Kebirigo Tea Factory Co. Limited v Rebecca Kwamboka Arwasa [2021] KEELRC 2263 (KLR)
The bottom line
#Kenya's Employment Court upheld a Kshs.3.2 million award against Kebirigo Tea Factory for injuring an untrained worker, confirming employers must train staff before assigning them to machinery.
What this practically means
#Executive summary
#Key legal issues
#Liability of employer for workplace injury to an untrained worker assigned to unfamiliar machinery
The trial magistrate correctly attributed 100% liability to the appellant for breach of statutory duty of care; the respondent's evidence of being assigned to the Conveyor section for the first time without training or supervision was uncontroverted.
P.W.1 testified she was reassigned to the Cyclone/Conveyor section without training, knowledge of the risks, or supervision. D.W.1, who denied liability on the basis that the respondent should have used a shovel, admitted he had never worked in the processing department, had not assigned her duties that day, was not at the scene when the accident occurred, and had no records of protective gear provision. His denial was thus speculative and unborne by facts. The court found no misdirection in the magistrate's attribution of 100% liability.
Adequacy of the award of Kshs.1,000,000 general damages for pain and suffering
The court found no misdirection; the award was proportionate to the 30% permanent body disability documented by the unchallenged medical evidence.
P.W.2's testimony that the respondent lost 100% use of her left arm, translating to 30% total body function disability, was not countered. The magistrate correctly applied the Jackline Syombua authority on compensatory damages for permanent injury, listing compound comminuted fracture, elbow dislocation, degloving injuries and contractures. The appellate court found no basis to interfere with the assessment.
Award of Kshs.2,228,400 for loss of earning capacity in absence of documentary evidence
The award, based on a multiplier of 10 years of the respondent's monthly salary of Kshs.18,570, was correctly made applying the Mumia Sugar principles, given her job loss and diminished future employment prospects.
The respondent, aged 21, had lost her job and had grossly diminished prospects of future employment, and could no longer do domestic chores, relying largely on her husband. This evidence was uncontradicted. The court applied the Court of Appeal's principles in Mumia Sugar, which recognise that loss of earning capacity can be awarded as a separate head even where the plaintiff is unemployed at trial, and found the magistrate applied the correct principles.
Proof of special damages of Kshs.15,000 and effect of prior Workmen's Compensation payment
The special damages were adequately pleaded and proved by receipt; the total award was properly made less the Kshs.414,298 already paid under Workmen's Compensation.
P.W.1 paid Kshs.15,000 to Dr. Rante for the medical report and produced a receipt in court; P.W.2 confirmed the payment. The prior payment of Kshs.414,298 by the insurance company did not bar the claim but was deducted from the award, as the trial magistrate had found. The court relied on Coast Bus Service on proof of special damages.
Legal principles established
#- On a first appeal, the court is bound to evaluate the evidence adduced before the trial court afresh, bearing in mind that it did not hear the witnesses directly to assess their credibility.
- An appellate court ought not to vary a trial decision merely because it would have reached a different decision; it must find a misdirection of law or a wrong conclusion on evaluation of facts.
- Damages are compensatory and cannot replace a lost limb; they only assuage the pain or loss suffered.
- An award for loss of earning capacity may be made whether or not the plaintiff is employed at the time of trial, compensating diminished job prospects, and may be a token, modest or substantial award depending on the circumstances.
- Special damages must be specifically pleaded and proved; production of a proper receipt suffices.
Court orders
#- 1.The decision by the trial magistrate is upheld holding the Appellant 100% liable for the injuries caused to the respondent in the course of duty
- 2.The award of General damages for pain and suffering in the sum of Kshs.1,000,000 is upheld
- 3.The award of Kshs.2,228,400 for loss of earning capacity is equally upheld
- 4.Special damages in the sum of Kshs.15,000 is also awarded accordingly
- 5.The aforesaid award is made less the sum of Kshs.414,298 already paid to the respondent as the learned magistrate correctly found
- 6.The Appellant to meet the costs of the suit at the trial Court and the cost of Appeal before this Court
- On appeal from
- Senior Principal Magistrate's Court (Hon. Nyutu)
- not stated in judgment
- Jurisdiction invoked
- First appeal against the judgment of the Senior Principal Magistrate (Employment and Labour Relations matter; specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kebirigo Tea Factory Co. Limited v Rebecca Kwamboka Arwasa [2021] KEELRC 2263 (KLR)", Case Analysis (2021). Memorandum of Appeal dated 21/3/2017 (appeal from Senior Principal Magistrate's judgment of 9/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2263/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.