Background
1. This appeal arises from the judgment of the Senior Resident Magistrate’s Court at Tamu in Civil Case No. E5 of 2020, delivered on 4th October 2022 by Hon. Amos Kipkoros Makoross, Senior Resident Magistrate. The dispute originated from a claim by Joab Sande Agwenge (the Respondent herein) against Muhoroni Sugar Company Limited (the Appellant) regarding an alleged assault that occurred within the Defendant’s premises.
2. The Respondent who was an electrician and foreman with the Appellant, filed the suit in the lower court seeking general and special damages, costs, and interest, claiming that on 2nd September 2019, while at his workplace, he was accosted and assaulted by a group of the Appellant’s employees and outsiders, resulting in bodily injuries. He attributed negligence to the Appellant for failing to secure the workplace, allowing unauthorized persons into the premises, and failing to take disciplinary action against its employees who were part of the perpetrators.
3. The Appellant denied liability and filed a statement of defense asserting that the Respondent was the author of his misfortune, as he had been advised not to report to work on the material day due to security concerns, but failed to heed the warning. The Defendant also contended that the assault was a criminal act committed by third parties outside the scope of employment, and therefore, the company could not be held vicariously liable.
4. During the trial, the Respondent testified that he had been an employee of the Appellant company since 1992 and that he was attacked by fellow employees within the company premises after fixing an electrical fault in the factory. He produced medical records and a P3 form to support his claim of injuries sustained.
5. The Appellant, on the other hand, called three witnesses, including a security officer and the human resource manager, who confirmed that the Respondent was indeed assaulted but insisted that he had been warned to stay away from work for his safety.
6. Upon evaluating the evidence, the trial court found the Appellant fully liable for the injuries sustained by the Respondent, reasoning that the Appellant had failed in its duty of care to provide a safe working environment. The court awarded the Respondent Kshs. 300,000/= as general damages, along with costs and interest.
The Appeal
7. Aggrieved by the decision of the trial court, the Appellant filed the present appeal challenging the entire judgment on the grounds that the trial magistrate erred in holding the company liable, disregarded evidence of the Plaintiff’s own negligence, and awarded excessive damages.
8. The appeal was canvassed by way of written submissions. The Appellant’s submissions were filed on 27th November 2024, while the Respondent did not file any submissions.
Appellant’s Submissions
9. The Appellant submitted that the trial court erred in finding it liable for the assault on the Respondent, arguing that the attack was carried out by individuals acting outside the course of their employment and without the company’s authorization. The Appellant contended that vicarious liability could not be imposed in circumstances where employees engaged in criminal acts that were not related to their employment duties.
10. The Appellant further argued that the trial magistrate failed to appreciate that although an employer has a duty to ensure the safety of its employees, the employee also bears a duty to take reasonable precautions for their own safety while at the workplace. The Appellant submitted that it had taken reasonable steps to prevent harm to the Respondent by instructing him not to report to work on the fateful day due to security concerns. However, the Respondent ignored this warning and proceeded to the workplace, thereby knowingly exposing himself to danger.
11. The Appellant maintained that the trial magistrate erred in disregarding the evidence presented by its witnesses, particularly the testimony of its Human Resource Manager (DW2) and Security Officer (DW3), who confirmed that prior reports of threats against the Respondent had been made and that he had been advised not to report to work for his own safety. The Appellant submitted that the trial court wrongly placed the entire burden of ensuring the Respondent’s safety on the employer while failing to consider the Respondent’s own negligence in ignoring clear warnings.
12. The Appellant relied on the case of George Onyango Oyoo & Another v Securicor Security Services (K) Ltd [2019] eKLR, where the court held that an employer cannot always be held liable for injuries sustained by an employee, especially where the employee’s own actions contribute to the risk. The Appellant contended that the trial court ignored this legal principle by failing to apportion any liability to the Respondent despite clear evidence that he disregarded security warnings.
