Mwathi v Kewal Contractors Limited & another (Appeal 70 of 2018) [2022] KEELRC 23 (KLR)
The bottom line
#Kenya's Employment Court ruled that hirers can be liable for their contractor's negligence when they pick an incompetent contractor or fail to ensure valid insurance.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred by considering only the general rule on independent contractor liability and ignoring the exceptions pleaded
Yes - the trial magistrate fell into error by considering the general principle in ignorance of the exceptions to it
The appellant pleaded negligence in the selection and retention of the contractor and failure to ensure insurance, which invoked the recognised exceptions to the general rule that an employer is not liable for an independent contractor's torts. The trial magistrate considered only the general rule and never asked whether the circumstances compelled departure from it, thereby misdirecting herself on the law applicable to the claim.
Whether the 2nd Respondent negligently selected or retained an incompetent contractor
Yes - the 2nd Respondent selected an incompetent contractor and cannot escape liability
The contract was terminated for the contractor's failure to complete due to liquidity challenges shortly after the accident; the contractor lacked insurance at the material time despite contractual obligations; the 2nd Respondent failed to inspect policies as its witness admitted was its duty; and the contractor vanished without compensating the appellant. These facts established negligent selection and retention of an incompetent independent contractor.
Whether there was valid workmen's insurance cover at the time of the accident
No - the court found there was no cover at the time of the accident
The appellant tendered a debit note showing the policy insured Kewal Construction Limited and expired on 10th June 2008, before the May 2009 accident. The 2nd Respondent's witness merely asserted a valid insurance existed but produced no documents, and admitted he could not say whether the 2nd Respondent discharged its duty to inspect policies. The assertions were bald and unproved.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while making due allowance for the trial court
- The general rule that an employer is not liable for an independent contractor's negligence is subject to exceptions, including negligent selection or retention of the contractor, non-delegable duties, and ultra-hazardous work
- Where a contract imposes mandatory obligations on an employer to superintend a contractor's insurance and to insure on default, those obligations are not ornamental and breach of them attracts liability
Court orders
#- 1.The learned trial Magistrate's Judgment on liability is set aside
- 2.Judgment entered against the 1st and 2nd Respondents jointly and severally for the Appellant's loss and damage
- 3.The quantum assessed by the learned trial Magistrate stands as there was no cross-appeal
- 4.Costs of the Appeal to the Appellant
- On appeal from
- Chief Magistrate's Court (trial before Hon. R. A. Oganyo, SPM)
- CMCCC No. 439 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (appeal by way of retrial per Selle v Associated Motor Boat Limited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwathi v Kewal Contractors Limited & another (Appeal 70 of 2018) [2022] KEELRC 23 (KLR)", Case Analysis (2022). CMCCC No. 439 of 2013 [formerly Nairobi HCCC No. 235 of 2012]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/23/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.