Prosel Limited v Timothy (Appeal E242 of 2023) [2024] KEELRC 2821 (KLR)
The bottom line
#Kenya's Employment Court upheld an employer's 85% liability and Kshs 253,000 award to an injured welder, confirming employers must provide quality protective gear.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in holding the Appellant 85% liable for the accident
- 2.Whether the trial court erred in its award of quantum of damages (Kshs 250,000/= general damages and Kshs 3,000/= special damages)
Key legal issues
#Whether the trial court erred in apportioning 85% liability to the Appellant employer
The trial magistrate was justified; the employer failed in its supervisory role and in providing quality protective gear, and there was no evidence that the Respondent was negligent since no witness saw the accident occur
The court re-evaluated the evidence and found the Respondent was injured in the course of lawful duties, so the employer owed a duty of care to provide a safe working environment. The employer was to provide quality gear because injury from the grinder was foreseeable. The co-worker and other witnesses did not witness the accident, so there was no proof of the Respondent's negligence. The trial court's findings of fact, based on the credibility of three witnesses, disclosed no misapprehension of evidence or wrong principle warranting appellate interference.
Whether the award of Kshs 250,000/= general damages and Kshs 3,000/= special damages was excessive
The quantum was neither inordinately high nor low; the trial court considered the injuries, medical opinions, comparable awards and inflation, so the appellate court declined to disturb it
Damages are discretionary and an appellate court interferes only where the trial judge acted on a wrong principle or the award is an entirely erroneous estimate. The trial court considered the injuries, doctors' opinions, authorities and inflation. The Appellant's comparables were from 2011-2016 whereas the Respondent's were more recent (2020) awards of Kshs 250,000/= and Kshs 300,000/= for similar injuries. The special damages of Kshs 3,000/= were justified by produced medical records. No wrong principle or erroneous estimate was demonstrated.
Legal principles established
#- On a first appeal, the court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses
- An appellate court will not interfere with an award of damages unless it is so inordinately high or low as to be an entirely erroneous estimate, or the trial judge proceeded on wrong principles or misapprehended the evidence
- An employer is under a common law duty to take reasonable care for the safety of his employees so as not to expose them to unnecessary risk
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The findings of the trial court on liability (85:15 apportionment) and quantum (Kshs 250,000/= general damages and Kshs 3,000/= special damages) are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (Senior Resident Magistrate)
- Not stated in judgment
- Jurisdiction invoked
- First appeal from the subordinate court's judgment in an employer's liability suit
Relief refused
#Allowance of the appeal and dismissal of the suit with costs to the Appellant
The court found no basis to interfere with the trial court's findings on liability or quantum
Reduction of damages to Kshs 60,000/= as proposed by the Appellant
The award of Kshs 250,000/= was reasonable, considering inflation and comparable recent awards
Costs
The appeal was dismissed with costs to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot the Appeal fails for lack of merit. It is hereby dismissed with costs to the Respondent. It is so ordered.
First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
There is therefore no justification to warrant interfering with the Learned Magistrate's findings on fact and this court declines to do so.
the court does not find any reason to disturb the quantum of damages awarded by the trial court as the same was reasonable and not inordinately too low or too high to be varied as compared to the injuries sustained by the Respondent.
The award of special damages of Kshs 3,000/ = was justified since the Respondent produced medical records to show he attended hospital which he could not attend for free he had to pay
Issues in the judgment
#The exact case number of the memorandum of appeal and the case number of the subordinate court suit are not stated in the judgment
The judgment's description of the court and division is only implied by the signature block; the court name is not expressly stated in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prosel Limited v Timothy (Appeal E242 of 2023) [2024] KEELRC 2821 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 7th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2821/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.