Parvat Builders v Makau (Appeal 81 of 2022) [2023] KEELRC 575 (KLR)
The bottom line
#The High Court upheld an employer's liability for a worker's ladder fall injury but cut the damages award from Kshs 1.4 million to Kshs 600,000.
What this practically means
#Executive summary
#Key legal issues
#Employment relationship
Established on the respondent's uncontroverted evidence and the unchallenged DOSHS Form I identifying the appellant as employer
The appellant adduced no evidence to controvert the claim despite pleading denial of employment. The DOSHS Form I identified the respondent as a general labourer and the appellant as employer, and was never challenged. The trial magistrate's finding that the plaintiff was the defendant's employee injured while on duty could not be faulted.
Negligence and liability
Particulars of negligence proved; the employer, having supplied a faulty ladder, bore the burden of showing it had inspected the equipment and provided a safe system of work and protective gear
The employer was obliged to take all reasonable steps to ensure a reasonably safe workplace. Since it supplied the ladder that was faulty, it had to show it had inspected it and provided helmets, boots, gloves etc. It adduced no evidence, so its defence remained mere allegations. The 90:10 apportionment, reflecting the respondent's failure to check the ladder on his first day, was left undisturbed.
Quantum of damages
The award of Kshs 1,400,000/= was inordinately high for a fractured left femur with full recovery and no permanent disability; reduced to Kshs 600,000/=
Damages are discretionary and are not disturbed unless the trial court acted on wrong principles. The trial court relied exclusively on authorities involving grave, incapacitating injuries, whereas the comparably decided cases (TAM v Richard Kirimi Kinoti; Bhachu Industries) involved similar fractures without incapacity and attracted Kshs 250,000/= and Kshs 300,000/=. The failure to analyse the comparable authorities justified interference.
Legal principles established
#- A first appellate court must re-evaluate and re-assess the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
- An appellate court will not interfere with an award of general damages unless the trial court acted on wrong principles or arrived at an inordinately high or low figure
- An employer bears the burden of demonstrating it provided a safe system of work, safe equipment and protective gear; an uncontroverted claim stands
- Comparable injuries should attract comparable awards to promote certainty and predictability
Court orders
#- 1.Appeal allowed only as to quantum: the award of Kshs 1,400,000/= set aside and substituted with Kshs 600,000/= general damages
- 2.Other awards made by the trial court (including apportionment of liability at 90:10) upheld
- 3.Each party to bear their own costs
- On appeal from
- Senior Resident Magistrate's Court (Hon Mbeja SRM)
- Jurisdiction invoked
- First appeal from the magistrates' court under the Civil Procedure Act; judgment delivered virtually under Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Parvat Builders v Makau (Appeal 81 of 2022) [2023] KEELRC 575 (KLR)", Case Analysis (2023). Appeal No 81 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/575/eng@2023-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.