(Being an appeal from the judgment of Hon. C.A Ogweno, delivered on 5 th September 2024 in Milimani MCCC 5399 of 2016)
JUDGMENT
INTRODUCTION
The 1 st respondent herein instituted a suit in the lower court to wit Milimani MCCC 5399 of 2016, seeking judgment against the appellant and the 2 nd respondent for:
i. General damages for;
• Pain, suffering and loss of amenities of life
• Cost of artificial limbs over the years
• Future loss or diminished earning capacity or loss of future earnings
ii. Special damages of Kshs. 75,320
The 1 st respondent’s suit against the appellant and the 2 nd respondent was premised on the grounds that on 11/8/2015 while serving as an employee of either the appellant or the 2 nd respondent, he got involved in an accident which he blamed the appellant or the 2 nd respondent for having caused by: -
i. Failing to keep any proper look out or regard to his safety
ii. Pressing on the hydraulic machine before or without ensuring his leg was not entrapped
iii. Pressing scrap metal together with his leg
iv. Failing to provide him with a safe place of work or safe means of work
v. Employing a careless or incompetent person
vi. Failing to provide him with sufficient working area or littering the workplace with scrap
vii. Failing to provide industrial boots or safe footwear
viii. Failing to sufficiently light up the work place
ix. Subjecting him to work injury
The appellant filed a statement of defence, dated 26/5/2017 and filed in court on 30 th May, 2017, in which it averred/contended that it had no legal capacity to be sued; that it neither had knowledge nor was it privy to any relationship between it and the 1 st respondent; that it did not owe any common law or statutory duty to the 1 st respondent and that if the 1 st respondent sustained any injuries, the injuries were occasioned by negligence on the part of the 1 st respondent by: -
i. Failing to be on proper look out in the circumstances of his work
ii. Failing to prevent harm from befalling him
iii. Failing to have any sufficient regard for his own safety at work
iv. Failing to have regard to the danger apparent at his place of work
v. Failing to exercise the skill and care expected of him
vi. Causing the accident
vii. Failing to heed to precautionary measures prescribed to him and his work mates while at work
viii. Failing to wear protective gear offered to him thus being in contravention of his instructions for safety
ix. Exposing himself to danger
The appellant further contended that the 1 st respondent had been given warning and frequent advisories by his supervisors concerning the imminent danger; that the 1 st respondent willingly accepted the risk associated with the work and that, on account of that acceptance he is not entitled to the reliefs sought
When the case came up for hearing, the plaintiff rehashed his pleaded case and maintained that he did not know who between the appellant and the 2 nd respondent was his employer
Concerning the circumstances surrounding the occurrence of the accident which resulted in his injuries, loss and damage, the 1 st respondent denied the appellant and the 2 nd respondent’s contention that he exposed himself to injury. He informed the court that he switched of the machine; that he was with one Frank Mwangi at the time and that the machine operator, Peter Mwangi had stepped out.
On cross examination by counsel for the appellant, the 1 st respondent admitted that the machine was operated by particular people; that he would arrange bundles in the machine using hands and that he would step on the materials to align them on instructions.
The learned trial magistrate determined that the 1 st respondent had proved his case against the appellant on balance of probabilities and proceeded to enter judgment in his favour as follows: -
a. Liability at 90:10% in favour of the 1 st respondent (plaintiff) against the appellant (2 nd defendant);
b. General damages at Kshs. 2,000,000/- less 10% contribution…
c. Cost of artificial limb at Kshs. 960,000/-
d. General damages for diminished earning capacity at Kshs. 500,000/- less 10% contribution thus Kshs. 450,000/- (shall not attract interest);
e. Special interest Kshs. 2000/-;
f. Net total Kshs. 3,212,000/-
g. Costs if the suit;
h. Interest on (b), (d) and (e) at court rate from the date of judgment till payment in full.
The claim against the 2 nd respondent was dismissed.
Dissatisfied with the decision of the lower court, the appellant appealed to this court on grounds that the learned magistrate erred both in fact and law by: -
a) Apportioning liability between the 1 st respondent and appellant in the ration 10:90 despite the overwhelming evidence that the 1 st respondent was the author of his own misfortune;
b) Finding that the 1 st respondent had proved negligence on the part of the appellant without proof of the same as prescribed by law;
c) Finding that the appellant was solely responsible for the operations of the 2 nd respondent’s machines and equipment thereby failing to note that the 2 nd respondent had a duty of ensuring the machines and equipment were well maintained;
d) Completely ignoring its submissions and binding authorities
e) Awarding the 1 st respondent general damages for pain and suffering at the sum of Kshs. 2,000,000/- which was excessive considering the injuries sustained by him;
f) Awarding the 1 st respondent, a sum of Kshs. 500,000/- as general damages for diminished earning capacity without proper pleadings as prescribed by law in disregard of the guiding principles;
g) Awarding the 1 st respondent, a sum of Kshs. 960,000/- as a future medical expense in disregard of the applicable principles;
h) Finding that the apportionment of liability in respect of future medical expenses should not be subjected to 10% contribution;
i) Awarding sums in respect of damages which were inordinately high and excessive in the circumstances occasioning miscarriage of justice;
j) Failing to consider conventional awards in cases of similar nature;
k) Failing to find that the appellant is not a legal entity capable of being sued by the 1 st respondent as pleaded in paragraph 1 of the statement of defence
The appellant prays that the appeal be allowed; the judgment and decree of the lower court be set aside and any other relief that the court may deem fit or just be granted.
The 1 st respondent on his part opposed the appeal herein and cross appealed against the findings of the learned magistrate both as regards the appellant and the 1 st respondent.
