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ELRCPartially AllowedAppeal from PMCC No. 498 of 2013 (Mavoko)· [2025] KEELRC 1151 (KLR)

SS Mehta & Sons v Kiminza (Employment and Labour Relations Appeal 8 of 2020) [2025] KEELRC 1151 (KLR)

Environment and Land Court? - High Court (first appellate court) (judgment text does not state court name)
4 April 2025
MOMaureen Onyango
3,627 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company that blames someone else for an injury must formally serve that third party, or it stays fully liable on appeal.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Principal Magistrate's Court at Mavoko (Hon. E.K. Too, SRM) delivered on 16th March 2016 in PMCC No. 498 of 2013, in which the Respondent, injured while working at a construction site, recovered general damages of Kshs. 150,000 (subject to 20% contribution), special damages of Kshs. 2,000 and costs, with the Appellant found 80% liable. The Appellant challenged both liability and quantum, contending that the trial court failed to apportion liability to the Third Party, Efil Enterprises Limited, which had been enjoined but never served with hearing notices, and that the award was excessive. The appeal was disposed of by written submissions. On liability, the court traced the record and found the third-party case 'was neither started nor closed', that there was no evidence the third party was served, and that it was the Appellant's duty as the party blaming the third party to ensure service. The trial magistrate's findings on liability were upheld and that limb of the appeal dismissed. On quantum, applying the Kemfro Africa principles and comparing Timsales Limited v Penina Achieng Omondi, the court found the injury (soft tissue injury to the left index finger) minor and the award of Kshs. 150,000 on the higher scale, substituting Kshs. 50,000. The 20% contribution and special damages were upheld. The Respondent retained costs of the suit with interest from 16th March 2016; there were no orders as to costs in the appeal, each party bearing its own costs. Judgment delivered virtually on 4th April 2025 by Maureen Onyango, Judge.

Key legal issues

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01

Failure to apportion liability to the Third Party

Holding

The appeal on liability fails. The third-party proceedings were never prosecuted; no evidence showed service of hearing notices on the third party, and the duty to serve lay on the Appellant, not the Respondent.

Reasoning

The court traced the record: leave to issue third-party notice was granted on 5th March 2014, the notice was said to have been served, but the third party never entered appearance. The record showed the third party absent at directions, and liability between Appellant and third party was to be determined at the main hearing, which proceeded without them. The court held the third-party case 'was neither started nor closed' and that liability against the third party could not be found without its participation.

p. 5
02

Quantum of general damages

Holding

The award of Kshs. 150,000 was too high for a minor soft tissue injury to the left index finger; substituted with Kshs. 50,000, applying comparable awards and the Kemfro Africa principles.

Reasoning

Applying Kemfro Africa v Lubia, the court re-evaluated the evidence of PW2 showing soft tissue injury to the left index finger and compared the award with Timsales Limited v Penina Achieng Omondi, where Kshs. 60,000 was awarded for a deep cut wound and severe soft tissue injuries. It found the injury minor and the award on the higher scale, concluding Kshs. 50,000 was reasonable and commensurate.

p. 7

Legal principles established

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  • A defendant who blames a third party bears the onus of ensuring the third party is properly served with hearing notices; without the third party's participation, no liability can be found against it.
  • An appellate court may interfere with an award of damages where the trial judge took into account an irrelevant factor or left out a relevant one, or where the amount is inordinately low or high such that it is a wholly erroneous estimate.

Court orders

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  1. 1.The appeal on liability as between the Appellant and the third party is dismissed; the trial court's finding on liability is upheld, including the 20% contribution by the Respondent.
  2. 2.The award of general damages of Kshs. 150,000 is set aside and substituted with Kshs. 50,000.
  3. 3.The award on special damages of Kshs. 2,000 is upheld.
  4. 4.The Respondent shall have costs of the suit and interest from the date of judgment on 16th March 2016.
  5. 5.There shall be no orders as to costs in the appeal; each party shall bear its own costs in the appeal.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 rules 15-22 (including rules 15 and 17)
  • Evidence ActSections 107 and 109

Cases cited (9)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi & Another
    (2014) eKLR
  • Anne Wambui Nderitu v Joseph Kiprono Ropkoi & Another
    (2004) eKLR
  • John Ndungu v Ochieng
    (2015) eKLR
  • Eastern Produce (K) Limited v Edith Kavere
    (2019) eKLR
  • Butt v Khan
    (1981) KLR
  • Selle and another v Associated Motor Board Company and Others
    [1968] EA 123
  • Kenya Commercial Bank v Suntra Investment Bank Ltd
    (2015) eKLR
  • Kemfro Africa limited -vs- Lubia & Another (No.2)
    [1987] KLR 30
  • Timsales Limited v Penina Achieng Omondi
    [2011] eKLR
On appeal from
Principal Magistrate's Court at Mavoko
PMCC No. 498 of 2013
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's court (judgment does not cite the enabling provision)

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, "SS Mehta & Sons v Kiminza (Employment and Labour Relations Appeal 8 of 2020) [2025] KEELRC 1151 (KLR)", Case Analysis (2025). Appeal from PMCC No. 498 of 2013 (Mavoko). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1151/eng@2025-04-04

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