Onesmus Njenga Gachie v Hydery (P) Limited [2020] KEELRC 662 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Vicarious liability of the employer for a co-worker's act
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.
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.
Contributory negligence of the Appellant
The allegations of negligence against the Appellant were mere statements unsupported by evidence; contributory negligence does not arise.
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.
Failure of the trial court to assess damages
The trial magistrate erred in failing to undertake an assessment of damages he would have awarded had he found for the Appellant.
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.
Quantum of damages
Kshs. 150,000 in general damages and Kshs. 2,000 in special damages awarded, allowing for inflation and the Appellant's diminished earning capacity.
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.
Legal principles established
#- 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
#- 1.The judgment of the trial court dated 2nd February 2018 is set aside and replaced with judgment for the Appellant
- 2.Award of Kshs. 150,000 in general damages
- 3.Award of Kshs. 2,000 in special damages
- 4.The Respondent to pay the costs of this appeal and of the court below
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.