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High CourtDismissedHigh Court Civil Appeal (Eldoret) arising from Kapsabet PMCC No. 40 of 2011· [2020] KEHC 3651 (KLR)

Nandi Tea Estates Limited v Musa Igunza

High Court of Kenya
15 May 2020
OSOlga Sewe
4,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Employers are responsible for workplace injuries if they fail to ensure a safe working environment, even if the employee contributed to the accident.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Eldoret (Olga Sewe, J) against the judgment in Kapsabet PMCC No. 40 of 2011, in which the respondent, Musa Igunza, a tea picker employed by the appellant, Nandi Tea Estates Limited, was awarded Kshs. 81,500/= in general and special damages after he slipped and fell into a ditch in the appellant's tea plantation on 23 November 2007. The appellant's five grounds of appeal, collapsed into one, were that there was no proof the appellant dug or created the hole, that the respondent had not proved his case on a balance of probabilities, and that the damages award was excessive. On re-evaluation of the evidence, the court found the respondent's employment and injury established by his pay slip and corroborating medical evidence from Dr. Aluda and Mr. Kilel, unrebutted because the appellant failed to call the respondent's supervisor or produce its attendance register. The appellant's allegation of contributory negligence failed for want of evidence, the burden lying on the party asserting it. The court distinguished Kapsumbai Tea Estate v Duncan Ngugi and followed Eastern Produce (K) Ltd v Nicodemus Ndala on the employer's duty to warn of holes in the plantation. On quantum, the court compared the award with comparable soft-tissue injury awards and found no reason to interfere. The appeal was dismissed with costs on 15 May 2020.

Key legal issues

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01

Whether the respondent proved he was on duty and injured on 23 November 2007

Holding

Yes - the respondent's evidence, corroborated by medical evidence and unrebutted by the appellant, established the injury on a balance of probabilities

Reasoning

The respondent produced his pay slip and testified he fell into a hole while carrying tea leaves. Medical witnesses (Dr. Aluda and Mr. Kilel) corroborated the injuries. The appellant failed to call the respondent's supervisor or produce the attendance register to rebut the claim, so the court found the respondent was on duty as alleged.

p. 3
02

Whether the appellant was liable in negligence

Holding

Yes - the appellant failed to warn of the ditch and did not prove contributory negligence

Reasoning

The respondent's evidence that the ditch was dug by the appellant's employees and lacked warning was unrebutted. The appellant alleged contributory negligence in its defence but led no evidence of it. Following Eastern Produce (K) Ltd v Nicodemus Ndala, the employer knew of the holes and owed a duty to warn employees.

p. 4
03

Whether the award of Kshs. 80,000/= general damages was excessive

Holding

No - the award was within the range of comparable awards for soft tissue injuries and was not disturbed

Reasoning

The appellant offered no comparable authorities. The court reviewed comparable awards (Kshs. 90,000-125,000 for similar soft tissue injuries) and found the award not way off the mark. Special damages of Kshs. 1,500/= were specifically pleaded and proved by receipt.

p. 4

Legal principles established

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  • An employer is generally liable for injuries to employees at the workplace caused by the employer's failure to ensure their safety
  • A party alleging contributory negligence must lead evidence to prove it; the burden of proof lies on the person asserting the facts
  • A document marked for identification but not formally produced as an exhibit has no evidential weight

Court orders

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  1. 1.The appeal fails and is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Evidence ActSection 109
  • Evidence ActSection 112

Cases cited (13)

  • Kapsumbai Tea Estate vs. Duncan Ngugi
    High Court Civil Appeal No. 110 of 2012; [2015] eKLR

    Distinguished - there no medical evidence of injuries was availed and the employer called the supervisor and a nurse

  • Timsales Ltd vs. Andrew Omoori Nyangeri
    High Court Civil Appeal No. 184 of 2009
  • Eastern Produce (K) Limited vs. Nicodemus Ndala
    Eldoret High Court Civil Appeal No. 96 of 2010

    Employer owed duty of care breached by failure to cover a hole in tea plantation, exposing a tea plucker to danger

  • Joseph Henry Ruhui vs. Attorney General

    Test for appellate interference with damages: award must be inordinately high or low, wrong principles, or misapprehension of evidence

  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    First appeal is by way of retrial; court re-evaluates evidence while making allowance for not seeing witnesses

  • Kenneth Nyaga Mwige vs. Austin Kiguta & 2 Others
    [2015] eKLR

    A document marked for identification but not formally produced as an exhibit has no evidential weight

  • Purity Wambui Muriithi vs. Highlands Mineral Water Co. Limited
    [2015] eKLR

    General rule that employer is liable for workplace injuries resulting from failure to ensure employee safety

  • H. West & Son Ltd vs. Shephard
    [1964] AC 326

    Appellate tribunal should have regard to the range of current awards and not dismiss an award merely because it differs from its own assessment

  • Mutinda Matheka vs. Gulam Yusuf
    HCCC No. 752 of 1993

    Factors in assessing damages: nature and extent of injuries, recuperation period, residual disabilities, age, inflation

  • Stanley Maore vs. Geoffrey Mwenda
    [2004] eKLR

    Comparable injuries should be compensated by comparable awards

  • Ndungu Dennis vs. Ann Wangari Ndirangu & Another
    [2018] eKLR

    Comparable award: Kshs. 300,000 for soft tissue injuries reduced to Kshs. 100,000

  • Godwin Ireri vs. Franklin Gitonga
    [2018] eKLR

    Comparable award: Kshs. 300,000 reduced to Kshs. 90,000

  • Maimuna Kilungya vs. Motrex Transporters Ltd
    [2019] eKLR

    Comparable award: Kshs. 100,000 enhanced to Kshs. 125,000 on appeal

On appeal from
Principal Magistrate's Court, Kapsabet
PMCC No. 40 of 2011
Jurisdiction invoked
First appeal from the Principal Magistrate's Court (appellate jurisdiction of the High Court over subordinate courts)

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, "Nandi Tea Estates Limited v Musa Igunza", Case Analysis (2020). High Court Civil Appeal (Eldoret) arising from Kapsabet PMCC No. 40 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/3651/eng@2020-05-15

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