Muiruri v Mahee Flowers Limited (Civil Suit 123 of 2015) [2016] KEMC 8 (KLR)
The bottom line
#A Kenyan court held a flower farm employer 80% liable for a worker's toe injury, awarding Kshs. 104,000, but only damages that were both pleaded and proved were recoverable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff was injured while on duty with the defendant on 16.06.2014
- 2.Whether the defendant was liable in negligence for the plaintiff's injuries, or whether the accident was caused by the plaintiff's own negligence
- 3.The applicable quantum of general damages for the soft tissue injury to the left big toe
- 4.Whether the special damages claimed were specifically pleaded and proved
Key legal issues
#Whether the defendant admitted the accident
The defendant's plea that an accident occurred at the time and place alleged amounted to an admission that the plaintiff was injured on duty on 16.06.2014, corroborated by unchallenged medical evidence
Paragraph 5 of the defence admitted an accident at the time and place pleaded. The plaintiff's employment and the injuries treated at Ol Kalou District Hospital were not disputed, and Dr Omuyoma's unchallenged report confirmed them. Absence of an entry in the accident register could have been an oversight since the medical officer, not the plaintiff, made entries.
Distinction of the Mumias Sugar and Mathara Holdings line of cases on employer liability
Those cases were distinguishable because the claimants there injured themselves with tools under their own control, whereas here a trolley carelessly manipulated by a fellow employee injured the plaintiff
In the cited authorities the claimants manipulated their own tools and injured themselves, with full command and control of the operation. Here the plaintiff did not control the trolley, did not directly expose herself to danger, and the injury was not foreseeable by her. The employer nonetheless ought to have kept the working environment free of such dangers.
Apportionment of liability for contributory negligence
Liability apportioned 80% to the defendant and 20% to the plaintiff, the latter having seen the trolley being turned while resting and working in a hurry
The defendant was substantially liable for failing to keep the workplace safe and for not providing gumboots which would have prevented or mitigated the injury. The plaintiff was minimally liable because she saw the trolley being turned while on rest and was working in a hurry to meet her shift target, so she could have avoided or averted the accident with some care.
Quantum of general damages
Kshs. 125,000/= proposed as adequate compensation, the most comparable authority being DWA Estate Limited v Niko Mulaki Katambuka, adjusted for inflation since 2001
Two comparables were cited. The DWA Estate case, involving a soft tissue injury to the big toe attracting Kshs. 50,000/= in 2001, was the most comparable to the present injury; the Eastern Produce injuries were more severe. Factoring inflation over 15 years, an award of Kshs. 125,000/= was opined to be adequate, before application to the final figure awarded.
Proof of special damages
Only the pleaded and proved Kshs. 5,000/= medical report fee was awardable; the unpleaded doctor's attendance fee and unproved records officer's attendance fee were disallowed
Special damages must be specifically pleaded and proved, per the Savannah Development, Jivanji and Kenya Shell authorities and Lord Goddard CJ in Bohham-Carter v Hyde Park Hotel. The Kshs. 5,000/= was both pleaded and proved by PEXH No. 2B; the Kshs. 15,000/= was proved but not pleaded; the Kshs. 2,000/= was neither pleaded nor proved.
Legal principles established
#- Special damages must be both specifically pleaded and specifically proved
- An employer is liable for failing to provide a safe working environment and protective devices such as gumboots where the work exposes employees to foot injury
- General damages are compensatory, not punitive
Court orders
#- 1.Judgment entered against the defendant for Kshs. 100,000/= general damages for pain and suffering
- 2.Kshs. 4,000/= special damages, totalling Kshs. 104,000/=, with costs of the suit and interest on all sums at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over a negligence claim under the Civil Procedure Act and Rules (Order 3 rule 2(d) of the Civil Procedure Rules, 2010 referenced)
Relief refused
#Special damages of Kshs. 15,000/= for the doctor's court attendance
Proved by PEXH No. 2C but not pleaded; attendance costs are awardable as part of party-and-party costs, not special damages
Special damages of Kshs. 2,000/= for the records officer's court attendance
No evidence tendered to prove the claim
Costs
Costs of the suit to the plaintiff, with interests on all sums at court rates
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above findings, I do hereby order that judgment be and is hereby entered against the defendants herein for the sum of Kshs. 100,000/=, being general damages for pain and sufiering, and 4000/= being special damages; totalling to KSH. 104,000/=; costs of the suit and interests on all the sums at court rates.
I do therefore apportion liability at the ratio of 80%:20% in favour of the plaintifi.
The requirement that special damages must be explicitly pleaded and proved is not merely a procedural necessity but is a mandatory legal requirement going to the jurisdiction on the specific issue and an objection by the defendant that a plaintifi haw violated this rule may be taken at any time and even on appeal.
I however find the circumstances in the two High Court matters distinguishable from the present ones.
Such protective device such as gumboots should have mitigated, if not prevent, the injury sustained herein.
Issues in the judgment
#Contradiction on delivery date: paragraph 10 states judgment was moved forward to 06.10.2016, but the disposition is dated 25th August 2016
Contradiction between the apportionment of liability at 80%:20% and the final order entering judgment for the full sums of Kshs. 104,000/= without applying the apportionment; paragraph 30 also references an unexplained consent judgment on liability
The quantum analysis awards Kshs. 125,000/= general damages but the final order awards Kshs. 100,000/= without explaining the reduction
Gender pronouns for the plaintiff switch between 'she' and 'he/him/his' throughout the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muiruri v Mahee Flowers Limited (Civil Suit 123 of 2015) [2016] KEMC 8 (KLR)", Case Analysis (2016). Not stated in the judgment (Plaint dated 10.07.2015, filed 15.07.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.