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ELRCPartially AllowedCivil Appeal No 147 of 2014· [2025] KEELRC 1264 (KLR)

Eldoret Grains Limited v Simiyu (Civil Appeal 147 of 2014) [2025] KEELRC 1264 (KLR)

Environment and Land Court
30 April 2025
3,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut a worker's injury payout from Kshs. 100,000 to 40,000 but confirmed the employer was 90% to blame for not providing safety boots.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Chief Magistrate's Court at Eldoret (Hon. P. Mbulika, RM) of 5th December 2014 in CMCC No. 676 of 2013, in which the Respondent, injured on 17th September 2010 while offloading metal beams in the course of his employment, was awarded general damages of Kshs. 100,000 less 10% contribution and special damages of Kshs. 1,500, with the Appellant found 90% liable. The Appellant challenged the finding on liability, alleged the suit was time barred under the Limitation of Actions Act, and contended the quantum was inordinately high, proposing Kshs. 30,000. The court, Maureen Onyango J, framed three issues: limitation, liability and quantum. On limitation, she noted the ex parte order of 3rd October 2013 in Miscellaneous Civil Application No. 68 of 2013 granting leave to file suit out of time and, applying Rosemary Wanjiru Kungu, held there was no reason to fault that order, the Appellant not having denied that settlement negotiations had occurred. On liability, she held the Appellant breached its duty of care by failing to provide gumboots, confirmed by DW1 in cross-examination, and upheld the 90% apportionment. On quantum, applying Kemfro Africa and taking her cue from Timsales Limited, she found the award on the higher side, distinguished Sokoro Saw Mills as inapposite and dated, and substituted an award of Kshs. 40,000 as general damages, upholding the special damages award. Each party bears its own costs of the appeal; the lower court's costs order remains undisturbed. The appeal thus succeeded only on quantum.

Key legal issues

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01

Whether the suit was statute barred

Holding

The suit was properly filed out of time pursuant to an ex parte order of leave granted under sections 27 and 28 of the Limitation of Actions Act; the Appellant did not deny that negotiations for settlement had taken place

Reasoning

The Respondent produced an order granting leave to file suit out of time, issued on 3rd October 2013 in Miscellaneous Civil Application No. 68 of 2013. The trial court had found the grounds in support satisfactory under section 28(2) of the Limitation of Actions Act. Although the order was not in the Record of Appeal, the court perused the trial court file and confirmed its existence, and there was no evidence to displace the reasons given, including negotiations between the parties.

p. 6
02

Whether liability at 90% was properly determined

Holding

Yes - the finding that the Appellant was 90% liable was well founded, as the employer failed to provide gumboots and a safe system of work

Reasoning

The Respondent testified he was injured while offloading metal beams when a colleague pushed a beam from behind without warning, and that he had not been issued gumboots. DW1, the supervisor, confirmed in cross-examination that the Respondent had no gumboots. The employer therefore breached its duty of care to provide appropriate safety gear, and the trial court's apportionment of 90% liability was upheld.

p. 6
03

Whether the award of general damages was inordinately high

Holding

The award of Kshs. 100,000 was on the higher side and was reduced to Kshs. 40,000

Reasoning

Applying the Kemfro Africa principles, the court found the award justifiable for interference. Guided by Timsales Limited v Penina Achieng Omondi, where Kshs. 60,000 was awarded for more severe injuries, and noting that the Sokoro Saw Mills case was not very relevant as the injuries differed and it was too old given changes in the cost of living, the court held Kshs. 40,000 reasonable compensation for a healed soft tissue injury, guided by the First Schedule to the Work Injury Benefits Act.

p. 7
04

Special damages

Holding

The award of Kshs. 1,500 in special damages was upheld as the Appellant did not appeal against it

Reasoning

The Appellant did not appeal against the award on special damages. Accordingly the court upheld the decision of the trial court in respect of special damages while setting aside the general damages award.

p. 7

Legal principles established

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  • An appellate court interferes 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 so inordinately low or high that it must be a wholly erroneous estimate
  • Where a defendant or its representative leads a claimant to believe a claim is capable of settlement and the claimant refrains from filing suit until limitation has run, that may constitute a good ground for extending time under section 27
  • An employer owes a duty of care to provide employees with appropriate safety gear

Court orders

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  1. 1.The finding of the trial court on liability (90% against the Appellant) is upheld
  2. 2.The award of general damages of Kshs. 100,000 is set aside and substituted with an award of Kshs. 40,000
  3. 3.The decision of the trial court in respect of special damages of Kshs. 1,500 is upheld
  4. 4.Each party shall bear its costs of the appeal
  5. 5.The award of costs in the lower court shall remain undisturbed

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSections 27 and 28 (including section 28(2))
  • Occupational Safety and Health Act, 2007Sections 2 and 6
  • Work Injury Benefits ActFirst Schedule

Cases cited (6)

  • Selle and Another v Associated Motor Board Company and Others
    [1968] EA 123
  • Stat Pack Industries v James Mbithi Munyao
    HCCA NO. 152 of 2003
  • Sokoro Saw Mills Limited v Grace Nduta Ndungu
    (2006) eKLR
  • Rosemary Wanjiru Kungu vs Elijah Macharia Githinji & Autoplus Used Parts Trading Company
    Nairobi High Court Civil Case No. 145 of 2010 eKLR
  • Kemfro Africa limited v Lubia & Another (No.2)
    [1987] KLR 30
  • Timsales Limited v Penina Achieng Omondi
    [2011] eKLR
On appeal from
Chief Magistrate's Court at Eldoret
CMCC No. 676 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the Chief Magistrate's Court (Employment and Labour Relations Court appeal against a personal injury suit filed in the magistrates' court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eldoret Grains Limited v Simiyu (Civil Appeal 147 of 2014) [2025] KEELRC 1264 (KLR)", Case Analysis (2025). Civil Appeal No 147 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1264/eng@2025-04-30

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