Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Nakuru)

Arkay Industries Limited v Abdalla Amani [1990] KECA 60 (KLR)

Court of Appeal of Kenya
1 March 1990
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The respondent, an expeller cleaner employed by the appellant at its Eldoret edible oil processing plant, suffered amputation of two fingers of his left hand in November 1985 when his hand fell into an unfenced, moving processing machine. He slipped from an oil-cake-slicked table while pouring oil cake into the machine. The trial judge found the appellant in breach of section 23(1) of the Factories Act (duty to securely fence dangerous machinery), but apportioned 25% contributory negligence to the respondent, awarded global general damages of Shs 200,000/- and, after deductions for contributory negligence and workmen's compensation paid, entered judgment for Shs 143,509.60 with interest and costs. The appellant appealed on liability and quantum; the respondent cross-appealed, contending that section 23(1) imposed strict liability and that the contributory negligence finding was erroneous. The Court of Appeal held that the machinery required compliance with section 23(1), that the appellant was in breach of that statutory duty, and that liability was properly established. However, section 23(1) does not impose strict liability: a plaintiff who takes a risk created by a breach of statutory duty, which a reasonably prudent person would not take, may be contributorily negligent. The 25% apportionment and the Shs 200,000/- award were not shown to be manifestly erroneous or excessive. Both the appeal and the cross-appeal were dismissed, each side bearing the other's costs of its respective attack on the judgment below.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether section 23(1) of the Factories Act imposes strict liability excluding contributory negligence
  3. 3.Whether the trial judge erred in finding the respondent 25% contributorily negligent
  4. 4.Whether the award of general damages of Shs 200,000/- was manifestly excessive

Key legal issues

#
01

Breach of statutory duty under section 23(1) Factories Act

Holding

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.

Reasoning

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.

p. 3
02

Whether section 23(1) imposes strict liability excluding contributory negligence

Holding

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.

Reasoning

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.

p. 3
03

Contributory negligence apportionment of 25%

Holding

The trial judge's apportionment of 25% contributory negligence to the respondent was not manifestly erroneous and did not merit appellate interference.

Reasoning

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.

p. 3
04

Quantum of general damages

Holding

The global award of Shs 200,000/- for pain, suffering and loss of amenities was not manifestly excessive.

Reasoning

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.

p. 3

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. 1.The appellant's appeal is dismissed with costs to the respondent
  2. 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.

majority
majority
majority
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

p. 3

Appellant's contention that the general damages award was too high

The award was not manifestly excessive when all factors were considered

p. 4

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

p. 3

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.
p. 3Breach of statutory duty and contributory negligence
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.
p. 4Appellate interference with quantum of damages
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.
p. 4Disposition - final orders
...consist of the absence of that ordinary care sentient being ought reasonably to have taken for his own safety.
p. 3Definition of contributory negligence (per Lord FitzGerald in Wakelin)

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.