As regards the cross appeal the 1 st respondent in his memorandum of cross-appeal dated 3.3.25 complained that the trial court erred by dismissing the suit against the 2nd respondent,by awarding interest on diminished earning capacity and disallowing it at the same time and awarding interests on special damages from the date of the judgment.
The 2 nd respondent opposed the appeal and largely supported the finding of the learned magistrate.
APPELLANT’S SUBMISSIONS
The appellant submitted that the evidence given by the 1 st respondent who was the sole eyewitness to the accident, is contradictory regarding the circumstances upon which it occurred thereby rendering it unbelievable. For instance, in his evidence in chief, the 1 st respondent informed the court that he switched off the machine before stepping on it. In cross examination, he stated that he instructed his colleague Frank Mwangi (Mwangi was not the machine operator) to switch off the machine.
That turning himself to a machine operator or stepping in the machine without ensuring that it was safe to do so and/or without the instructions of the machine operator as was the norm, the 1 st respondent voluntarily assumed the risk inherent in the activity he was undertaking and/or substantially contributed to the occurrence of the accident.
Further that given the fact that the work the 1 st respondent was engaged to undertake was to be undertaken using hands as opposed to legs, the appellant cannot reasonably be blamed for failing to provide the 1 st respondent safety gear in the nature of gumboots
In the view of the foregoing, the appellant submitted that the learned magistrate erred in determining that the 1 st respondent had proved that the appellant was liable for causing the accident.
In alternative and without prejudice thereto, the appellant submitted that the learned trial magistrate erred by determining that the appellant substantially contributed to the occurrence of the accident. That in the peculiar circumstances of this case, if any liability is attributable to the appellant and/or the 2 nd respondent, the extent of liability should not exceed 30% as against the appellant and/or the 2 nd respondent.
It was further submitted that the 1 st respondent did not demonstrate that the appellant failed to do something which was within their duty to do and if done, in the special circumstances of this case, would have prevented the occurrence of the accident or lessened its impact.
It was further submitted that the determination by the learned trial magistrate that the appellant failed to ensure that its machines were at all material times manned by skilled operator who maintained proper communication with helpers is not supported by the totality of the evidence adduced before the trial court as the 1 st respondent admitted that there was a skilled machine operator at the time the injury occurred, only that he had stepped out for a short call. Absence of the skilled machine operator in the circumstances cannot be equated to failure to ensure the machine was manned by a skilled machine operator.
That the learned trial magistrate also misdirected herself when she faulted the appellant for failing to provide the 1 st respondent with safety boots to minimize the risk of injury or other equipment of retrieving jammed material from the machine when the nature of the work the 1 st respondent was hired to undertake did not include removing jammed materials in the machine.
It was submitted that the award of Kshs. 2,000,000/- in the circumstances of this case was excessive and not supported by the trend of award of damages in similar cases. The court was urged to interfere by setting it aside and substitute it with Kshs. 1,500,000/-, which amount accords with trends in award of damages for similar injuries.
Concerning the award of Kshs. 960,000/- for future medical expenses it was submitted that the same was not proved and there was no justification for awarding it.
Regarding the award of Kshs. 500,000/- for diminished earning, it was submitted that the 1 st respondent did not make a case for being awarded the same. That he did not prove that there is a job or duties he was undertaking, which duties or assignments he was rendered incapable to undertake.
It was submitted that to the extent that the 1 st respondent’s suit was instituted against an incorporated body lacking capacity to sue or be sued in its own name, the same was bad in law. In that regard the appellant placed reliance in the case of Mehul Nemchand Haria v Hombe Saw Mills & Another (2013) e KLR where the Court of Appeal held: -
“It is clear from rule 1 of order 29 (now order 30) that where a firm has two or more partners, a suit can be instituted in the firm’s name. If, however, the firm is a sole proprietorship, the rule does not apply and consequently a suit against a sole proprietorship must be in the name of the proprietor as opposed to the name of the firm.”
That the 1 st respondent sued the appellant using a business name, a none incorporated body.
In view of the foregoing, it was submitted that the 1 st respondent sued the wrong entity rendering the judgment and decree issued in his favour incapable of being enforced against his true employer as it was not made a party to the suit.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st respondent submitted that the issue of legal status of the appellant though pleaded was never canvassed at the trial and so it remained a non-issue. The 1 st respondent position is that the said issue was abandoned.
The 1 st respondent supported the court’s finding on liability and referred to the record of his evidence in chief. That the 1 st respondent suffered due to negligence of co-workers. The 1 st respondent maintained that the trial court’s finding on quantum of damages was supported by evidence and case law.
As regards cross appeal, the 1 st respondent submitted that the trial court failed to appreciate the principle of vicarious liability in exonerating the 2 nd respondent of liability.
On the issue of interest, the 1 st respondent submitted that the trial court made contradictory findings on interest with respect to diminished earning capacity. Further that there was no legal basis to award interest on special damages from date of judgment instead of date of filing suit.
2 ND RESPONDENT’S SUBMISSIONS
The 2 nd respondent largely supported the finding of the learned magistrate save to add that its name had been improperly stated and so the appeal was incompetent as against it.
DETERMINATION
From the record and the submissions, the court is enjoined to determine the following issues:
i. Whether the appellant was properly sued
ii. Whether the learned magistrate’s findings on liability and quantum were sound
This being a first appeal, it is the duty of this court to reevaluate the evidence adduced before the lower court with a view to reaching its own conclusion. In doing so I must remind myself that as a first appellate court I do not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or it is demonstrated that the trial court acted upon wrong principles in reaching the finding. The authorities on this are legion. See Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, Mwanasokoni v Kenya Bus Service Ltd (1982-88) KLR and Kiruga v Kiruga & Another (1988) KLR 348. I must however bear in mind that I neither heard nor saw the witnesses testify.
