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ELRCPartially AllowedAppeal No 221 of 2019· [2020] KEELRC 1816 (KLR)

Kings Developers Limited v Samuel Kavai & another [2020] KEELRC 1816 (KLR)

Employment and Labour Relations Court
31 January 2020
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers remain liable for injuries caused by third-party trucks on construction sites, but sharply reduced the damages awarded.

What this practically means

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Executive summary

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Samuel Kavai sued Kings Developers Ltd and others before the Chief Magistrates Court for workplace injuries sustained when a truck owned by Shar Kamal reversed into him at a construction site. On 31 July 2017 the trial Court found the Appellant and Shar Kamal fully liable and awarded general damages of Kshs 1,500,000/-, future medical expenses of Kshs 100,000/- and special damages of Kshs 2,000/-. The Appellant appealed, contending it was not liable for a third party's negligence, that particulars of negligence were not pleaded or proved, and that the awards were excessive. Radido Stephen J, on first appeal, reaffirmed the court's duty to re-evaluate the evidence. On liability, the Court held the employer owed a non-delegable duty of care: the truck was on site at the Appellant's invitation delivering construction materials, making the parties joint tortfeasors and the Appellant a respondeat superior with a duty to control the third-party invitee. The claimant was held to have proved liability on a balance of probabilities and particulars of negligence in the Amended Plaint were held sufficient. On quantum, applying Butler v Butler and considering comparables and inflation, the Court found the general damages award manifestly excessive and substituted Kshs 500,000/-. On future medical expenses, it held the trial Court erred in adopting an at-large expert estimate rather than the figure quoted at a named facility (Kenyatta National Hospital) and substituted Kshs 60,000/-. The appeal was allowed in part; each party was ordered to bear its own costs of the appeal, with the 1st Respondent retaining trial Court costs. Judgment delivered in Nairobi on 31 January 2020.

Key legal issues

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01

Employer's liability for injuries caused by a third party's negligence at the workplace

Holding

The Appellant was liable because the third-party vehicle was on site with its permission delivering materials for its use, making the employer and the third party joint tortfeasors

Reasoning

An employer's duty of care is a legal imperative extending to doing everything reasonably practicable for employee safety. The truck was at the site to deliver construction materials, so the third party was there on the Appellant's invitation. The Appellant, as on-site contractor, was duty-bound to control third-party activities and was a respondeat superior. The Court also noted the Appellant never sought indemnity from the third party.

p. 3
02

Standard of proof on liability

Holding

The 1st Respondent discharged the burden on a balance of probabilities

Reasoning

The Appellant led no evidence on liability and relied on cross-examination of the 1st Respondent, which the Court described as clumsy and captured in only three short paragraphs. On the material on record, the Court found the claimant had met the standard of proof expected of him.

p. 3
03

Pleading of particulars of negligence

Holding

Particulars of negligence were set out at paragraph 9 of the Amended Plaint and were sufficient to put the Appellant on notice

Reasoning

Although the pleading was not drafted with technical precision, the Court held the particulars were apparent on the face of the pleadings and adequately notified the Appellant of the allegations, rejecting the contention that the claim failed for want of particulars.

p. 3
04

Quantum of general damages

Holding

The award of Kshs 1,500,000/- was manifestly excessive; Kshs 500,000/- was appropriate

Reasoning

The Court considered the Appellant's comparables, which involved near-similar injuries but were decided about 10 years earlier, and held inflation is a factor in assessment. Weighing the precedents and inflation, it found the trial Court's award excessive and substituted Kshs 500,000/-.

p. 4
05

Future medical expenses

Holding

The trial Court erred in adopting an at-large estimate instead of the figure given for a named medical facility; the figure of Kshs 60,000/- was substituted

Reasoning

Both parties led medical evidence: the Appellant's doctor estimated Kshs 60,000/- chargeable at Kenyatta National Hospital, while the claimant's expert estimated Kshs 150,000/- without naming any facility. The Court held the trial Court should have adopted the figure at the named medical facility.

p. 4

Legal principles established

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  • An employer is under a duty to ensure a safe work environment for its employees and third parties present at the site on its invitation, and must control the activities of third-party invitees/licensees within the construction site
  • Where a third-party vehicle is on site at the employer's invitation to deliver construction materials, injury to an employee gives rise to joint tortfeasor liability
  • An appellate court should be slow to interfere with an award of damages unless the trial judge acted on wrong principles or the award is so excessive or low that no reasonable court would make it

Court orders

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  1. 1.Appeal allowed to the extent that the judgment of the trial Court is set aside and judgment entered for the 1st Respondent against the Appellant and 2nd Respondent as follows: general damages of Kshs 500,000/- and special damages of Kshs 60,000/-
  2. 2.Each party to bear own costs of the Appeal
  3. 3.1st Respondent to have costs before the trial Court

Authorities

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Cases cited (7)

  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    (2013) eKLR
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    (2009) 2 EA 212
  • Barclay v Penberthy
    (2012) HCA 40
  • Butler v Butler
    (1984) KLR 225
  • Julius Kiprotich v Eliud Mwangi Kihohia
    (2006) eKLR
  • Anthony Mwangi v Martin Muiruri
    (2008) eKLR
  • Alphonse Mwatsuma Mwagamchi v Joseph Mwanzia Mwanzu & Ar
    (2005) eKLR
On appeal from
Chief Magistrates Court
Not stated in the judgment
Jurisdiction invoked
First appeal transferred from the High Court to the Employment and Labour Relations Court

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, "Kings Developers Limited v Samuel Kavai & another [2020] KEELRC 1816 (KLR)", Case Analysis (2020). Appeal No 221 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1816/eng@2020-01-31

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