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ELRCPartially AllowedNot stated on the face of the judgment (referenced only as an appeal from Milimani Chief Magistrates Court Civil Case No. 632 of 2013)

DPL Festive Limited v Kiio (Appeal 65 of 2023) [2024] KEELRC 2180 (KLR)

High Court of Kenya
6 September 2024
3,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court reduced a worker's injury payout from Kshs 700,000 to Kshs 453,000, holding the employee 10% responsible for his own accident.

What this practically means

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Executive summary

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This is a first appeal to the High Court against the judgment of Hon. I. Orenge, Senior Resident Magistrate, in Milimani Chief Magistrates Court Civil Case No. 632 of 2013, in which the respondent, a casual labourer, was injured when wheat bags fell on him while offloading and arranging them in the appellant's store. The trial court found the appellant 100% liable and awarded Kshs 700,000/= general damages plus Kshs 3,000/= special damages. The appeal was disposed of by written submissions. The court, applying Selle v Associated Motor Boat Company, re-evaluated the evidence. On liability, it held that although the appellant led no evidence of providing protective gear and owed a non-delegable duty of care, the respondent, having done the same work for four years without complaint or injury, bore some responsibility; it apportioned 10% contributory negligence to him. On quantum, applying the principle that an appellate court interferes only where an award is an entirely erroneous estimate or proceeds on wrong principles, the court found the trial magistrate's comparables involved more severe injuries than the respondent's dislocated left knee, blunt chest and shoulder injuries and bruises, with no permanent disability. Guided by a comparable award of Kshs 350,000/= for similar injuries and adjusting for inflation, it substituted Kshs 500,000/= general damages. The appeal partially succeeded: general damages of Kshs 500,000/= less 10% (Kshs 450,000/=) plus Kshs 3,000/= special damages, totalling Kshs 453,000/=. Each party was ordered to bear their own costs. Judgment dated and delivered virtually at Nairobi on September 6, 2024 by Abuodha Nelson Jorum, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate erred in finding the Appellant 100% liable for the accident
  2. 2.Whether the trial magistrate's award of Kshs 700,000/= as general damages to the Respondent was inordinately high

Key legal issues

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01

Whether the trial magistrate erred in finding the Appellant 100% liable for the accident

Holding

Yes in part. The employer's duty of care was established since it failed to tender evidence of providing protective gear, but the respondent, with four years' experience doing the same work, contributed to the accident; 10% contributory negligence was apportioned to him.

Reasoning

The court accepted that the appellant, as employer, owed and breached a duty of care because it called no witnesses and produced no record of providing protective equipment. However, the respondent had offloaded and arranged wheat bags for four years without complaint or injury, and knew the dangers of wrongly arranged bags. The court held that some measure of liability had to be apportioned to the respondent for failing to take care, quantified at 10%.

p. 5
02

Whether the award of Kshs 700,000/= as general damages was inordinately high

Holding

Yes. The trial court's authorities involved more severe injuries than the respondent's; applying comparable awards and adjusting for inflation, general damages were reduced to Kshs 500,000/=.

Reasoning

Applying the principle that an appellate court interferes only where the award is an entirely erroneous estimate, the court compared injuries. The trial court's comparables featured multiple fracture dislocations and severe injuries, whereas the respondent had dislocation of the left knee joint, blunt chest and shoulder injuries and bruises, with no permanent disability. The court adopted a comparable award of Kshs 350,000/= for similar injuries and adjusted for inflation and lingering knee pain to arrive at Kshs 500,000/=.

p. 6

Legal principles established

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  • A first appeal is by way of retrial: the appellate court must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
  • An employer is under a duty to take reasonable care for the safety of his employees in all the circumstances so as not to expose them to unnecessary risk, but the employee also bears some measure of responsibility for their own safety
  • Damages should be determined by the nature and extent of injuries sustained and comparable awards made in the past

Court orders

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  1. 1.Liability apportioned as against the appellant as stated in the final orders
  2. 2.General damages of Kshs 500,000/= substituted for the trial court's award of Kshs 700,000/=, less 10% contributory negligence, i.e. Kshs 450,000/=
  3. 3.Special damages of Kshs 3,000/= awarded, making a total of Kshs 453,000/=
  4. 4.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrates Court
Civil Case No. 632 of 2013
Jurisdiction invoked
First appeal to the High Court from a subordinate court in a civil suit (appellate jurisdiction over the Chief Magistrates Court); no specific provision cited

Relief refused

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Setting aside of the trial court's judgment on liability in its entirety

The court found the employer liable but reduced liability only by 10% for the respondent's contributory negligence rather than exonerating the appellant

p. 5

Appellant's proposed damages of Kshs 280,000/=

The court found the appellant's proposed figure too low given inflation and the comparable authorities

p. 6

Costs

The appeal being partially successful, each party shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Appeal therefore partially succeeds on the following Orders. a. Liability 50: 10 as against the appellant. b. General damages Kshs 500,000/= Less 10% -- Kshs 450,000/= c. Special Damages Kshs 3,000/= Total ..Kshs 453,000/=
p. 6Final orders and disposition
The appeal being partially successful, each party shall bear their own costs.
p. 6Costs
Whereas the larger responsibility lies on the employer to provide a safe working environment, the employee also has some measure of responsibility to ensure their own safety.
p. 5Employer's duty of care and employee's contributory negligence
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
p. 5Interference with quantum on appeal
At common law an employer is under a duty to take reasonable care for the safety of his employees in all the circumstances so as not to expose them to an unnecessary risk.
p. 4Employer's common law duty of care
Some measure of liability for the accident ought therefore to have been apportioned to the respondent and this Court apportions 10% contributory negligence.
p. 5Apportionment of liability

Issues in the judgment

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material

The final orders on liability are internally inconsistent: the body of the judgment apportions 10% contributory negligence (implying 90:10 liability), but the final orders state a different ratio, and the order as printed ('Liability 50: 10') does not add up to 100%.

minor

The calculation of general damages is internally consistent with 10% deduction but inconsistent with the printed liability ratio in the final orders.

minor

The memorandum of appeal is dated April 12, 2017, yet it appeals a judgment delivered on 22nd September, 2017, an apparent date anomaly on the face of the judgment.

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, "DPL Festive Limited v Kiio (Appeal 65 of 2023) [2024] KEELRC 2180 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (referenced only as an appeal from Milimani Chief Magistrates Court Civil Case No. 632 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2180/eng@2024-09-06

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