On the first issue, the appellant submitted that the 1 st respondent’s suit was instituted against an unincorporated body lacking capacity to sue or be sued in its name. Incidentally, the appellant had threatened in its statement of defence that it shall raise a preliminary objection on the basis that there was no legal entity by the name of Jadwicom General Construction and Supplies. The preliminary objection on the point of law appeared to have been abandoned by the appellant.
Be that as it may, the appellant’s witness who testified is PW2, in his written statement dated 18 th September 2017, introduced himself as a supervisor of Jadwicom General Construction and Supplies Ltd. If that is so, then the appellant was an entity capable of being sued. In any event nothing else turned on this issue during trial.
I accordingly find the said ground of appeal to be without merit.
The second issue which is critical is whether the trial magistrate’s finding on liability and quantum were sound.
On the evidence regarding how the accident occurred, I have carefully examined the evidence of the 1 st respondent, the only eye witness to the accident. All the witnesses called by the appellant and the 2 nd respondent did not witness the accident.
In his evidence, the 1 st respondent (plaintiff) testified that on the 11.8.2015, he was working during the night shift. That there was a worker whom he knew as Frank who was the operator of the 2 nd respondent’s machine which was being used to make bundles of the scrap metal heaped at the defendant’s premises (sic). That he went up the heap of scraps to remove one which was stuck therein and while there Mr. Frank operated the machine which entrapped his left leg with scrap metal bundles and he sustained multiple fractures. The injury later failed to heal leading to amputation of the left leg below the knee.
In his evidence, the 1 st respondent testified that the machine operator one Peter had stepped out for a short call. There is no dispute that the 1 st respondent sustained his injuries while in the premises of the 2 nd respondent under instructions of the appellant’s employees. Excerpts of his evidence read as follows:
“While there Mr. Frank operated the machine which entrapped my left leg with the scrap metal bundles.”
Under cross examination the 1 st respondent stated as follows:
“I had switched off the machine and I had told the operator to switch off the machine before I moved my leg to the machine.”
There was no rebuttal evidence to suggest that the machine was not switched off before the plaintiff used his leg. Both the appellant and the 2 nd respondent chose not to call either Frank Mwangi who was adversely mentioned by the 1 st respondent or Peter who supposedly walked out for a short call.
The evidence on record taken as a whole point to the fact that the 1 st respondent was at his usual place of work. The machine which caused his injuries is the one he was working with while using the same to make bundles of the scrap metal heaped at the premises of the 2 nd respondent. There is uncontested evidence that one Peter who operated the machine had walked out.
In the case of Mumias Sugar Co. Ltd v Charles Namatili C.A 151 of 1987, (UR) Gichuhi, Masime and Gicheru JJA held:
“An employer is required by law to provide safe working conditions of work in the factory and if an accident occurs while the employee is handling machinery the employer is responsible and will be required to compensate the injured employee.”
The above decision of the court of appeal reinforces the need for both the appellant and the 2 nd respondent to observe its statutory duty of care, to provide a safe working environment for its workers. In my assessment, the appellant and the 2 nd respondent failed to observe the common law duty of care in ensuring that all reasonable steps were taken to ensure that the 1 st respondent was safe while engaged upon the work for which he was responsible. This entailed ensuring that he had competent and diligent colleagues.
In HALBURY’S LAWS OF ENGLAND 3 RD Edition Volume 28 of Paragraph 88, it is stated:
“Where the relationship of master and servant exists, the defence of volenti non fit injuria is theoretically available but it is unlikely to succeed. If the servant was acting under the compulsion of his duty to employer, acceptance of the risk will rarely be inferred. Owing to his contract of service, a servant is not generally in a position to choose freely between acceptance and rejection of the risk and so the defence does not apply in an action, against the employer.”
Nyarangi J.A echoing the above words in the case of Makala Mailu Mumende v Nyali Golf County Club (1995) KLR 13 had this to say;
‘No employer in the position of the defendant would warrant the total continuous security of an employee engaged in the kind of work the plaintiff was engaged in, but inherently dangerous. An employer is expected to reasonably take steps in respect of the employment, to lessen danger or injury to the employee. It is the employer’s responsibility to ensure a safe working place for its employees.’
I therefore find that the finding by the trial magistrate that the appellant breached its duty of care to the 1 st respondent was well founded. In my view, the 1 st respondent proved, on the balance of probability that the appellant and 2 nd respondent had a duty of care and obligation to provide a safe working environment which include competent, diligent and reliable colleagues. There is no evidence that the 1 st respondent was trained or warned of the dangers of the machine near where he was working. The 1 st respondent ought not to have been exposed to tasks which could result in injury.
Tied to this issue is the ground of appeal by the 1 st respondent against the finding exonerating the 2 nd respondent. The 2 nd respondent was in the business of bailing scrap metal purchased by itself. It contracted the appellant to do the bailing using its bailing press machine. The bailing machine was in its premises. It purchased the scrap metal and the machines used though it led evidence to the effect that those manning the machine were not its employees. It is my considered finding that in the circumstances of this case, the 2 nd respondent was liable for acts of the appellant and its employees. I seek reliance in the case of Selle and Another v Associated Motor Boat Co. Ltd (1968) EA 123 where the court held:
“Where a person delegates a task or duty to another, not a servant to do anything for his benefit, or for the joint benefit of himself and the other, whether that other person be called agent or independent contractor, the employer will be liable for the negligence of that other in the performance of the task, duty or act”
I therefore find that the trial magistrate misdirected herself in finding that the 2 nd respondent was not culpable for the injuries suffered by the 1 st respondent. It is my finding that the 2 nd respondent was vicariously liable for the appellant’s breach of duty of care owed to the 1 st respondent. I find that the appellant and the 2 nd respondent are jointly and severally liable in negligence for the injuries suffered by the 1 st respondent. I uphold the apportioning of liability as held by the trial magistrate in the ratio of 90:10 in favour of the 1 st respondent.
