Mwanthi v Mbwana Construction Co Ltd
The bottom line
#A Kenyan court held a main construction contractor liable for a subcontractor worker's injuries despite no direct employment, reducing damages 20% for the worker's own carelessness.
What this practically means
#Executive summary
#Key legal issues
#Test for master and servant relationship
The relationship is a question of fact; control by the alleged master is the test, and the plaintiff was not expressly employed by the 1st defendant
The court adopted Halsbury's statement that the relation imports power to direct both the work and the manner of its doing, and the control test from Hill v Birket via Blackburn J in R v Negas. On the evidence, the plaintiff was admittedly employed by the 2nd defendant, so no express employment by the 1st defendant could be found.
Liability of a main contractor for negligence of an independent contractor / sub-contractor's employee
Delegation does not absolve the main contractor; the 1st defendant remained liable under the principle in Selle v Associated Motor Boat Co Ltd
Applying Sir Clement Lestang VP's statement in Selle, where a person delegates a task to another, not a servant, to do something for his benefit or joint benefit, the employer is liable for negligence in the performance of that task. The sub-contracted work was for the ultimate benefit of the 1st defendant.
Negligence and duty of care in site safety
Slipping on wet cement was a foreseeable risk; precautions should have been taken by the 1st defendant in charge of the entire structure, engaging Donoghue v Stevenson duty of care
The court held the employer negligent in assigning the plaintiff to work near an unprotected edge where he could fall, and that adequate precautions for workers moving heavy material on wet slippery surfaces were not taken. Contributory negligence of 20% was fixed against the plaintiff.
Quantum of general damages
Kshs 93,000/= awarded for pain, suffering and loss of amenities, apportioned among the injuries, reduced by 20% contributory negligence
The court used comparable awards in Rashid M Bakari and Benson Syala Kilonzo, noting the plaintiff here had multiple fractures but had recovered remarkably, and itemised the award: Ksh 50,000 for the compression fracture, Ksh 20,000 each for the calcaneum and colles fractures, and Ksh 3,000 for ankle wounds.
Legal principles established
#- The existence of a master and servant relationship is a question of fact, tested by whether the alleged servant was under the control of, or bound to obey the orders of, the alleged master
- An employer who delegates a task to an agent or independent contractor remains liable for that person's negligence in performing the task for his benefit
Court orders
#- 1.Judgment entered for the plaintiff against the defendants jointly and severally for Shs 72,400/= with interest and costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court in a personal injuries claim (no constitutional or statutory provision expressly invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Patrick Omutere v Accurate Steel Mills Limited[2019] KEHC 499 (KLR)29 Nov 2019
- MAKARIO MAKONE MONYANCHA v VERSUSGEORGE MOKUA MAMBOLEO & another[2012] KEHC 2288 (KLR)21 Sept 2012
Cite this brief
#Cite this brief
Caselaw, "Mwanthi v Mbwana Construction Co Ltd", Case Analysis (1991). Civil Case No 626 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/1991/24/eng@1991-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.