13. The Appellant also faulted the trial magistrate for holding it vicariously liable for the criminal acts of its employees, despite established legal principles that an employer can only be held liable for acts committed within the course of employment. The Appellant relied on David Munyei & 3 Others v Ronald Barasa [2006] eKLR, where the court reiterated that employers are not liable for independent criminal acts committed by employees outside the scope of their duties. The Appellant argued that the individuals who attacked the Respondent were not acting in furtherance of their employment but were instead engaged in a personal and criminal vendetta, for which the Appellant could not be held accountable.
14. The Appellant also argued that the trial magistrate erred in failing to consider that the Respondent had not proven his case to the required standard. The Appellant submitted that the Respondent failed to provide sufficient evidence to demonstrate that the Defendant’s alleged negligence was the direct cause of the assault. The Appellant relied on Halsbury’s Laws of England, 4th Edition, Pg. 662, which states that:-
"The burden of proof in an action for damages for negligence rests primarily on the plaintiff who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible."
15. On the quantum of damages awarded by the trial court, the Appellant submitted that the trial magistrate erred in awarding Kshs. 300,000/= as general damages, arguing that the amount was manifestly excessive given the nature of injuries sustained by the Respondent. The Appellant contended that the trial magistrate failed to consider comparable awards in similar cases and instead relied on an arbitrary figure without proper justification.
16. The Appellant relied on Grace Kavithe Mutiso v Philip Mang’oka Muluka [2018] eKLR, where the court awarded Kshs. 75,000/= for head injuries sustained as a result of an assault. The Appellant submitted that the injuries sustained by the Respondent in this case were of a similar nature and that an award of Kshs. 75,000/= would have been more reasonable.
17. In conclusion, the Appellant prayed that the appeal be allowed, the judgment of the trial court be set aside, and the Respondent’s suit be dismissed with costs. The Appellant further prayed that, should the court find liability on its part, the award of general damages be reduced to a more reasonable amount in line with previous judicial decisions. The Appellant also sought costs of this appeal and those incurred in the trial court.
Analysis And Determination
18. The role of this court as a first appellate court is well settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the court stated as follows: -
“An appeal to this Court … is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
23. Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the Court held that an appellate court is not bound by the trial court’s findings of fact if it is evident that the trial magistrate misapprehended the evidence, took into account irrelevant considerations, or failed to take account of material evidence.
24. With these guiding principles in mind, I now turn to the key issues for determination in this appeal:
i. Whether the trial court erred in holding the Appellant vicariously liable for the criminal acts of its employees.
ii. Whether the award of Kshs. 300,000/= as general damages was excessive in the circumstances.
Whether the trial court erred in holding the Appellant vicariously liable.
25. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi & Another [1968] EA 70 it was held that: -
‘’It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.’’
26. The Appellant contends that the assault on the Respondent was a criminal act carried out by employees who were not acting within the course of their employment. The Appellant argues that vicarious liability cannot attach where the wrongful acts of an employee are committed outside the scope of employment and for personal reasons.
27. The doctrine of vicarious liability is well established in law. For an employer to be held vicariously liable for the acts of his employee, the act must have been done in the course of his employment. The question is not simply whether the act was done during the employee’s working hours or at his workplace, but rather whether it was so closely connected with his employment that it would be just to hold the employer liable.
28. The Court of Appeal in the case of Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & another [2014] eKLR, citing the case of Kenya Bus Service Ltd. –vs- Kawira- Civil Appeal No. 295 of 2000, stated as follows:-
“The principle of vicarious liability is an anomaly in our law because it imposes strict liability on an employer for the delict of its employee in circumstances in which the employer is not itself at fault. An employer will be held to be vicariously liable if its employee was acting within the course and scope of employment at the time the delict was committed.”
29. In David Munyei & 3 Others v Ronald Barasa [2006] eKLR, the court reiterated that an employer is not liable for wrongful acts committed by an employee unless the act is within the scope of employment. The court held:-
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either: (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master. If the unauthorized and wrongful act is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible.”
30. From the evidence adduced at trial, there is no evidence that the Appellant’s employees who attacked the Respondent were acting in the furtherance of their employment. The Respondent testified that the attack occurred after he had repaired an electrical fault and returned to his office.