On quantum, awards of damages lie in the discretion of the trial court but it is exercisable on settled principles. Appellate courts are slow to interfere with the same and will do so only in well-known circumstances. In Agnes Kamene Mulyali v Harvest Ltd (2017) eKLR the court of appeal quoted with approval its decision in Kenya Bus Services & Another v Mayende (1992) 2 EA 232 of 235 , where it held;
“The principles on which an appellate court will interfere with a trial court’s assessment of damages are now settled in Kenya. Kneller J.A, as he then was, put it thus in Kitavi v Coastal Bottles Ltd (1984) LLLR 213 CAK;
‘The Court of Appeal in Kenya should, as its frontrunners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or the award is so high or low that it amounts to an erroneous estimate ”
The question I have to decide is whether the award of Kshs. 2,000,000 as general damages was inordinately high as to amount to a wholly erroneous estimate of damage or injury suffered and thus calls for my interference.
I have carefully evaluated the trial magistrate’s finding on quantum. Before the trial court, the 1 st respondent sought an award of Kshs. 4,000,000 while the appellant suggested that an award of Kshs. 750,000 would suffice as general damages for pain and suffering. The 2 nd respondent proposed an award of Kshs. 1,500,000. The learned magistrate analyzed various case law before arriving at the figure of Kshs. 2,000,000. There is nothing to suggest that she acted on wrong principles, or took into consideration matters she ought not to have considered, or that she failed to take into consideration matters she ought to have considered and, in the end, arrived at a wrong decision. She correctly considered the case of Akhwaba Olubuliera Nicodemus v Dickson Shikuku (2020) eKLR.
Rai Cement Ltd v Michael Ochieng Otieno (2022) eKLR, Yobesh Makori v Elmerick Mobisa Bota (2021) eKLR and Mbesu & Another v Swaka (2024) eKLR where awards of between 2,000,000 to 2,500,000 were granted for more or less similar injuries.
I have considered the case law cited by the appellant including that of Nelson Njihia Kimani v David Marwa & Another (2017) eKLR and Frodak Cleaning Services & Another v Daniel Meshack Shikanga (2017) eKLR where awards of Kshs. 1,500,000 were made for similar injuries.
I have considered the age of the authorities cited and the rate of inflation. I find that the sum of Kshs. 2,000,000 made for general damages for pain and suffering was properly arrived at and find no reason to interfere with the same.
As regards the sums awarded for special damages and for diminished earning, the same were pleaded and evidence lead in proof. The 1 st respondent lost a limb and the permanent disability was assessed at 50%. He is not a skilled labourer and the trial court was properly guided by the case of Alpharama limited v Joseph Karuiki Cebron (2017) eKLR. The learned magistrate carefully weighed the evidence including that the 1st respondent’s chances of getting a job that fits his abilities was highly compromised by the disability resulting from the accident. She made a finding which I have no reason to disturb.
On the issue of interest, the learned magistrate made contradictory findings on the same. While it is indicated in paragraph 114 (c) that the said award shall not attract interest, paragraph 114 (g) indicates that the award attracts interest. Other than Kshs. 2000 which was specifically pleaded and receipts availed during time of filing suit, the other awards should attract interest from the date of judgment before the trial magistrate’s court. The sum of Kshs. 2000 shall attract interest from the date of filing suit. The other awards cannot be said to be special in the sense that the plaintiff was not ‘kept out’of his money since the date of filing suit and will therefore attract interest from the date of judgment. There was no valid reason for the finding that some awards are not subject to contribution. The appellant and the 2 nd respondent should only be held financially responsible for the exact portion of harm they caused. Where an accident is partly a claimant’s fault, as was the case herein, the compensation must be adjusted to reflect that shared responsibility. Even though special damages reimburse specific provable financial loss, to award the full amount would mean that the tortfeasors are absorbing 100% of the costs of injury that the claimant (1 st respondent) partially brought upon himself. All the awards shall therefore be subject to 10% contribution.
DISPOSITION
Accordingly, the upshot of this court’s decision is that the judgment delivered on the 5.9.24 is partly set aside and varied in the following terms:
i) The finding dismissing suit against the 2 nd respondent is set aside and substituted with one allowing the 1 st respondent’s suit against both the appellant and 2 nd respondent jointly and severally as follows
- Liability of 90:10 in favour of the plaintiff against appellant and 2 nd respondent
- General damages at Kshs. 2,000,000 less 10% contribution
- Cost of artificial limb at Kshs. 960,000 less 10% contribution
- General damages for diminished earning capacity at Kshs. 500,000 less 10% contribution
- Special damages at Kshs. 2000 less 10% contribution
ii) The awards shall attract interest at court rates from date of judgment in the lower court save for Kshs. 2000 which shall attract interest from date of filing suit
iii) The appellant and 2 nd respondent partly succeeded on issue of interest and contribution. The 1 st respondent has equally succeeded on his cross appeal. There shall be no order as to costs
DATED, SIGNED AND DELIVERED virtually this 8 th JULY 2026
D.O. ONYANGO.
