Arkay Industries Limited v Abdalla Amani [1990] KECA 60 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that employers who fail to fence dangerous machinery are liable, but workers who take obvious risks can still lose part of their compensation.
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 appellant was liable for breach of statutory duty under section 23(1) of the Factories Act for failure to fence dangerous machinery
- 2.Whether section 23(1) of the Factories Act imposes strict liability excluding contributory negligence
- 3.Whether the trial judge erred in finding the respondent 25% contributorily negligent
- 4.Whether the award of general damages of Shs 200,000/- was manifestly excessive
Key legal issues
#Breach of statutory duty under section 23(1) Factories Act
The appellant was in breach of section 23(1) for failure to securely fence the dangerous moving part of its machinery, and that breach caused the respondent's injuries; liability was properly established.
The court held the machinery required compliance with section 23(1). Evidence showed non-compliance, i.e. the machine was unfenced with nothing to hold on to. The subsection imposes an obligatory duty to ensure the safety of every person employed or working on the premises, and the breach resulted in the accident, so the trial judge's finding of liability could not be faulted.
Whether section 23(1) imposes strict liability excluding contributory negligence
Section 23(1) does not impose strict liability; a plaintiff who takes a risk created by a breach of statutory duty may be contributorily negligent.
The subsection's prime concern is the safety of every person employed or working on the premises and it imposes an obligatory duty. However, it does not impose strict liability in negligence. Where a plaintiff takes a risk created by the breach which a reasonable prudent man would not take, that risk may amount to contributory negligence, following Wakelin v London and South Western Railway Co.
Contributory negligence apportionment of 25%
The trial judge's apportionment of 25% contributory negligence to the respondent was not manifestly erroneous and did not merit appellate interference.
The respondent knew the table was slippery and dangerous, admitted he 'was supposed to be careful', yet took no step to wipe off the oil or place a sack on it. As an appeal court, the court could not say the 25% degree of responsibility was manifestly erroneous. The appellant's plea for equal apportionment also failed.
Quantum of general damages
The global award of Shs 200,000/- for pain, suffering and loss of amenities was not manifestly excessive.
Assessment of damages is a matter of judicial discretion. The trial judge took into account the amputation of two fingers, limited function of the ring finger, scars, hospitalisation, out-patient treatment, age, marital status and limited education. On these factors the award did not warrant reduction.
Legal principles established
#- Section 23(1) of the Factories Act imposes an obligatory duty to fence dangerous machinery, but breach of that statutory duty does not impose strict liability and does not bar a finding of contributory negligence against a plaintiff who voluntarily takes a risk created by the breach.
- An appellate court will not interfere with an award of damages unless the sum is demonstrably wrong, based on a wrong principle, or so manifestly excessive or inadequate that a wrong principle may be inferred.
Court orders
#- 1.The appellant's appeal is dismissed with costs to the respondent
- 2.The respondent's cross-appeal is dismissed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against the trial judge's decision on liability and damages)
Relief refused
#Appellant's challenge to liability and apportionment (sought equal apportionment of liability)
Liability under section 23(1) was established and the 25% contributory negligence finding was not manifestly erroneous
Appellant's contention that the general damages award was too high
The award was not manifestly excessive when all factors were considered
Respondent's cross-appeal seeking strict liability under section 23(1) and removal of the contributory negligence deduction
Section 23(1) does not impose strict liability; breach of statutory duty does not exclude contributory negligence
Costs
Appellant's appeal dismissed with costs to the respondent; respondent's cross-appeal dismissed with costs to the appellant.
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.
It does not, however, impose strict liability in negligence for where a plaintiff has taken a risk created by the breach of a statutory duty by a defendant, that risk may amount to contributory negligence if it is one which a reasonable prudent man in the position of such a plaintiff would not take.
For this court to interfere it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred.
In the upshot, the appellant’s appeal must fail. The same is therefore dismissed with costs to the respondent. Similarly, the respondent’s crossappeal fails and is dismissed with costs to the appellant. Orders accordingly.
...consist of the absence of that ordinary care sentient being ought reasonably to have taken for his own safety.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arkay Industries Limited v Abdalla Amani [1990] KECA 60 (KLR)", Case Analysis (1990). Civil Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/60/eng@1990-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.