Kitchen King Limited v Ali Mwinyikai Selewa [2019] KEELRC 1108 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Apportionment of liability for work injury
Liability apportioned 70% against the Appellant employer and 30% against the Respondent employee who contributed to causation
The respondent conceded on cross-examination that he advised colleagues against using the trolley and insisted on the chain block, which caused the accident. However, the employer bore the overall duty to ensure a safe system of work and led no evidence of the measures it had put in place. Balancing these, the trial court's 100% apportionment was excessive.
Weight of expert medical evidence
The Trial Court properly preferred Dr. Ndegwa's evidence over Dr. Udayan's report
Dr. Ndegwa testified in person and was cross-examined; his qualifications were never challenged. Dr. Udayan only had his report exhibited with consent, did not testify, and his report was a reaction meant to contradict Dr. Ndegwa's. The Trial Court's remark about paid experts was a general observation applicable to all medical witnesses.
Assessment of general damages
The award of Kshs. 800,000 in general damages was not excessive
The Trial Court considered decisions of the High Court and Court of Appeal cited in the record, and took into account the years those decisions were made and the injuries sustained. No basis was shown to disturb the award.
Award of future medical costs (removal of metal implant)
The Trial Court did not err in awarding Kshs. 200,000 for removal of the metal implant
The award was based on Dr. Ndegwa's evidence, which was tested in cross-examination, and was consistent with two superior court decisions awarding Kshs. 200,000 and Kshs. 250,000 respectively. Dr. Udayan's lower figure of Kshs. 60,000 was in an untested report.
Legal principles established
#- It is primarily the employer's responsibility to put in place a proper and safe system of work, and this duty informs apportionment where an employee contributes to causation
- An expert who does not testify in person and is not subjected to cross-examination cannot have his report preferred over that of an expert who testified
Court orders
#- 1.The Appeal is allowed in part on liability
- 2.The Appellant shall bear 70% liability, while the Respondent bears contributory liability at 30%
- 3.General damages shall be paid by the Appellant to the Respondent at Kshs. 560,000; special damages at Kshs. 2,000; and costs of removal of metal implant at Kshs. 200,000 - total Kshs. 762,000
- 4.No order on the costs of the Appeal
- 5.Interest allowed at 14% per annum from the date of the Judgment till payment is made in full
- On appeal from
- Senior Resident Magistrate's Court
- Civil Case (details at title of judgment)
- Jurisdiction invoked
- Appeal transferred from the High Court to the E&LRC on jurisdictional grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitchen King Limited v Ali Mwinyikai Selewa [2019] KEELRC 1108 (KLR)", Case Analysis (2019). ELRC Appeal No. 39 of 2017 (transferred from High Court, Mombasa); original: Senior Resident Magistrate's Court Civil Case. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1108/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.