JUDGE
1
JUDGMENT
INTRODUCTION
The 1 st respondent herein instituted a suit in the lower court to wit Milimani MCCC 5399 of 2016, seeking judgment against the appellant and the 2 nd respondent for:
i. General damages for;
• Pain, suffering and loss of amenities of life
• Cost of artificial limbs over the years
• Future loss or diminished earning capacity or loss of future earnings
ii. Special damages of Kshs. 75,320
The 1 st respondent’s suit against the appellant and the 2 nd respondent was premised on the grounds that on 11/8/2015 while serving as an employee of either the appellant or the 2 nd respondent, he got involved in an accident which he blamed the appellant or the 2 nd respondent for having caused by: -
i. Failing to keep any proper look out or regard to his safety
ii. Pressing on the hydraulic machine before or without ensuring his leg was not entrapped
iii. Pressing scrap metal together with his leg
iv. Failing to provide him with a safe place of work or safe means of work
v. Employing a careless or incompetent person
vi. Failing to provide him with sufficient working area or littering the workplace with scrap
vii. Failing to provide industrial boots or safe footwear
viii. Failing to sufficiently light up the work place
ix. Subjecting him to work injury
The appellant filed a statement of defence, dated 26/5/2017 and filed in court on 30 th May, 2017, in which it averred/contended that it had no legal capacity to be sued; that it neither had knowledge nor was it privy to any relationship between it and the 1 st respondent; that it did not owe any common law or statutory duty to the 1 st respondent and that if the 1 st respondent sustained any injuries, the injuries were occasioned by negligence on the part of the 1 st respondent by: -
i. Failing to be on proper look out in the circumstances of his work
ii. Failing to prevent harm from befalling him
iii. Failing to have any sufficient regard for his own safety at work
iv. Failing to have regard to the danger apparent at his place of work
v. Failing to exercise the skill and care expected of him
vi. Causing the accident
vii. Failing to heed to precautionary measures prescribed to him and his work mates while at work
viii. Failing to wear protective gear offered to him thus being in contravention of his instructions for safety
ix. Exposing himself to danger
The appellant further contended that the 1 st respondent had been given warning and frequent advisories by his supervisors concerning the imminent danger; that the 1 st respondent willingly accepted the risk associated with the work and that, on account of that acceptance he is not entitled to the reliefs sought
When the case came up for hearing, the plaintiff rehashed his pleaded case and maintained that he did not know who between the appellant and the 2 nd respondent was his employer
Concerning the circumstances surrounding the occurrence of the accident which resulted in his injuries, loss and damage, the 1 st respondent denied the appellant and the 2 nd respondent’s contention that he exposed himself to injury. He informed the court that he switched of the machine; that he was with one Frank Mwangi at the time and that the machine operator, Peter Mwangi had stepped out.
On cross examination by counsel for the appellant, the 1 st respondent admitted that the machine was operated by particular people; that he would arrange bundles in the machine using hands and that he would step on the materials to align them on instructions.
The learned trial magistrate determined that the 1 st respondent had proved his case against the appellant on balance of probabilities and proceeded to enter judgment in his favour as follows: -
a. Liability at 90:10% in favour of the 1 st respondent (plaintiff) against the appellant (2 nd defendant);
b. General damages at Kshs. 2,000,000/- less 10% contribution…
c. Cost of artificial limb at Kshs. 960,000/-
d. General damages for diminished earning capacity at Kshs. 500,000/- less 10% contribution thus Kshs. 450,000/- (shall not attract interest);
e. Special interest Kshs. 2000/-;
f. Net total Kshs. 3,212,000/-
g. Costs if the suit;
h. Interest on (b), (d) and (e) at court rate from the date of judgment till payment in full.
The claim against the 2 nd respondent was dismissed.
Dissatisfied with the decision of the lower court, the appellant appealed to this court on grounds that the learned magistrate erred both in fact and law by: -
a) Apportioning liability between the 1 st respondent and appellant in the ration 10:90 despite the overwhelming evidence that the 1 st respondent was the author of his own misfortune;
b) Finding that the 1 st respondent had proved negligence on the part of the appellant without proof of the same as prescribed by law;
c) Finding that the appellant was solely responsible for the operations of the 2 nd respondent’s machines and equipment thereby failing to note that the 2 nd respondent had a duty of ensuring the machines and equipment were well maintained;
d) Completely ignoring its submissions and binding authorities
e) Awarding the 1 st respondent general damages for pain and suffering at the sum of Kshs. 2,000,000/- which was excessive considering the injuries sustained by him;
f) Awarding the 1 st respondent, a sum of Kshs. 500,000/- as general damages for diminished earning capacity without proper pleadings as prescribed by law in disregard of the guiding principles;
g) Awarding the 1 st respondent, a sum of Kshs. 960,000/- as a future medical expense in disregard of the applicable principles;
h) Finding that the apportionment of liability in respect of future medical expenses should not be subjected to 10% contribution;
i) Awarding sums in respect of damages which were inordinately high and excessive in the circumstances occasioning miscarriage of justice;
j) Failing to consider conventional awards in cases of similar nature;
k) Failing to find that the appellant is not a legal entity capable of being sued by the 1 st respondent as pleaded in paragraph 1 of the statement of defence
The appellant prays that the appeal be allowed; the judgment and decree of the lower court be set aside and any other relief that the court may deem fit or just be granted.
The 1 st respondent on his part opposed the appeal herein and cross appealed against the findings of the learned magistrate both as regards the appellant and the 1 st respondent.
