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ELRCPartially AllowedELRC Appeal No. 39 of 2017 (transferred from High Court, Mombasa); original: Senior Resident Magistrate's Court Civil Case· [2019] KEELRC 1108 (KLR)

Kitchen King Limited v Ali Mwinyikai Selewa [2019] KEELRC 1108 (KLR)

Employment and Labour Relations Court
19 July 2019
1,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondent, Ali Mwinyikai Selewa, successfully sued his employer in the Senior Resident Magistrate's Court for a work injury sustained on 31st March 2014. By judgment of 17th February 2017 the trial court apportioned liability at 100% against the employer and awarded general damages of Kshs. 800,000, special damages of Kshs. 2,000, and Kshs. 200,000 for removal of a metal implant, with costs and interest. The employer appealed on 12 grounds, principally challenging the 100% liability apportionment, the quantum of general damages, the preference of Dr. Ndegwa's evidence over Dr. Udayan Sheth's, and the Kshs. 200,000 implant-removal award. The appeal was originally filed in the High Court at Mombasa and transferred to the E&LRC on 25th July 2018 on jurisdictional grounds; the court lamented litigants' persistent filing of such appeals in the wrong court. The court found from the respondent's cross-examination that he bore a measure of liability, having insisted on using the chain block instead of the trolley, but that the employer bore the primary duty to provide a safe system of work and had led no evidence of such measures. It reworked liability at 70% against the appellant and 30% against the respondent. It upheld the general damages award as not excessive, rejected the challenge to the preference for Dr. Ndegwa (who testified and was cross-examined, unlike Dr. Udayan whose report was untested), and upheld the Kshs. 200,000 implant-removal award, consistent with two superior court decisions. The appeal was allowed in part on liability only.

Key legal issues

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01

Apportionment of liability for work injury

Holding

Liability apportioned 70% against the Appellant employer and 30% against the Respondent employee who contributed to causation

Reasoning

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.

p. 2
02

Weight of expert medical evidence

Holding

The Trial Court properly preferred Dr. Ndegwa's evidence over Dr. Udayan's report

Reasoning

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.

p. 3
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Assessment of general damages

Holding

The award of Kshs. 800,000 in general damages was not excessive

Reasoning

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.

p. 2
04

Award of future medical costs (removal of metal implant)

Holding

The Trial Court did not err in awarding Kshs. 200,000 for removal of the metal implant

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Appeal is allowed in part on liability
  2. 2.The Appellant shall bear 70% liability, while the Respondent bears contributory liability at 30%
  3. 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. 4.No order on the costs of the Appeal
  5. 5.Interest allowed at 14% per annum from the date of the Judgment till payment is made in full

Authorities

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Cases cited (2)

  • Regina Mwikali Wilson v. Stephen M. Gichuhi & Anor.
    [2015] eKLR
  • Zipporah Nangila v. Eldoret Express Limited & 2 Others
    [2016] e-KLR
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

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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, "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.