Bob Morgan Services Ltd & Another v Protus Mwalati

High Court of Kenya

21 January 2020

JSJ.K. Sergon

1,933 words in judgment

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The bottom line

Your employer's failure to provide basic safety measures, like CCTV, can lead to full liability for work-related injuries.

What this practically means

Executive summary

The Respondent, a security guard employed by the 1st Appellant to guard premises of the 2nd Appellant, was shot in the chest by unknown assailants on 27/4/2014 at the Lower Kabete Road entrance. He sued in the Chief Magistrate's Court, Nairobi, and Hon. E. Wanjala, Senior Resident Magistrate, entered judgment against the Appellants for Ksh. 1,003,000 with 100% liability. The Appellants appealed on eleven grounds, consolidated into three: jurisdiction under the Work Injury Benefits Act (WIBA), liability, and quantum. On jurisdiction, the Appellants argued WIBA (sections 10 and 26) provided the exclusive remedy through the employer and the Director of Occupational Safety and Health Services, citing Longonot Horticultural Ltd v James Wakaba Maina. The court held WIBA did not expressly oust the courts' jurisdiction and dismissed that ground. On liability, the court re-evaluated the evidence: the Respondent proved there were no CCTV cameras and no proper supervision, while DW1 failed to summon any supervisor to testify. The finding of 100% liability was upheld and the appeal on liability dismissed. On quantum, comparing Wanainchi Marine Products (Ksh. 1,000,000 for more severe gunshot injuries) and Securex Agencies (Ksh. 250,000), the court found the Ksh. 1,000,000 general damages award excessive and substituted Ksh. 650,000. Special damages of Ksh. 3,000 were unaffected. Each party was ordered to bear its own costs on appeal; the Respondent retained costs of the suit, with interest on the substituted award at court rates from the date of the trial judgment.

Key legal issues

Jurisdiction under WIBA

Holding

The trial court had jurisdiction; WIBA did not expressly oust the courts' jurisdiction over work injury claims

Reasoning

The Appellants argued WIBA (sections 10 and 26) provided the exclusive first course of redress through the employer and the Director of Occupational Safety and Health Services, relying on Longonot Horticultural Ltd v James Wakaba Maina. The Respondent maintained the suit was founded on breach of contract of employment and occupiers' liability. The court agreed with the trial magistrate that no provision excludes the court's jurisdiction.

p. 2

Liability for injury caused by third-party assailants

Holding

Appellants 100% liable; negligence proved by absence of CCTV cameras and lack of proper supervision

Reasoning

The Respondent testified there were no alarm or CCTV cameras and that he was not adequately trained or supervised. DW1 asserted sufficient training and supervision but failed to summon any supervisor to testify. The court found the Respondent proved the pleaded particulars of negligence, sustaining the trial magistrate's finding of sole liability.

p. 3

Quantum

Holding

Award of Ksh. 1,000,000 general damages excessive; reduced to Ksh. 650,000

Reasoning

The court compared the award with Wanainchi Marine Products (Ksh. 1,000,000 for three gunshot injuries including lung collapse) and Securex Agencies (Ksh. 250,000 for gunshot wounds to thighs and pelvis). Injuries here were haemopneumothorax and fracture of the left 9th rib. The court found the trial award excessive and not commensurate with comparable awards.

p. 3

Legal principles established

WIBA did not expressly oust the jurisdiction of courts to entertain work injury claims founded on breach of contract of employment and common law duty

Court orders

1.Appeal as against liability dismissed
2.Award of Ksh. 1,000,000 general damages set aside and substituted with Ksh. 650,000
3.Special damages of Ksh. 3,000 to remain as awarded
4.Each party to meet its own costs on appeal
5.Respondent to have costs of the suit
6.Ksh. 650,000 to attract interest at court rates from the date of judgment of the trial court to the date of full payment

On appeal from: Chief Magistrate's Court, Nairobi; Not stated in the judgment
Jurisdiction invoked: First appeal from the Chief Magistrate's Court (appellate jurisdiction over subordinate court civil suits)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Bob Morgan Services Ltd & Another v Protus Mwalati", Case Analysis (2020). . Source:

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