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MagistratePartially AllowedNot stated in the judgment (plaint dated 23rd March 2018)· [2024] KEMC 84 (KLR)

Munyanya v Vertex Builders Limited (Civil Suit 3099 of 2018) [2024] KEMC 84 (KLR)

Chief Magistrate's Court at Milimani
21 June 2024
RMRawlings Liluma Musiega
1,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer was found 100% liable for a worker's injury because it failed to present any evidence in its defence at trial.

What this practically means

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Executive summary

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The plaintiff, a metal fixer technician employed by the defendant company, sued by plaint dated 23rd March 2018 seeking general damages, special damages of Kshs 3,000/=, costs and interest for injuries sustained on or about 7th March 2018 when a folding pipe broke while he was setting and fixing metallic rods, releasing a metal bar that struck the back of his lower skull, leaving him with a stiff neck. He pleaded negligence against the employer; the defence denied liability and alleged contributory negligence. At the hearing on 7th March 2024, Dr George Kungu Mwaura (PW1) produced a medical report confirming severe soft tissue injuries with 10% permanent incapacity, and the plaintiff (PW2) adopted his witness statement. The defendant called no witnesses. Relying on section 107 of the Evidence Act and the Muriga and Motex Knitwear line of authority, the court held that the unchallenged plaintiff evidence established the defendant's liability at 100%. On quantum, applying the comparable-awards principle and guided by the plaintiff's three cited authorities of Kshs 300,000-350,000/=, and considering inflation, the injuries, treatment and passage of time, the court awarded Kshs 400,000/= general damages (less than the Kshs 500,000/= urged) and Kshs 2,000/= special damages supported by receipts. The plaintiff was awarded costs and interest. Judgment delivered at Milimani on 21st June 2024.

Key legal issues

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01

Liability for the workplace accident

Holding

The defendant was found 100% liable; the defendant's failure to call any witnesses meant the defence remained unsubstantiated and the plaintiff's evidence stood unchallenged

Reasoning

Applying section 107 of the Evidence Act, the burden lay on the plaintiff. However, the defendant, despite denying liability and pleading contributory negligence, called no witnesses. Following the Muriga and Motex Knitwear authorities, unchallenged plaintiff evidence is to be believed and unsubstantiated defence allegations are not evidence. The court therefore found the defendant fully liable for the accident.

p. 3
02

Quantum of general damages for severe soft tissue injuries with 10% permanent incapacity

Holding

General damages of Kshs 400,000/= awarded, guided by comparable awards of Kshs 300,000-350,000/= cited by the plaintiff, adjusted for inflation and the 10% permanent incapacity

Reasoning

The court applied the principle that comparable injuries should attract comparable awards. Dr Mwaura opined the plaintiff suffered severe soft tissue injuries with 10% permanent incapacity. Considering inflation, the nature of treatment, passage of time, and the three comparable authorities cited, the court held Kshs 400,000/= reasonable, awarding less than the Kshs 500,000/= urged in submissions.

p. 3

Legal principles established

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  • A party who desires a court to give judgment on asserted facts must prove those facts (evidentiary burden of proof)
  • Where a defendant does not adduce evidence, the plaintiff's unchallenged evidence is to be believed, as mere allegations by the defence are not evidence
  • Failure by a defendant to call witnesses leaves the statement of defence unsubstantiated and the plaintiff's case unchallenged
  • Comparable injuries should as far as possible be compensated by comparable awards to maintain consistency in awards

Court orders

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  1. 1.The defendants are found 100% liable for the accident
  2. 2.General damages of Kshs 400,000/= awarded to the plaintiff
  3. 3.Special damages of Kshs 2,000/= awarded (receipts produced)
  4. 4.Costs of the suit awarded to the plaintiff
  5. 5.Interest on the award granted to the plaintiff

Authorities

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Legislation

  • Evidence Act (Cap 80) Laws of KenyaSection 107

Cases cited (6)

  • Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra and Another vs. Raju Govindji
    HCCC No. 548 of 1998
  • Kitale Hauliers Limited versus Winston Wanyonyi Lugulu
    Bungoma HCCA No. 106 of 2011
  • Robinson Njoroge versus Daniel Ombasa
    Naivasha HCCA No. 64 of 2018
  • Francis Ochieng & another versus Francis Kajimba
    Kisii HCCA No. 33 of 2014
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the plaintiff's suit in negligence/employer's liability

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, "Munyanya v Vertex Builders Limited (Civil Suit 3099 of 2018) [2024] KEMC 84 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 23rd March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/84/eng@2024-06-21

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