Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited [2016] KEELRC 984 (KLR)
The bottom line
#A Kenyan court made the employer pay 100% of a worker's injury damages because blaming the employee without evidence is unacceptable.
What this practically means
#Executive summary
#Key legal issues
#Contributory negligence and burden of proof
The Respondent failed to discharge the burden of proving contributory negligence; the apportionment of 40% liability against the Appellant was unsupported by evidence and set aside, with liability placed at 100% on the Respondent
The Respondent called no evidence showing how dismounting the truck backwards amounted to negligence, and did not demonstrate what the Appellant could have done differently. The uncontradicted evidence showed rain, slippery conditions, a 5-foot cabin and absence of a ladder or safety boots. The court held the employee need not request safety equipment, and the employer's supervisory duty was not discharged.
Employer's duty to provide a safe system of work
The employer must supply the safety system and equipment and ensure compliance through supervision; the risk of falling in rainy slippery conditions was not necessarily incidental to employment and was avoidable
Adopting Mghosi v. Gaya Engineering Works and Longonot Horticulture, the court held the supervisor merely instructed the Appellant to start the stalled vehicle without supervisory input. Providing a ladder and safety boots was neither unreasonable nor impracticable, and the risk was foreseeable and avoidable.
Assessment of damages for loss of future earning capacity
Loss of future/diminished earning capacity is general damages, not subject to a multiplier unless justified; the award of Kshs. 300,000 was a proper educated impressionistic assessment and was not disturbed
The court distinguished loss of earnings (special damages, strictly proved) from loss of earning capacity (general damages). The Appellant worked for nearly two years after the accident and continued working after termination, and failed to justify a 12-year multiplier. Private-sector retirement age is contractual, so the 60-year figure was inapposite.
Legal principles established
#- An employer must not merely provide a safe system of work but must ensure employees comply with it, through supervision; the employee is not required to request safety equipment
- The employer's common law duty of care extends to all employees, skilled and unskilled alike; the law does not distinguish between skilled and manual labour in attaching the duty of care
- Loss of earnings must be specifically pleaded and strictly proved as special damages, whereas loss of future earning capacity is general damages proved on a balance of probability and may be assessed by educated impressionistic guess
- There is no statutory retirement age of 60 years applying across the entire labour market; retirement age in the private sector is a matter for the parties' contracts
Court orders
#- 1.Appeal on negligence and apportionment of liability is allowed
- 2.Liability borne by the Respondent at 100%, with the Respondent paying the Appellant 40% of Kshs. 800,000, at Kshs. 320,000, being the balance of general damages
- 3.Appeal on assessment of damages for loss of future earning capacity and/or diminished earning capacity is rejected
- 4.Parties to bear their costs of the Appeal
- 5.Costs in the Trial Court shall remain as granted in that Court
- On appeal from
- Magistrates' Court (Trial Court)
- Jurisdiction invoked
- Appeal transferred from the High Court to the Employment and Labour Relations Court under the ELRC's jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited [2016] KEELRC 984 (KLR)", Case Analysis (2016). ELRC Appeal No. 163 of 2008 (formerly Civil Appeal No. 163 of 2008, High Court Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/984/eng@2016-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.