31. There was no evidence adduced by the Respondent at trial that the assailants were acting under the instructions of the Appellant or in furtherance of the Appellant’s business interests. Obviously, the attack happened during the business hours and within the premises of the Appellant. This, however, does not ipso facto mean that the employees were acting in the course of their employment.
32. The above notwithstanding, the mere fact that the Respondent was attacked at the Appellant’s premises, during business hours, while in the course of his employment, in my view, makes the Appellant liable, particularly taking into account the evidence by the Appellant that they had prior knowledge of a possible attack on the Respondent. From the record, I note that it was the Appellant’s case that they had advised the Respondent not to report to work on the material day due to a possible attack. This, however, in my view, did not in any way lessen the Appellant’s duty to ensure that the Respondent was safe during business hours. In fact, with this prior information or intelligence, the Appellant ought to have taken extra precautions to ensure the Respondent’s safety. Apart from the alleged advice to the Respondent, which was also disputed, no evidence was adduced by the Appellant of any further security steps they took to guarantee the safety of the Respondent while at the place of work.
33. Further, evidence on record, however, indicates that part of the persons who assaulted the Respondent were non-employees of the Appellant. The Appellant gave no explanation on how the non-employees managed to gain access to the Appellant’s premises and cause harm to the Respondent. For this reason, I find that the Appellant is equally to blame for the incident. It was the responsibility of the Appellant to keep the Respondent safe and free from harm while on its premises during business hours.
34. Accordingly, I find and hold that the trial magistrate did not err in finding the Appellant wholly liable. This ground of appeal is therefore dismissed.
Whether the award of Kshs. 300,000/= as general damages was excessive
35. The Appellant argues that the award of Kshs. 300,000/= was manifestly excessive given the nature of injuries sustained by the Respondent. It contends that a lower award would have been more appropriate based on comparable cases.
36. The principles governing the assessment of general damages on appeal were set out in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini versus A M Lubia and Olive Lubia [1982 – 88] 1 KAR 727 at p. 730 Kneller J A said:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that I must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
37. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:-
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
38. In the present case, I am to decide whether the sum of Kshs. The 300,000/- awarded by the trial court was excessive in light of the injuries suffered by the Respondent, as suggested by the Appellant. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.”
39. From the record of appeal, it is clear that the Respondent suffered injuries to the head and general body injuries. The Appellant in its submissions suggested a figure of Kshs. 75,000/- and cited the case of Harun Muyoma Boge Vs. Daniel Otieno Agulo (2015) eKLR in support of the submissions.
40. I have carefully reviewed the parties' submissions and the authorities relied on before the trial court, as well as the judgment of the trial court on the issue of quantum. The trial court in in awarding the sum of Kshs. 300,000/- relied on the decision of Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] KEHC 2210 (KLR) where a sum of Kshs. 300,000/- was awarded by Muchemi J for injuries which included head injury with loss of consciousness, and other soft tissue injuries.
41. The Appellant, on the other hand, relies on the case of Grace Kavithe Mutiso v Philip Mang’oka Muluka [2018] KEHC 3098 (KLR), where an amount of Kshs. 75,000/- was awarded by Odunga J (as he then was) for Blunt injury to the head resulting in a punctured wound on the left side of the head.
42. Having reviewed the injuries in the present case, I find that the injuries are more comparable to those suffered in the case of Grace Kavithe Mutiso case (supra), where a sum of Kshs. 75,000/- was awarded by the trial court. However, factoring in lapse of time and inflationary trends, I am of the view that an award of a sum of Kshs. 150,000/- in general damages would be adequate in the circumstances of this case.
43. Accordingly, the award of Kshs. 300,000/= is hereby set aside and substituted with an award of Kshs. 150,000/= in general damages.
Disposition
44. In light of the foregoing analysis, I find the instant appeal partially merited. Consequently, I make the following orders: -
i. The trial court’s finding on liability is hereby upheld.
ii. The award of Kshs. 300,000/= in general damages is set aside and substituted with an award of Kshs. 150,000/=.
iii. Each party shall bear its own costs, both at the lower court and in this appeal.
45. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL, 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.
N/A………. For the Appellant
N/A………………For the Respondent