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ELRCPartially AllowedELRC Appeal (formerly High Court Civil Appeal No 201 of 2017), arising from Mombasa CMCC No 1009 of 2013

Simon Unda Katana v Deeman Construction Co Ltd & 4 others [2019] KEELRC 540 (KLR)

Employment and Labour Relations Court at Mombasa
24 October 2019
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court expanded a workplace injury award to hold four companies liable jointly, confirming employers cannot escape blame through contractors.

What this practically means

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Executive summary

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This first-instance appeal, originally filed in the High Court at Mombasa as Civil Appeal No 201 of 2017 and transferred to the Employment and Labour Relations Court by order of P.J Otieno J, challenged the judgment of Hon H. Nyakweba PM in Mombasa CMCC No 1009 of 2013. The Appellant, a mason employed by the 1st Respondent, was injured on 29th September 2011 at the 4th Respondent's premises when a metal object fell from a forklift owned by the 2nd Respondent. The trial court had dismissed the case against the 1st, 3rd and 5th defendants and entered judgment against the 2nd and 4th defendants, awarding Kshs 1,600,000 general damages, Kshs 100,000 future medical expenses and Kshs 2,000 special damages. The Appellant raised eight grounds falling under liability and quantum. Applying the settled first-appeal principles restated in Ndungu Dennis v Ann Wangari Ndirangu, Linnet Ndolo J held that the entry of interlocutory judgment against the 2nd Respondent did not extinguish the claim against the other defendants, and that the trial court had erred in exonerating the 1st and 3rd Respondents despite evidence that the 3rd Respondent had contracted the 1st Respondent to work at the accident scene. On quantum, the court found no basis for interference. The judgment of 15th September 2017 was varied: judgment was entered against the 1st, 2nd, 3rd and 4th Respondents jointly and severally for the same sums, with costs of both courts awarded to the Appellant. The dismissal of the claim against the 5th Respondent was confirmed on the ground of vicarious liability.

Questions the Court framed

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

  1. 1.Whether the trial court erred in failing to apportion liability among all five defendants despite the interlocutory judgment entered against the 2nd defendant
  2. 2.Whether the trial court erred in dismissing the case against the 1st, 3rd and 5th defendants without proper consideration of the evidence
  3. 3.Whether the award of damages was inordinately low in view of the severity of the injuries sustained

Key legal issues

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01

Duty of first appellate court

Holding

The first appellate court must re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage

Reasoning

The court adopted the principles restated by Joel Ngugi J in Ndungu Dennis v Ann Wangari Ndirangu, drawn from Court of Appeal authority, and applied them in re-assessing the trial court's findings on liability against each of the five defendants.

p. 2
02

Effect of interlocutory judgment in multi-defendant suits

Holding

Interlocutory judgment against one defendant settles liability against that defendant but does not end the court's duty to apportion liability among the others

Reasoning

The court accepted the Abdullahi Ibrahim Ahmed principle that interlocutory judgment makes liability against that defendant unassailable, but held that in multi-defendant cases the trial court remains under a duty to determine the contribution of the remaining defendants, which the trial magistrate failed to do for the 1st and 3rd respondents.

p. 2
03

Liability of the 5th Respondent

Holding

Negligence of the 5th Respondent was established, but since he was an agent of the 2nd Respondent, the 2nd Respondent bore vicarious liability and the claim against the 5th Respondent is dismissed

Reasoning

The court disagreed with the trial court that negligence was not established, noting the plaint's particulars of negligence and the Appellant's testimony blaming the 5th Respondent. However, because the 5th Respondent acted as agent of a known principal, vicarious liability rested with the 2nd Respondent.

p. 3
04

Exoneration of the 1st and 3rd Respondents

Holding

The trial court misdirected itself in exonerating the 1st and 3rd Respondents; the evidence established their respective roles and liability was entered against them

Reasoning

The witness Salim Wambua confirmed the 3rd Respondent had contracted the 1st Respondent to work at the accident scene, and there was no material justifying exoneration. The court held the trial magistrate misdirected himself on law and facts and entered judgment against them jointly with the 2nd and 4th Respondents.

p. 3
05

Quantum of damages

Holding

The award of Kshs 1,600,000 general damages, Kshs 100,000 future medical expenses and Kshs 2,000 special damages was not inordinately low and was left undisturbed

Reasoning

The court considered the severe injuries (fractured humerus, ruptured liver, fractured ribs, 12% permanent disability) and the trial magistrate's adjustment of a 1991 award for inflation and lapse of time, finding no basis for interference. The court ignored the Appellant's new loss-of-earning-capacity argument and the respondents' back-door cross-appeal.

p. 3

Legal principles established

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  • On a first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, while giving due allowance to the trial court's advantage of seeing and hearing witnesses
  • In a case with multiple defendants, entry of interlocutory judgment against one defendant does not extinguish the claim against the other defendants; the court remains bound to determine the contribution of the remaining defendants

Court orders

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  1. 1.Judgment entered in favour of the Appellant against the 1st, 2nd, 3rd and 4th Respondents jointly and severally in the sum of Kshs. 1,600,000 in general damages, Kshs. 100,000 for future medical expenses and Kshs. 2,000 as special damages
  2. 2.The 1st, 2nd, 3rd and 4th Respondents to pay the costs incurred in this Court and in the Court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Mombasa (Principal Magistrate Hon H. Nyakweba, PM)
Mombasa CMCC No 1009 of 2013
Jurisdiction invoked
First appellate jurisdiction exercised pursuant to an order of P.J Otieno J transferring High Court Civil Appeal No 201 of 2017 to this Court

Relief refused

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Interference with the award of general damages on quantum

The trial magistrate's assessment was found to be proper; the Appellant also sought to introduce loss of earning capacity not canvassed at trial

p. 3

Restoration of the claim against the 5th Respondent

Though negligence was established, the 5th Respondent was an agent of the 2nd Respondent, who was vicariously liable

p. 3

Costs

The 1st, 2nd, 3rd and 4th Respondents will pay the costs incurred in this Court and in the Court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Judgment is entered in favour of the Appellant against the 1 st, 2nd, 3rd and 4th Respondents jointly and severally, in the sum of Kshs. 1,600,000 in general damages, Kshs. 100,000 for future medical expenses and Kshs. 2,000 as special damages.
p. 4Final orders - judgment on varied quantum against four respondents
in a case with multiple defendants such as the present one, entry of interlocutory judgment against one defendant does not extinguish the claim against the other defendants.
p. 2Effect of interlocutory judgment in multi-defendant litigation
the learned trial Magistrate misdirected himself on the law and facts and thus arrived at an erroneous decision on the question of liability.
p. 3Appellate finding on trial court's misdirection on liability
because the 5 th Respondent was an agent of the 2 nd Respondent, then the 2 nd Respondent was vicariously liable for his actions.
p. 3Vicarious liability of principal for agent
I find nothing in the assessment by the learned trial Magistrate to justify interference with the award.
p. 3Quantum left undisturbed
The 1st, 2nd, 3rd and 4th Respondents will pay the costs incurred in this Court and in the Court below.
p. 4Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Unda Katana v Deeman Construction Co Ltd & 4 others [2019] KEELRC 540 (KLR)", Case Analysis (2019). ELRC Appeal (formerly High Court Civil Appeal No 201 of 2017), arising from Mombasa CMCC No 1009 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/540/eng@2019-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.