As regards the cross appeal the 1 st respondent in his memorandum of cross-appeal dated 3.3.25 complained that the trial court erred by dismissing the suit against the 2nd respondent,by awarding interest on diminished earning capacity and disallowing it at the same time and awarding interests on special damages from the date of the judgment.
The 2 nd respondent opposed the appeal and largely supported the finding of the learned magistrate.
APPELLANT’S SUBMISSIONS
The appellant submitted that the evidence given by the 1 st respondent who was the sole eyewitness to the accident, is contradictory regarding the circumstances upon which it occurred thereby rendering it unbelievable. For instance, in his evidence in chief, the 1 st respondent informed the court that he switched off the machine before stepping on it. In cross examination, he stated that he instructed his colleague Frank Mwangi (Mwangi was not the machine operator) to switch off the machine.
That turning himself to a machine operator or stepping in the machine without ensuring that it was safe to do so and/or without the instructions of the machine operator as was the norm, the 1 st respondent voluntarily assumed the risk inherent in the activity he was undertaking and/or substantially contributed to the occurrence of the accident.
Further that given the fact that the work the 1 st respondent was engaged to undertake was to be undertaken using hands as opposed to legs, the appellant cannot reasonably be blamed for failing to provide the 1 st respondent safety gear in the nature of gumboots
In the view of the foregoing, the appellant submitted that the learned magistrate erred in determining that the 1 st respondent had proved that the appellant was liable for causing the accident.
In alternative and without prejudice thereto, the appellant submitted that the learned trial magistrate erred by determining that the appellant substantially contributed to the occurrence of the accident. That in the peculiar circumstances of this case, if any liability is attributable to the appellant and/or the 2 nd respondent, the extent of liability should not exceed 30% as against the appellant and/or the 2 nd respondent.
It was further submitted that the 1 st respondent did not demonstrate that the appellant failed to do something which was within their duty to do and if done, in the special circumstances of this case, would have prevented the occurrence of the accident or lessened its impact.
It was further submitted that the determination by the learned trial magistrate that the appellant failed to ensure that its machines were at all material times manned by skilled operator who maintained proper communication with helpers is not supported by the totality of the evidence adduced before the trial court as the 1 st respondent admitted that there was a skilled machine operator at the time the injury occurred, only that he had stepped out for a short call. Absence of the skilled machine operator in the circumstances cannot be equated to failure to ensure the machine was manned by a skilled machine operator.
That the learned trial magistrate also misdirected herself when she faulted the appellant for failing to provide the 1 st respondent with safety boots to minimize the risk of injury or other equipment of retrieving jammed material from the machine when the nature of the work the 1 st respondent was hired to undertake did not include removing jammed materials in the machine.
It was submitted that the award of Kshs. 2,000,000/- in the circumstances of this case was excessive and not supported by the trend of award of damages in similar cases. The court was urged to interfere by setting it aside and substitute it with Kshs. 1,500,000/-, which amount accords with trends in award of damages for similar injuries.
Concerning the award of Kshs. 960,000/- for future medical expenses it was submitted that the same was not proved and there was no justification for awarding it.
Regarding the award of Kshs. 500,000/- for diminished earning, it was submitted that the 1 st respondent did not make a case for being awarded the same. That he did not prove that there is a job or duties he was undertaking, which duties or assignments he was rendered incapable to undertake.
It was submitted that to the extent that the 1 st respondent’s suit was instituted against an incorporated body lacking capacity to sue or be sued in its own name, the same was bad in law. In that regard the appellant placed reliance in the case of Mehul Nemchand Haria v Hombe Saw Mills & Another (2013) e KLR where the Court of Appeal held: -
“It is clear from rule 1 of order 29 (now order 30) that where a firm has two or more partners, a suit can be instituted in the firm’s name. If, however, the firm is a sole proprietorship, the rule does not apply and consequently a suit against a sole proprietorship must be in the name of the proprietor as opposed to the name of the firm.”
That the 1 st respondent sued the appellant using a business name, a none incorporated body.
In view of the foregoing, it was submitted that the 1 st respondent sued the wrong entity rendering the judgment and decree issued in his favour incapable of being enforced against his true employer as it was not made a party to the suit.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st respondent submitted that the issue of legal status of the appellant though pleaded was never canvassed at the trial and so it remained a non-issue. The 1 st respondent position is that the said issue was abandoned.
The 1 st respondent supported the court’s finding on liability and referred to the record of his evidence in chief. That the 1 st respondent suffered due to negligence of co-workers. The 1 st respondent maintained that the trial court’s finding on quantum of damages was supported by evidence and case law.
As regards cross appeal, the 1 st respondent submitted that the trial court failed to appreciate the principle of vicarious liability in exonerating the 2 nd respondent of liability.
On the issue of interest, the 1 st respondent submitted that the trial court made contradictory findings on interest with respect to diminished earning capacity. Further that there was no legal basis to award interest on special damages from date of judgment instead of date of filing suit.
2 ND RESPONDENT’S SUBMISSIONS
The 2 nd respondent largely supported the finding of the learned magistrate save to add that its name had been improperly stated and so the appeal was incompetent as against it.
DETERMINATION
From the record and the submissions, the court is enjoined to determine the following issues:
i. Whether the appellant was properly sued
ii. Whether the learned magistrate’s findings on liability and quantum were sound
This being a first appeal, it is the duty of this court to reevaluate the evidence adduced before the lower court with a view to reaching its own conclusion. In doing so I must remind myself that as a first appellate court I do not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or it is demonstrated that the trial court acted upon wrong principles in reaching the finding. The authorities on this are legion. See Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, Mwanasokoni v Kenya Bus Service Ltd (1982-88) KLR and Kiruga v Kiruga & Another (1988) KLR 348. I must however bear in mind that I neither heard nor saw the witnesses testify.
