted. The court endorsed the trial magistrate's finding of 100% liability and returned the same verdict.
Whether the award of Kshs. 400,000 general damages and Kshs. 3,000 special damages was inordinately high
No. The award was within range given the 30% permanent visual disability, the unchallenged medical report, and the passage of time since the comparable authorities were decided
The medical report by Dr. Dorothy Mutie assessing 30% permanent visual disability was produced by consent and unchallenged. The comparable awards cited (Jaget Singh; Njuca Construction) were over ten to fifteen years old, so the trial magistrate correctly accounted for inflation and passage of time. The award was not a wholly erroneous estimate.
Legal principles established
#- On a first appeal, the court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court will only interfere with an award of damages where the trial court took into account irrelevant factors or left out a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate of damages
- Employers engaged in stone-crushing operations are obliged to provide facial and eye protection (goggles) to employees performing that dangerous work
Court orders
#- 1.The verdict of the trial court is upheld and the award of general damages of Kshs. 400,000 at 100% liability and special damages of Kshs. 3,000 is confirmed against the Appellant
- 2.The Appeal is dismissed with costs
- On appeal from
- Principal Magistrate's Court at Winam
- 214 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (the judgment does not cite the specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayer Bishan Singh and Sons Limited v George Odhiambo Amimo [2019] KEELRC 650 (KLR)", Case Analysis (2019). Appeal No 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/650/eng@2019-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.