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ELRCPartially AllowedNot stated in judgment (appeal transferred from High Court)· [2019] KEELRC 2486 (KLR)

Kinoro Tea Factory Company Limited v Josphat Kabilu M’ikirima [2019] KEELRC 2486 (KLR)

Employment & Labour Relations Court
30 January 2019
NMNzioki wa Makau
986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cut an injured worker's payout roughly in half, ruling his own careless handling of a truck door contributed equally to his accident.

What this practically means

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Executive summary

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This was a first appeal transferred to the Employment & Labour Relations Court at Nyeri by order of the High Court (Majanja J.) on 31 May 2018, on the view that the matter fell within that Court's jurisdiction. The appeal challenged a ruling of Acting Principal Magistrate D. W. Mburu delivered on 26 September 2014 in Meru CMCC No. 240 of 2006, in which the Respondent (plaintiff below) had been awarded Kshs. 264,076.80 for loss of earnings following alleged dismissal from employment, Kshs. 100,000/- general damages for soft tissue injuries, with the Appellant (defendant below) found 100% liable for an accident in which a truck rear door hit the Respondent while offloading culverts. The Appellant contended the Respondent was careless in opening the truck door, that liability for dismissal was unfounded as the Respondent absented himself from work, and that the quantum awards were manifestly high; it proposed general damages of Kshs. 20,000/- and nil loss of earnings. The Respondent defended both liability and quantum, relying on the principles governing interference with discretionary awards. Nzioki wa Makau J. rehearsed the duty of a first appellate court to re-evaluate the evidence afresh. He found that the Respondent's own act in running to the back of the truck and opening the rear door alone contributed to the injury, and apportioned liability 50-50, reversing the finding of 100% liability to that extent. He declined to disturb the quantum of damages, finding no error in principle once the Respondent's contribution was factored in. The judgment and decree were substituted so that the Respondent recovers Kshs. 182,618.40 plus costs of the suit in the magistrates' court only; each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Apportionment of liability for the accident

Holding

The Respondent's own conduct in running to the back of the truck and opening the rear door alone, causing it to hit him, warranted apportionment of liability at 50-50 instead of 100% against the Appellant

Reasoning

The court re-evaluated the evidence on the first appeal. It found that the Respondent's own actions contributed to the injury, so the trial Magistrate's finding of 100% liability against the Appellant was reversed and liability shared equally.

p. 2
02

Quantum of damages

Holding

The awards of damages (loss of earnings and general damages) were not disturbed once the Respondent's 50% contribution was taken into account, as there was no error in principle

Reasoning

The court held the damages award was reasonable when contribution was factored in, effectively reducing the recoverable sum to Kshs. 182,618.40 through the apportionment rather than by interfering with the quantum itself.

p. 2

Legal principles established

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  • On a first appeal, the court must analyse and evaluate the evidence afresh and reach its own independent decision, while allowing for the trial court's advantage of seeing and hearing the witnesses
  • An appellate court will not disturb an award of damages where there is no error in principle, taking the parties' contribution into account

Court orders

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  1. 1.Liability apportioned equally between the parties at 50-50, reversing the trial court's finding of 100% liability
  2. 2.Judgment and decree substituted to the extent that the Respondent is entitled to recover the sum of Kshs. 182,618.40
  3. 3.Respondent awarded the costs of the suit before the Magistrates court only
  4. 4.Each party to bear their own costs of the appeal

Authorities

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Cases cited (5)

  • Purity Wambui Murithii v Highlands Mineral Water Co. Ltd
    [2015] eKLR
  • Stapley v Gypsum Mines Ltd
    (1953) 2 A.C. 663
  • Isaac Simiyu v Security Group (K) Limited & Another
    [2013] eKLR
  • Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No. 2)
    [1985] eKLR
  • Simon Kibet Langat v Miriam Wairimu Ngugi (suing as the Administrator of the Estate of Daniel Mwiruti Ngugi)
    [2016] eKLR
On appeal from
Principal Magistrate's Court, Meru
Civil Case No. 240 of 2006
Jurisdiction invoked
Transferred to the Employment & Labour Relations Court by order of the High Court (Majanja J.) dated 31 May 2018; first appeal from a magistrate's court ruling on a claim involving employment (dismissal/loss of earnings) and tort

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, "Kinoro Tea Factory Company Limited v Josphat Kabilu M’ikirima [2019] KEELRC 2486 (KLR)", Case Analysis (2019). Not stated in judgment (appeal transferred from High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2486/eng@2019-01-30

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