On the first issue, the appellant submitted that the 1 st respondent’s suit was instituted against an unincorporated body lacking capacity to sue or be sued in its name. Incidentally, the appellant had threatened in its statement of defence that it shall raise a preliminary objection on the basis that there was no legal entity by the name of Jadwicom General Construction and Supplies. The preliminary objection on the point of law appeared to have been abandoned by the appellant.
Be that as it may, the appellant’s witness who testified is PW2, in his written statement dated 18 th September 2017, introduced himself as a supervisor of Jadwicom General Construction and Supplies Ltd. If that is so, then the appellant was an entity capable of being sued. In any event nothing else turned on this issue during trial.
I accordingly find the said ground of appeal to be without merit.
The second issue which is critical is whether the trial magistrate’s finding on liability and quantum were sound.
On the evidence regarding how the accident occurred, I have carefully examined the evidence of the 1 st respondent, the only eye witness to the accident. All the witnesses called by the appellant and the 2 nd respondent did not witness the accident.
In his evidence, the 1 st respondent (plaintiff) testified that on the 11.8.2015, he was working during the night shift. That there was a worker whom he knew as Frank who was the operator of the 2 nd respondent’s machine which was being used to make bundles of the scrap metal heaped at the defendant’s premises (sic). That he went up the heap of scraps to remove one which was stuck therein and while there Mr. Frank operated the machine which entrapped his left leg with scrap metal bundles and he sustained multiple fractures. The injury later failed to heal leading to amputation of the left leg below the knee.
In his evidence, the 1 st respondent testified that the machine operator one Peter had stepped out for a short call. There is no dispute that the 1 st respondent sustained his injuries while in the premises of the 2 nd respondent under instructions of the appellant’s employees. Excerpts of his evidence read as follows:
“While there Mr. Frank operated the machine which entrapped my left leg with the scrap metal bundles.”
Under cross examination the 1 st respondent stated as follows:
“I had switched off the machine and I had told the operator to switch off the machine before I moved my leg to the machine.”
There was no rebuttal evidence to suggest that the machine was not switched off before the plaintiff used his leg. Both the appellant and the 2 nd respondent chose not to call either Frank Mwangi who was adversely mentioned by the 1 st respondent or Peter who supposedly walked out for a short call.
The evidence on record taken as a whole point to the fact that the 1 st respondent was at his usual place of work. The machine which caused his injuries is the one he was working with while using the same to make bundles of the scrap metal heaped at the premises of the 2 nd respondent. There is uncontested evidence that one Peter who operated the machine had walked out.
In the case of Mumias Sugar Co. Ltd v Charles Namatili C.A 151 of 1987, (UR) Gichuhi, Masime and Gicheru JJA held:
“An employer is required by law to provide safe working conditions of work in the factory and if an accident occurs while the employee is handling machinery the employer is responsible and will be required to compensate the injured employee.”
The above decision of the court of appeal reinforces the need for both the appellant and the 2 nd respondent to observe its statutory duty of care, to provide a safe working environment for its workers. In my assessment, the appellant and the 2 nd respondent failed to observe the common law duty of care in ensuring that all reasonable steps were taken to ensure that the 1 st respondent was safe while engaged upon the work for which he was responsible. This entailed ensuring that he had competent and diligent colleagues.
In HALBURY’S LAWS OF ENGLAND 3 RD Edition Volume 28 of Paragraph 88, it is stated:
“Where the relationship of master and servant exists, the defence of volenti non fit injuria is theoretically available but it is unlikely to succeed. If the servant was acting under the compulsion of his duty to employer, acceptance of the risk will rarely be inferred. Owing to his contract of service, a servant is not generally in a position to choose freely between acceptance and rejection of the risk and so the defence does not apply in an action, against the employer.”
Nyarangi J.A echoing the above words in the case of Makala Mailu Mumende v Nyali Golf County Club (1995) KLR 13 had this to say;
‘No employer in the position of the defendant would warrant the total continuous security of an employee engaged in the kind of work the plaintiff was engaged in, but inherently dangerous. An employer is expected to reasonably take steps in respect of the employment, to lessen danger or injury to the employee. It is the employer’s responsibility to ensure a safe working place for its employees.’
I therefore find that the finding by the trial magistrate that the appellant breached its duty of care to the 1 st respondent was well founded. In my view, the 1 st respondent proved, on the balance of probability that the appellant and 2 nd respondent had a duty of care and obligation to provide a safe working environment which include competent, diligent and reliable colleagues. There is no evidence that the 1 st respondent was trained or warned of the dangers of the machine near where he was working. The 1 st respondent ought not to have been exposed to tasks which could result in injury.
Tied to this issue is the ground of appeal by the 1 st respondent against the finding exonerating the 2 nd respondent. The 2 nd respondent was in the business of bailing scrap metal purchased by itself. It contracted the appellant to do the bailing using its bailing press machine. The bailing machine was in its premises. It purchased the scrap metal and the machines used though it led evidence to the effect that those manning the machine were not its employees. It is my considered finding that in the circumstances of this case, the 2 nd respondent was liable for acts of the appellant and its employees. I seek reliance in the case of Selle and Another v Associated Motor Boat Co. Ltd (1968) EA 123 where the court held:
“Where a person delegates a task or duty to another, not a servant to do anything for his benefit, or for the joint benefit of himself and the other, whether that other person be called agent or independent contractor, the employer will be liable for the negligence of that other in the performance of the task, duty or act”
I therefore find that the trial magistrate misdirected herself in finding that the 2 nd respondent was not culpable for the injuries suffered by the 1 st respondent. It is my finding that the 2 nd respondent was vicariously liable for the appellant’s breach of duty of care owed to the 1 st respondent. I find that the appellant and the 2 nd respondent are jointly and severally liable in negligence for the injuries suffered by the 1 st respondent. I uphold the apportioning of liability as held by the trial magistrate in the ratio of 90:10 in favour of the 1 st respondent.
