Kings Developers Limited v Samuel Kavai & another [2020] KEELRC 1816 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Employer's liability for injuries caused by a third party's negligence at the workplace
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
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.
Standard of proof on liability
The 1st Respondent discharged the burden on a balance of probabilities
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.
Pleading of particulars of negligence
Particulars of negligence were set out at paragraph 9 of the Amended Plaint and were sufficient to put the Appellant on notice
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.
Quantum of general damages
The award of Kshs 1,500,000/- was manifestly excessive; Kshs 500,000/- was appropriate
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/-.
Future medical expenses
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
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.
Legal principles established
#- 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
#- 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.Each party to bear own costs of the Appeal
- 3.1st Respondent to have costs before the trial Court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.