Mwaniki v Ultimate Security Services Limited & another (Cause 857 of 2017) [2023] KEELRC 178 (KLR)
The bottom line
#A Kenyan court ruled that security firms must equip guards for the actual risks they face, and awarded an assaulted guard Kshs 1.42 million.
What this practically means
#Executive summary
#Key legal issues
#Employer's liability for injuries to a security guard attacked by armed robbers
The respondents were negligent for failing to provide a safe working environment, including adequate protective equipment and an emergency response to the claimant's call for back-up.
The claimant and colleagues were sent at midnight to answer an alarm with only helmets, batons and gowns. Gun-toting robbers could not be restrained by batons; no bullet-proof vests were provided. The employer knew of the risk, and no evidence showed measures taken to summon assistance when the claimant called for back-up. Foreseeable risk demanded measures to eliminate or reduce it.
Rejection of the respondents' occupational-hazard and contributory-negligence defences
The defences failed; it was illogical to say the claimant exposed himself, and the encounter with armed robbers was not a dispositive occupational hazard.
The court found it preposterous to send guards on a 'confirmatory and suicidal mission' to verify an obvious danger. The employer should instead introspect on the measures taken before and during the incident, given rampant violent robberies and the foreseeable risk to guards.
Admissibility of unstamped special damages documents
The special damages documents were admitted; the Stamp Duty Act objection, first raised in closing submissions, was rejected.
Relying on Diamond Trust Bank Kenya Limited v Jaswinder Singh Enterprises, the court held the respondents should have objected at trial so the claimant could pay duty and penalty. There was no trial objection and the documents were admitted by consent, save the medical report the respondents objected to.
Quantum of general and special damages
General damages awarded at Kshs 1,400,000 and special damages at Kshs 20,665 as pleaded.
The claimant suffered fracture of the anterior wall of maxillary antra with hemosinus, nasal cavity haematomas and left orbital radioplaque foreign body, assessed at 6% permanent disability. His injuries compared well with those in decisions cited by both parties, guiding an award of Kshs 1,400,000.
Legal principles established
#- The degree of care an employer owes must be commensurate with the degree of risk employees are exposed to; guards confronting armed robbers must be provided equipment adequate to that risk.
- Private security firms must arm and train at least some of their guards with firearms when assigning dangerous missions; encountering armed robbers is not merely an occupational hazard excusing the employer.
- An objection to unstamped documents under the Stamp Duty Act must be raised during trial so the producing party may cure it, and the court should allow payment of duty and penalty before rejection.
- Assessment of damages is discretionary and must not be inordinately high or low so as to represent an entirely erroneous estimate.
Court orders
#- 1.The respondents shall pay to the claimant special damages at Kshs 20,665 and general damages for pain and suffering at Kshs 1,400,000 – total Kshs 1,420,665
- 2.Costs to the claimant
- 3.Interest allowed at court rates, from the date of Judgment, till payment is made in full
- Jurisdiction invoked
- Jurisdiction conceded by both parties; the claim was filed as a statement of claim under the Court's employment and labour jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki v Ultimate Security Services Limited & another (Cause 857 of 2017) [2023] KEELRC 178 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/178/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.