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ELRCPartially AllowedAppeal No 81 of 2022· [2023] KEELRC 575 (KLR)

Parvat Builders v Makau (Appeal 81 of 2022) [2023] KEELRC 575 (KLR)

High Court of Kenya
8 March 2023
4,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the High Court (Gakeri J, delivered virtually at Nairobi on March 8, 2023) against the judgment of Hon Mbeja SRM of September 13, 2018, in which a labourer who fell from a faulty ladder on his first day of work was awarded Kshs 1,400,000/= in general damages with liability apportioned at 90:10 in his favour. The appellant, whose defence was unsupported by any evidence at trial, raised seven grounds summarised as jurisdiction, employment relationship, negligence, and quantum. The jurisdiction ground was abandoned. On employment and negligence, the court held the respondent's evidence stood uncontroverted; the unchallenged DOSHS Form I identified the appellant as employer, and since the appellant supplied the ladder, the burden lay on it to prove it had inspected the equipment and provided a safe system of work and protective gear. The 90:10 apportionment was upheld, the respondent's failure to check the ladder being partly negligent. On quantum, the court found the trial magistrate had relied exclusively on authorities involving grave, incapacitating injuries, whereas comparable cases (TAM v Richard Kirimi Kinoti; Bhachu Industries) involving fractured femurs with full recovery attracted Kshs 250,000/= and Kshs 300,000/=. Applying the principle that comparable injuries merit comparable awards, and that an appellate court may interfere where the award is inordinately high, the court reduced general damages to Kshs 600,000/=, upheld all other awards, and ordered each party to bear their own costs.

Key legal issues

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01

Employment relationship

Holding

Established on the respondent's uncontroverted evidence and the unchallenged DOSHS Form I identifying the appellant as employer

Reasoning

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.

p. 4
02

Negligence and liability

Holding

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

Reasoning

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.

p. 5
03

Quantum of damages

Holding

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/=

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.Other awards made by the trial court (including apportionment of liability at 90:10) upheld
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Occupational Safety and Health ActSection 6(1)
  • Work Injury Benefits Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (21)

  • TAM (minor suing through her father and next friend J.O.M) v Richard Kirimi Kinoti & another
    [2015] eKLR
  • Bhachu Industries Ltd v Peter Kariuki Mutura
  • Selle v Assorted Motor Boat Co
    [1968] EA 123
  • Garton Ltd v Nancy Njeri Nyoike
    [2016] eKLR
  • Catholic Diocese of Kisumu v Tete
    (2004) 2 KLR
  • Patrick Kinyanjui Njama v Evans Juma Mukweyi
    [2017] eKLR
  • Lucy Waruguru Gatonde v Francis Kinyanjui Njuku
    [2017] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Peters v Sunday Post Ltd
    [1958] EA
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Michael Njagi Karimi v Gideon Ndungu & another
    [2013] eKLR
  • Waladi v Kenya Cargo Handling Services Ltd
    CA 86 of 1986
  • Mumias Sugar Co Ltd v Charles Namatiti
    Civil Appeal No 151 of 1987
  • Kemro v A.M Lubia & Olive Lubia
    [1982-88] 1 KAR 727
  • Kitavi v Coast Bottlers Ltd
    [1985] KLR 47
  • Butt v Khan
    [1982-1985] KAR 1
  • Lucy Wanjiku Kagunda v Julius Gachau Mwangi
    CA/142/2003
  • Charles Wanyoike Githuka v Joseph Mwangi Thuo & 2 others
    [2008]
  • Raphael Muthoka Mailu v Ernest Jacob Kisaka
    [2009] eKLR
  • Arkipo Odhiambo Otieno v Kenya Bus Service Ltd
    [2005] eKLR
  • Arrow Car Ltd v Elija Shamalla Bimomo & 2 others
    [2004]
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

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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, "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.