Abukuse v Mahee Flowers Limited (Civil Suit 121 of 2015) [2016] KEMC 11 (KLR)
The bottom line
#A Kenyan court held a flower farm 75% liable for a worker's injury and cut his payout because some expenses were never formally claimed in the pleadings.
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 31.10.2013
- 2.Whether the defendant was liable in negligence for the injuries, and whether the plaintiff contributed by his own negligence
- 3.Quantum of general damages for pain and suffering, if awardable
- 4.Whether the special damages claimed were pleaded and specifically proved
Key legal issues
#Whether the defendant's pleading admitted the occurrence of the accident
By pleading 'Save that an accident occurred at the time and place alleged', the defendant admitted that the plaintiff was involved in an accident on 31.10.2013 while on duty; coupled with unchallenged medical evidence, the plaintiff was found to have been injured on duty.
The court read paragraph 5 of the Statement of Defence with the Plaint and Reply and found a serious admission that the accident occurred at the time and place alleged. The medical report of Dr Omuyoma, the referral note and hospital records were unchallenged. The omission of the accident from the company's accident register was explained by DW1 as a possible oversight, and the plaintiff was not responsible for making entries, so his credibility could not be questioned.
Whether the employer's reliance on the employee-self-injury authority (Wilson Nyanyu Musigis v Sasini Tea and Coffee) defeated liability
The court distinguished the authority: in the present case the water was carelessly sprinkled and overflowed into the plaintiff's path without a proper drainage system, and the plaintiff was provided with defective gloves; the danger was not of the plaintiff's making.
The court found the cited High Court cases distinguishable because there the claimants manipulated their own tools and injured themselves, whereas here the defendant created the wet surface through overflowing water and failed to provide proper protective devices. The injury from the metal rod on slipping was not foreseeable by the plaintiff, so he did not injure himself in the manner of the cited claimants.
Apportionment of liability between employer and employee
Liability apportioned at 75% to the defendant and 25% to the plaintiff, the plaintiff being minimally liable for failing to take care on the wet surface.
The defendant was substantially liable for failing to keep the working environment safe and free from hazards and for providing defective gloves that could have prevented or mitigated the injury. The plaintiff was minimally liable because, aware the wet surface could be slippery, he was expected to have avoided it or taken some care while stepping onto it.
Quantum of general damages
General damages assessed at Kshs. 330,000 for pain and suffering, adjusted from an award of Kshs. 220,000 made in 2010 in Silphanus Kumbe Murondo for more serious injuries, considering the rise in cost of living.
Both counsels supported the Silphanus Kumbe Murondo award, but the court reduced the comparable figure and uplifted it to Kshs. 330,000 for the plaintiff's less serious injuries (fracture of the 5th metacarpal and soft tissue injuries, classified as harm), applying the principle that general damages compensate rather than punish, taking into account other awards for similar injuries and the time lapse.
Pleading and proof of special damages
Only Kshs. 5,000 for the medical report was both pleaded and proved and was awardable; the doctor's court attendance costs of Kshs. 15,000 were proved but not pleaded, and the Kshs. 2,000 records officer attendance was neither pleaded nor proved.
The court reaffirmed the trite requirement that special damages must be particularly pleaded and specifically proved, quoting the Court of Appeal in Savannah Development Co. Ltd to the effect that the requirement is mandatory and goes to jurisdiction. Attendance costs of witnesses are not awardable as special damages but form part of party and party costs.
Legal principles established
#- Special damages must be both particularly pleaded and specifically proved
- The burden of proof in civil cases lies on each party to prove his claim, on a preponderance of probabilities
- An employer is substantially liable for failing to keep the working environment safe and for providing defective protective devices, while an employee who fails to take care contributes to his own injury
Court orders
#- 1.Judgment entered against the defendant for Kshs. 247,500 being general damages for pain and suffering
- 2.Judgment for Kshs. 3,750 being special damages
- 3.Total award of Kshs. 251,250, subject to apportionment of liability at 75%:25% in favour of the plaintiff
- 4.Costs of the suit awarded to the plaintiff
- 5.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 of the magistrates' court over the plaintiff's tort claim for an industrial accident (no specific constitutional or statutory provision invoked in the judgment)
Relief refused
#Special damages of Kshs. 15,000 for the doctor's court attendance
Proved by PEXH. No. 4 but not pleaded, and attendance costs are awardable as part of party and party costs
Special damages of Kshs. 2,000 for the records officer's attendance
No evidence tendered to prove it
Costs
Costs of the suit awarded 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. 247, 500/=, being general damages for pain and sufiering, and 3750/= being special damages; totalling to KSH. 251, 250/=; costs of the suit and interests on all the sums at court rates.
I do therefore apportion liability at the ratio of 75%:25% in favour of the plaintifi.
I however find the circumstances in the two High Court matters distinguishable from the present ones.
It is however trite law that claims for such special damages must not only be particularly pleaded, but must be specifically proved.
The standard of proof is a preponderance of probabilities.
Issues in the judgment
#The judgment orders judgment for Kshs. 247,500 general damages and Kshs. 3,750 special damages (total Kshs. 251,250), but does not show how these figures relate to the assessed Kshs. 330,000 general damages and the stated 75%:25% apportionment (75% of 330,000 would be 247,500, though the order says the judgment is 'subject to' liability; the arithmetic is only implicit)
The special damages awarded of Kshs. 3,750 is 75% of the pleaded and proved Kshs. 5,000, but the order does not expressly state the apportionment was applied to special damages
The case number of the suit is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abukuse v Mahee Flowers Limited (Civil Suit 121 of 2015) [2016] KEMC 11 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.