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ELRCAllowedCivil Appeal No. 11 of 2018· [2020] KEELRC 662 (KLR)

Onesmus Njenga Gachie v Hydery (P) Limited [2020] KEELRC 662 (KLR)

Employment and Labour Relations Court of Kenya at Machakos (originally filed in the High Court at Mombasa)
9 April 2020
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer must pay for a worker's injury caused by a co-worker, awarding the injured labourer over Kshs. 150,000 in damages.

What this practically means

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Executive summary

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This was a first appeal against the dismissal of a workplace injury claim. The Appellant, a casual labourer, was injured on 9th February 2016 while loading bags of fertilizer when a colleague threw a 50 kg bag onto his back. The trial magistrate dismissed his claim, holding that the court could not link the Defendant's negligence to the injury. The appeal was originally filed in the High Court at Mombasa as Civil Appeal No. 11 of 2018, but Chepkwony J determined on 27th March 2019 that the High Court lacked jurisdiction over a claim arising from a workplace injury based on an employment relationship, and the matter proceeded in this Court. Applying the first-appeal standard in Selle v Associated Motor Boat Co., the Court re-evaluated the evidence and found that the accident was undisputed, that the Respondent's witness produced no record of safety gear having been supplied, and that the allegations of contributory negligence were unsupported by evidence. Relying on Rose v Plenty, the Court held the magistrate erred in absolving the Respondent without considering vicarious liability for the co-worker's wrongful act committed in the course of employment. Further, citing Lei Masaku v Kulpana Builders Ltd, the Court faulted the magistrate for failing to assess damages, a required step for non-final courts. Assessing quantum itself, guided by comparable awards and medical reports showing soft tissue injuries with no permanent disability, the Court awarded Kshs. 150,000 in general damages and Kshs. 2,000 in special damages, set aside the trial judgment, and awarded the Appellant the costs of the appeal and of the court below. The judgment was delivered electronically during the COVID-19 pandemic with the parties' consent.

Key legal issues

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01

Vicarious liability of the employer for a co-worker's act

Holding

Having found that the accident occurred in the course of work when a colleague wrongfully threw a 50 kg bag at the Appellant, the trial magistrate ought to have applied the principle of vicarious liability and found the Respondent liable.

Reasoning

The magistrate expressly found there was no dispute that the accident occurred while the Appellant, a casual labourer, was in the course of his duties. Yet the magistrate absolved the Respondent without considering vicarious liability at all. Applying Rose v Plenty, an employer who puts the enterprise in motion is liable for damage originating from it; the co-worker's wrongful throw in the flow of work therefore engaged the Respondent's vicarious liability.

p. 3
02

Contributory negligence of the Appellant

Holding

The allegations of negligence against the Appellant were mere statements unsupported by evidence; contributory negligence does not arise.

Reasoning

The Respondent's witness asserted that the Appellant was the sole author of his misfortune for failing to take precautions, but produced no record showing that safety gear had been supplied. No evidence substantiated the pleaded particulars of the Appellant's negligence, so the trial court's implied finding of contributory negligence had no evidential foundation.

p. 3
03

Failure of the trial court to assess damages

Holding

The trial magistrate erred in failing to undertake an assessment of damages he would have awarded had he found for the Appellant.

Reasoning

Relying on Lei Masaku v Kulpana Builders Ltd, a court of first instance must assess damages even when dismissing liability, since its decisions are appealable and the appellate court needs its view on quantum. The omission was a serious flaw. This Court, guided by comparable awards and medical reports showing soft tissue injuries without permanent disability, assessed general damages at Kshs. 150,000 plus Kshs. 2,000 special damages.

p. 3
04

Quantum of damages

Holding

Kshs. 150,000 in general damages and Kshs. 2,000 in special damages awarded, allowing for inflation and the Appellant's diminished earning capacity.

Reasoning

Medical reports by Dr. Ajoni Adede and Dr. Udayan R. Sheth established soft tissue injuries with no permanent disability, with residual back pain. The Appellant, aged 44 at the accident, could continue working but his earning capacity appeared diminished given the manual nature of his work. Comparable awards (Rosemary Nanjala Baiba), adjusted for inflation, supported Kshs. 150,000 in general damages plus special damages of Kshs. 2,000.

p. 3

Legal principles established

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  • On a first appeal, the court is obligated to reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind that it had no opportunity to observe the demeanour of the witnesses.
  • An employer is vicariously liable for the tort of his employee committed in the course of employment because the employer set the enterprise in motion.
  • A court of first instance must assess damages even where it finds liability not established, because its decision is appealable and the appellate court needs to know its view on quantum.

Court orders

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  1. 1.The judgment of the trial court dated 2nd February 2018 is set aside and replaced with judgment for the Appellant
  2. 2.Award of Kshs. 150,000 in general damages
  3. 3.Award of Kshs. 2,000 in special damages
  4. 4.The Respondent to pay the costs of this appeal and of the court below

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Selle & another v Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Rose v Plenty & another
    [1976] 1 ALL ER 97
  • Lei Masaku v Kulpana Builders Ltd
    [2014] eKLR
  • Munza Investment Company Limited v Makau Mwonewa
    [2012] eKLR
  • Sokoro Saw Mills Limited v Grace Nduta Ndungu
    [2006] eKLR
  • Rosemary Nanjala Baiba v Benson Irungu
    Nairobi HCCC No 577 of 1991
On appeal from
Magistrates' Court (trial court); appeal first lodged in the High Court at Mombasa and transferred for want of jurisdiction
Trial court judgment dated 2nd February 2018; Civil Appeal No. 11 of 2018 (High Court, Mombasa)
Jurisdiction invoked
First appeal transferred to this Court because the claim arose from a workplace injury based on an employment relationship (the High Court having determined it had no jurisdiction); electronic delivery pursuant to Article 159(2)(d) and Article 40 of the Constitution, Section 18 of the Civil Procedure Act and Order 21 Rule 1 of the Civil Procedure Rules

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, "Onesmus Njenga Gachie v Hydery (P) Limited [2020] KEELRC 662 (KLR)", Case Analysis (2020). Civil Appeal No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/662/eng@2020-04-09

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