Selenite Contractors Limited v John Muthama Mulonzi [2021] KEELRC 2403 (KLR)
The bottom line
#A Kenyan court confirmed an employer must pay full damages when falling objects injure a worker, because the accident itself proved unsafe conditions.
What this practically means
#Executive summary
#Key legal issues
#Whether the cross-appeal was properly filed without a separate memorandum of appeal
The cross-appeal was properly before the Court, exercising the power under Order 42 Rule 32 of the Civil Procedure Rules
The Appellant argued the Respondent lacked a substantive cross-appeal absent a memorandum. The Court invoked Order 42 Rule 32, which empowers the appellate court to make orders in favour of respondents even where they have not filed an appeal or cross-appeal, and found the cross-appeal properly on record.
Whether the Respondent was injured in the course of employment
Yes - the Respondent proved he was injured while on lawful duties at the Appellant's premises
Both defence witnesses confirmed the accident date and that the Respondent was on duty; the Appellant took him to hospital, paid his medical bills and salary during sick-off. The treatment notes and medical report confirmed the injuries, and the report's production was unopposed at trial.
Whether the Appellant was wholly liable
Yes - liability apportionment of 100% against the Appellant was sound; the accident fell within res ipsa loquitur
The Appellant had a statutory duty under the Occupational Safety and Health Act to provide a safe working environment and protective gear. A plywood falling from the first floor was itself proof of an unsafe workplace, and the Appellant produced no evidence that it had availed protective gear.
Whether the award of Kshs.330,000 general damages was excessive or inordinately low
The award was commensurate and fair; no error of principle; both appeal and cross-appeal on quantum failed
Guided by the principles in Bashir Ahmed Butt v Uwais Ahmed Khan and Simon Taveta v Mercy Mutitu Njeru, the Court weighed the fractures to the fourth and fifth toes, soft tissue injuries and 2% permanent disability against comparable awards and found the trial award fair.
Legal principles established
#- A first appellate court must re-evaluate the entire evidence and draw its own conclusions while making allowance for the fact that it did not see or hear the witnesses
- An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate
- Where an object falls from a height and injures a worker, the mere occurrence of the accident is proof of negligence under the doctrine of res ipsa loquitur
- A party who did not object to the production of a document at trial is estopped from raising its admissibility on appeal
Court orders
#- 1.The appeal is dismissed
- 2.The cross-appeal is dismissed
- 3.Each party to bear their own costs of the appeal and cross-appeal
- On appeal from
- Principal Magistrate's Court at Mavoko
- Civil Suit No. 1393 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Principal Magistrate's Court (Order 42 of the Civil Procedure Rules); Employment and Labour Relations Court (Procedure) Rules, Rule 8
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Selenite Contractors Limited v John Muthama Mulonzi [2021] KEELRC 2403 (KLR)", Case Analysis (2021). ELRC Appeal No. 1393 of 2017 (Appeal and Cross Appeal from Mavoko PMCC No. 1393 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2403/eng@2021-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.