Kivyuvi v Wilham (K) Limited (Appeal 112 of 2023) [2024] KEELRC 699 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Liability for workplace injury where the employee removed a stuck box from a machine and was injured
The appellant's act of removing the stuck box himself, despite a maintenance department existing, amounted to a deliberate assumption of risk; the 60% apportionment against him was justified
The court found it uncontested that the respondent had a maintenance department that should have serviced the machine. The appellant took it upon himself to remove the stuck box, claiming he and colleagues knew the machine better. The court viewed this as deliberate assumption of risk, leaving nothing the respondent could have done. The trial magistrate's apportionment of 60% liability was therefore found to be sound.
Scope of appellate interference with quantum of general damages
The award of Kshs 60,000/= was not disturbed; the court found no reason to interfere with either liability or quantum
The appellant argued the award was too low and relied on authorities on when an appellate court may interfere with damages. The court, having considered the trial judgment against the evidence, was persuaded the trial court competently dealt with the dispute and arrived at a just decision, and declined to interfere with the quantum.
Legal principles established
#- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with a trial court's decision merely because it would have decided differently
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the trial court on both liability and quantum is upheld
- On appeal from
- Milimani Chief Magistrates Court
- CMCC No 6145 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court (Selle v Associated Motor Boat Company Limited [1968] E.A 123 principles applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kivyuvi v Wilham (K) Limited (Appeal 112 of 2023) [2024] KEELRC 699 (KLR)", Case Analysis (2024). Appeal from Milimani Chief Magistrates Court CMCC No 6145 of 2013 (number not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/699/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.