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ELRCPartially AllowedNot stated in judgment (appeal filed in the High Court at Kericho on 14.1.2013, transferred to ELRC Nakuru on 1/11/2018)· [2022] KEELRC 816 (KLR)

James Finlaly (K) Ltd v Benard Kipsang Koechi [2022] KEELRC 816 (KLR)

Employment and Labour Relations Court
10 February 2022
OMOnesmus N Makau
3,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent sued his employer, the appellant, after a pruning knife slipped and cut his right hand while he was pruning tea on 18/4/2003. He pleaded negligence, breach of statutory duty and breach of contract of employment. The trial magistrate found the respondent had been injured in the course of employment, apportioned liability at 20% to the employee, and awarded Kshs 280,000 general damages plus Kshs 5,500 special damages, guided by Great Lakes Transport Co. Ltd v KRA. The employer appealed on liability and quantum, arguing the claim was unproved and the employee was solely to blame, citing authorities on slipping knives. The respondent relied on authorities establishing the employer's duty to provide safe equipment. On first appeal, the court, guided by Kenya Ports Authority v Kuston, re-evaluated the evidence. It held the injury on the material date was proved on a balance of probability, drawing an adverse inference from the employer's failure to produce the treatment register for 18/4/2003. On liability, the court held the employer's duty of care is not absolute; the un-rebutted evidence of a defective knife distinguished the appellant's authorities, but the employee who accepted and controlled the defective tool was largely to blame. The apportionment was varied to 70% respondent and 30% appellant. The quantum award was left undisturbed because the medical report was absent from the Record of Appeal. The appeal was allowed partially, with the appellant to pay 30% of Kshs 285,500 (Kshs 85,650) and awarded half the costs of the appeal.

Key legal issues

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01

Whether the respondent was injured on 18/4/2003 in the course of employment

Holding

Yes - proved on a balance of probability; the failure to produce the treatment register for the material day invited an adverse inference

Reasoning

The respondent testified he was injured while pruning tea on the material day and produced a medical report by Dr Ayuoga. The appellant relied only on the register for 18/3/2003, filed before the plaint was amended to 18/4/2003. DW1 admitted all treatment records were retained by the hospital, so failure to produce them supported the inference they would have favoured the respondent.

p. 3
02

Whether the appellant was liable for the respondent's injuries

Holding

Partially - both parties were negligent; liability apportioned 70% respondent, 30% appellant

Reasoning

The respondent gave un-rebutted evidence that the knife was defective, held together by a rubber band, and that a complaint to the supervisor went unaddressed; this distinguished the case from authorities where employees were solely to blame. However, the respondent accepted and used the defective knife, controlled it and applied the force, so he was largely to blame. The trial court erred in blaming the employer more than the employee.

p. 4
03

Whether the general damages award of Kshs 280,000 should be disturbed

Holding

No - the award stands because the medical report was not in the Record of Appeal and no basis was shown to interfere

Reasoning

The applicable principle is that an appellate court will not disturb a discretionary award unless it is inordinately high or low or based on wrong principles. The respondent's medical report by Dr Ayuoga was not included in the Record of Appeal, which prevented the court from assessing whether the award was excessive; the award of Kshs 280,000 general damages and Kshs 5,500 special damages therefore remains.

p. 5

Legal principles established

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  • The employer's duty of care is not absolute and does not absolve the employee from exercising due care to avoid foreseeable risk
  • An appellate court will not disturb a discretionary award of damages unless it is inordinately high or low, or the trial court proceeded on wrong principles or misapprehended the evidence

Court orders

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  1. 1.Appeal allowed partially by setting aside the finding on liability by the lower court
  2. 2.Substitution of the apportionment of liability: respondent 70% to blame, appellant 30% liable
  3. 3.Award of Kshs 280,000 general damages and Kshs 5,500 special damages undisturbed, with the appellant to pay the respondent Kshs 285,500 x 30% = Kshs 85,650
  4. 4.Appellant awarded half costs of the appeal

Authorities

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Legislation

  • Workmen Compensation ActNot specified
  • ELRC Procedure RulesRule 28(3)

Cases cited (12)

  • Great Lakes Transport Co. Ltd v KRA
    [2009] KLR 720
  • Abdala Baya Mwanyule v Swalahadin Limited t/a Jomvu Total Petrol Station
    [2004] 1 KLR 47
  • Statpack Industries Limited v James Mbithi Munyao
    [2005] eKLR, HCCA No. 152 of 2003
  • Canaan Agricultural Contractors Ltd v Bavas Mutayo
    [2013] eKLR
  • Karita v Mbuthia
    [1985] HCCA No. 2765 of 1985 (UR)
  • Boniface Muthama Kavita v Canton Manufacturers Ltd
    [2015] eKLR
  • Mkube v Nyamuro
    [1983] KLR 403
  • Khan v Buth
    [1982-88] KLR 1
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2 EA 212
  • South Nyanza Sugar Co. Ltd v Omwando
    [2017] eKLR
  • Wilson Nyanyu Musigisi v Sasini Tea & Coffee Ltd
    [2006] eKLR
  • Butt v Khan
    [1982-88] KAR 1
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's suit transferred to this court on account of jurisdiction (ELRC)

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, "James Finlaly (K) Ltd v Benard Kipsang Koechi [2022] KEELRC 816 (KLR)", Case Analysis (2022). Not stated in judgment (appeal filed in the High Court at Kericho on 14.1.2013, transferred to ELRC Nakuru on 1/11/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/816/eng@2022-02-10

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