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ELRCDismissedBungoma High Court Civil Appeal arising from Bungoma Civil Suit No. 314 of 2016 (Memorandum of Appeal dated 18th April 2017)· [2023] KEELRC 1578 (KLR)

Ima Hauliers Limited v Samuel (Employment and Labour Relations Appeal 2 of 2023) [2023] KEELRC 1578 (KLR)

High Court of Kenya
29 June 2023
JKJemimah Keli
3,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed Nzoia Sugar must pay an injured employee driver, holding employers responsible for keeping their vehicles mechanically safe.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. S.O Mogute (PM) in Bungoma Civil Suit No. 314 of 2016, delivered on 5th April 2017, in which the respondent, a driver employee of the appellant, was awarded general damages of Kshs. 100,000/- and special damages of Kshs. 1,000/- after he was injured when the tractor he was driving lost control following brake failure along the Bungoma-Mumias road. The appeal, filed at Bungoma High Court and transferred to Kakamega by order of Justice D.K Kemei dated 24th February 2023, challenged both liability and quantum, contending inter alia that the trial magistrate treated the evidence superficially, ignored contributory negligence, and that the respondent failed to prove negligence. Adopting the established first appellate court duty to re-evaluate and re-analyse the evidence, the court found that an employer-employee relationship existed, the accident vehicle belonged to the appellant, and the respondent was injured. The defence documents (stock issues statement and trip cards) proved only purchases, not servicing or repair, and the reported mechanical defects were never controverted. Relying on Ima Hauliers v Mohammed Nyongesa Murende, Boniface Muthama Kavita v Canton Manufactures and section 6 of the Occupational Safety and Health Act, the court upheld liability at 100% against the appellant and found no contributory negligence. On quantum, applying the Butt v Khan principles and distinguishing the authority cited by the appellant, the court found the Kshs. 100,000/- award neither inordinately high nor erroneous, the respondent not having fully healed. The appeal was dismissed in its entirety with costs to the respondent, with a stay of 30 days granted.

Key legal issues

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01

Liability for the road accident caused by brake failure of the employer's motor vehicle

Holding

The respondent proved negligence on balance of probabilities; liability at 100% against the appellant upheld; no contributory negligence found

Reasoning

The court re-evaluated the defence evidence. DEXB1 was proof of purchase of stocks, not evidence of repair or servicing of the accident motor vehicle. The mechanical defects had been reported to Asman, the supervisor, whom the appellant did not deny was its employee, and the defence witness had no evidence controverting the mechanical defects. The employer's statutory duty under section 6 of the Occupational Safety and Health Act and common law duty of care were applied.

p. 5
02

Whether the award of Kshs. 100,000/- general damages was excessive

Holding

The award was upheld as neither inordinately high nor erroneous, the respondent having sustained soft tissue injuries to the head and chest and not having fully healed

Reasoning

Applying the Butt v Khan principles, the court compared the authority cited by the appellant (swollen and tender left foot and ankle, healing injuries) and found the instant injuries more severe. The respondent still suffered chest cage pains at trial. The court found no reason to disturb the award.

p. 7

Legal principles established

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  • An employer owes a duty of care to keep its vehicle in good mechanical condition and cannot rely on a driver's failure to report a defect as a defence
  • An appellate court will not disturb an award of damages unless it is inordinately high or low or the judge proceeded on wrong principles

Court orders

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  1. 1.The judgment of the lower court is upheld in its entirety
  2. 2.The appeal dated 18th April 2017 is dismissed in its entirety with costs to the respondent
  3. 3.Stay of 30 days

Authorities

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Legislation

  • Evidence ActSections 107 and 109
  • Occupational Safety and Health ActSection 6
  • Road Traffic Act

Cases cited (10)

  • Gitobu Imanyara & 2 others v Attorney General
    (2016) e KLR
  • Abok James Adera t/a J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    (2013) e KLR
  • Selle & Another v Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Ima Hauliers v Mohammed Nyongesa Murende
    (2011) e KLR
  • Nandwa v Kenya Nazi Ltd
    [1988] eKLR
  • Boniface Muthama Kavita vs Canton Manufactures
    (2015) e KLR
  • Gilbert Odhiambo Owuor v Nzoia Sugar Company Limited
    (2012) e KLR
  • Odinga Jacktone Ouma v Moureen Odera
    (2016) e KLR
  • Joseph Henry Ruhui v Attorney General
    (2004) e KLR
  • Butt v. Khan
    (1977) IKAR
On appeal from
Principal Magistrate's Court, Bungoma
Bungoma Civil Suit No. 314 of 2016
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court (appeal transferred to this Court by Order of Justice D.K Kemei dated 24th February 2023)

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, "Ima Hauliers Limited v Samuel (Employment and Labour Relations Appeal 2 of 2023) [2023] KEELRC 1578 (KLR)", Case Analysis (2023). Bungoma High Court Civil Appeal arising from Bungoma Civil Suit No. 314 of 2016 (Memorandum of Appeal dated 18th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1578/eng@2023-06-29

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