On quantum, awards of damages lie in the discretion of the trial court but it is exercisable on settled principles. Appellate courts are slow to interfere with the same and will do so only in well-known circumstances. In Agnes Kamene Mulyali v Harvest Ltd (2017) eKLR the court of appeal quoted with approval its decision in Kenya Bus Services & Another v Mayende (1992) 2 EA 232 of 235 , where it held;
“The principles on which an appellate court will interfere with a trial court’s assessment of damages are now settled in Kenya. Kneller J.A, as he then was, put it thus in Kitavi v Coastal Bottles Ltd (1984) LLLR 213 CAK;
‘The Court of Appeal in Kenya should, as its frontrunners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or the award is so high or low that it amounts to an erroneous estimate ”
The question I have to decide is whether the award of Kshs. 2,000,000 as general damages was inordinately high as to amount to a wholly erroneous estimate of damage or injury suffered and thus calls for my interference.
I have carefully evaluated the trial magistrate’s finding on quantum. Before the trial court, the 1 st respondent sought an award of Kshs. 4,000,000 while the appellant suggested that an award of Kshs. 750,000 would suffice as general damages for pain and suffering. The 2 nd respondent proposed an award of Kshs. 1,500,000. The learned magistrate analyzed various case law before arriving at the figure of Kshs. 2,000,000. There is nothing to suggest that she acted on wrong principles, or took into consideration matters she ought not to have considered, or that she failed to take into consideration matters she ought to have considered and, in the end, arrived at a wrong decision. She correctly considered the case of Akhwaba Olubuliera Nicodemus v Dickson Shikuku (2020) eKLR.
Rai Cement Ltd v Michael Ochieng Otieno (2022) eKLR, Yobesh Makori v Elmerick Mobisa Bota (2021) eKLR and Mbesu & Another v Swaka (2024) eKLR where awards of between 2,000,000 to 2,500,000 were granted for more or less similar injuries.
I have considered the case law cited by the appellant including that of Nelson Njihia Kimani v David Marwa & Another (2017) eKLR and Frodak Cleaning Services & Another v Daniel Meshack Shikanga (2017) eKLR where awards of Kshs. 1,500,000 were made for similar injuries.
I have considered the age of the authorities cited and the rate of inflation. I find that the sum of Kshs. 2,000,000 made for general damages for pain and suffering was properly arrived at and find no reason to interfere with the same.
As regards the sums awarded for special damages and for diminished earning, the same were pleaded and evidence lead in proof. The 1 st respondent lost a limb and the permanent disability was assessed at 50%. He is not a skilled labourer and the trial court was properly guided by the case of Alpharama limited v Joseph Karuiki Cebron (2017) eKLR. The learned magistrate carefully weighed the evidence including that the 1st respondent’s chances of getting a job that fits his abilities was highly compromised by the disability resulting from the accident. She made a finding which I have no reason to disturb.
On the issue of interest, the learned magistrate made contradictory findings on the same. While it is indicated in paragraph 114 (c) that the said award shall not attract interest, paragraph 114 (g) indicates that the award attracts interest. Other than Kshs. 2000 which was specifically pleaded and receipts availed during time of filing suit, the other awards should attract interest from the date of judgment before the trial magistrate’s court. The sum of Kshs. 2000 shall attract interest from the date of filing suit. The other awards cannot be said to be special in the sense that the plaintiff was not ‘kept out’of his money since the date of filing suit and will therefore attract interest from the date of judgment. There was no valid reason for the finding that some awards are not subject to contribution. The appellant and the 2 nd respondent should only be held financially responsible for the exact portion of harm they caused. Where an accident is partly a claimant’s fault, as was the case herein, the compensation must be adjusted to reflect that shared responsibility. Even though special damages reimburse specific provable financial loss, to award the full amount would mean that the tortfeasors are absorbing 100% of the costs of injury that the claimant (1 st respondent) partially brought upon himself. All the awards shall therefore be subject to 10% contribution.
DISPOSITION
Accordingly, the upshot of this court’s decision is that the judgment delivered on the 5.9.24 is partly set aside and varied in the following terms:
i) The finding dismissing suit against the 2 nd respondent is set aside and substituted with one allowing the 1 st respondent’s suit against both the appellant and 2 nd respondent jointly and severally as follows
- Liability of 90:10 in favour of the plaintiff against appellant and 2 nd respondent
- General damages at Kshs. 2,000,000 less 10% contribution
- Cost of artificial limb at Kshs. 960,000 less 10% contribution
- General damages for diminished earning capacity at Kshs. 500,000 less 10% contribution
- Special damages at Kshs. 2000 less 10% contribution
ii) The awards shall attract interest at court rates from date of judgment in the lower court save for Kshs. 2000 which shall attract interest from date of filing suit
iii) The appellant and 2 nd respondent partly succeeded on issue of interest and contribution. The 1 st respondent has equally succeeded on his cross appeal. There shall be no order as to costs
DATED, SIGNED AND DELIVERED virtually this 8 th JULY 2026
D.O. ONYANGO.
JUDGE
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