Sukari Industries Ltd v Akina (Suing on her own behalf and on behalf of the Estate of Felix Omondi Akina (Deceased) (Appeal E055 of 2023) [2024] KEELRC 12 (KLR)
The bottom line
#Kenya's Employment Court cut a widow's compensation by 40% because the deceased worker was partly to blame for speeding before his fatal tractor accident.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the trial court over the work-injury claim
The jurisdictional challenge failed; it was not pleaded before the trial court, was abandoned before the High Court, and the claim was lodged in 2019 when the Work Injury Benefits Act's relevant provisions had been declared unconstitutional.
The Appellant's amended statement of defence admitted the trial court's jurisdiction and no submissions on jurisdiction were made below. The Appellant also abandoned the jurisdictional challenge before the High Court. Further, the cause was filed in 2019 when the High Court had declared the relevant WIBA provisions inconsistent with the Constitution, so the Director of Occupational Safety and Health route was not the operative legal framework.
Apportionment of liability for the accident
The trial court's finding of 100% liability against the employer was not supported by the evidence; the deceased's high-speed driving contributed to the accident and he was assigned 40% liability, leaving the Appellant 60% liable.
An eyewitness testified that the tractor was being driven at very high speed before it overturned and a tyre flew off, but the trial magistrate gave this no consideration. The deceased chose to drive at speed. However, no witness testified to the tractor's mechanical soundness, and tyres do not ordinarily fly off where regular checks are done, so the employer also bore responsibility.
The multiplicand of Kshs 15,729/-
The multiplicand was properly computed from the proven daily wage of Kshs 524/- multiplied by 30 days; no error was found.
Evidence before the trial court established the deceased earned a daily wage of Kshs 524/-. The magistrate multiplied this by 30 days to arrive at a monthly figure of Kshs 15,729/-. The Court found no error in that arithmetic and rejected the Appellant's contention that the wage was unproven.
The multiplier of 28 years
Although the trial magistrate relied on a life expectancy figure unsupported by evidence, the Court declined to disturb the multiplier given the deceased's age of 35 years.
The trial magistrate adopted an age expectancy of 62 to 63 years without evidence of that figure being placed before him. Nonetheless, the Court considered the deceased's age at death (35 years) and exercised its discretion not to interfere with the multiplier of 28 years.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions reached by the trial court should stand, giving reasons either way
- An employee driving an employer's tractor at high speed, where speed contributed to the accident, should shoulder a share of liability even where the employer's machinery was defective
- An appellate court will not fault a trial court for not raising jurisdiction suo moto where neither party pleaded or submitted on jurisdiction
Court orders
#- 1.The findings on liability are set aside and substituted with a finding that the deceased was liable 40% for the accident
- 2.The award of Kshs 3,743,296/- is discounted by 40%, and the Respondent is awarded Kshs 2,245,977/-
- 3.Each party to bear own costs of the Appeal
- On appeal from
- Senior Principal Magistrate's Court (subordinate court)
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Magistrates' Court in employment-related (work injury) causes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sukari Industries Ltd v Akina (Suing on her own behalf and on behalf of the Estate of Felix Omondi Akina (Deceased) (Appeal E055 of 2023) [2024] KEELRC 12 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 16 October 2023 (arising from Subordinate Court suit decided 24 February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/12/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.