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High CourtPartially Allowed

Appellant v Respondent (Employer's Liability Appeal)

High Court of Kenya
14 November 2017
729 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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If your employer fails to provide safety gear, they are liable for your injuries, but the court will review the final damage award based on medical evidence.

What this practically means

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Executive summary

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The respondent was injured in the course of employment with the appellant and sued for damages, alleging breach of contractual obligations in assigning duties without due care and failure to provide a safe working environment, implements and protective devices. The appellant denied liability, pleaded contributory negligence, and relied on res ipsa loquitor and volenti non fit injuria. The trial court found the appellant 100% liable, noting no belt or boots had been supplied, and awarded Kshs. 320,000/= general damages plus Kshs. 2,000/= special damages. On appeal, the appellant faulted the liability finding, the standard of proof of injury, and the quantum as inordinate. Mbogholi Msagha J made an independent assessment of the brief record, affirmed the duty of care and the finding that the appellant was wholly to blame, as the respondent had been exposed to danger without proper protective gear. On quantum, two contradictory medical reports were produced: Dr. S.K. Mwaura found a fracture to the navicular bone confirmed by X-ray, while Dr. R.P. Shah reported the original X-rays showed no fracture and 0% permanent disability. Guided by the conflicting medical evidence, the court reduced general damages from Kshs. 320,000/= to Kshs. 200,000/=, holding the appeal successful only to that extent. Final judgment was entered for the respondent for Kshs. 200,000/= general damages plus Kshs. 4,000/= special damages, with costs of the suit and interest at court rates from the date of the lower court judgment.

Key legal issues

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01

Employer's liability for failure to provide protective gear

Holding

The appellant was wholly liable for the respondent's injuries

Reasoning

The court made an independent assessment of the brief evidence and found the respondent was exposed to danger without proper protective gear, establishing breach of the duty of care owed by the employer in the performance of his duties. The trial court's 100% liability finding was affirmed.

p. 2
02

Assessment of general damages where medical reports conflict

Holding

The award of Kshs. 320,000/= was reduced to Kshs. 200,000/= because the two medical reports contradicted each other on whether a fracture occurred

Reasoning

Dr. S.K. Mwaura's report found a fracture to the navicular bone confirmed by X-ray, while Dr. R.P. Shah's report stated the original X-rays showed no fracture and 0% permanent disability. The trial court had struck a balance; the High Court, facing the same dilemma, interfered with quantum.

p. 3

Legal principles established

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  • An employer owes a duty of care to an employee exposed to danger without proper protective gear, and is liable for resulting injuries
  • Conflicting medical reports justify interference with an award of general damages made by the trial court

Court orders

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  1. 1.The award of general damages of Kshs. 320,000/= reduced to Kshs. 200,000/=
  2. 2.Judgment in favour of the respondent against the appellant in the sum of Kshs. 200,000/= general damages plus Kshs. 4,000/= special damages
  3. 3.The respondent to have the costs of the suit and interest at court rates calculated from the date of the lower court judgment
On appeal from
Magistrates' Court (trial court)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in an employer's liability suit (not expressly stated in 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, "Appellant v Respondent (Employer's Liability Appeal)", Case Analysis (2017). . Source: 

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