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ELRCAllowedNot stated in judgment

Mwaniki v Ultimate Security Services Limited & another (Cause 857 of 2017) [2023] KEELRC 178 (KLR)

Employment and Labour Relations Court
31 January 2023
2,291 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

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A Kenyan court ruled that security firms must equip guards for the actual risks they face, and awarded an assaulted guard Kshs 1.42 million.

What this practically means

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Executive summary

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The claimant, a security guard employed by the 2nd respondent, an affiliate of the 1st respondent, was sent with colleagues at around midnight on June 10, 2014 to answer a client's security alarm. Their vehicle reached a dead end; they were confronted by armed gangsters who opened fire. The claimant's colleagues escaped, but he could not. He called the control room for back-up but received no response, and was cornered and severely beaten, sustaining fracture of the anterior wall of maxillary antra with hemosinus, nasal cavity haematomas and a left orbital radioplaque foreign body, assessed at 6% permanent disability. He sued for general damages, special damages of Kshs 20,665, costs and interest, alleging inadequate protective equipment, no safe work system, no back-up response and inadequate training. The respondents conceded employment but denied negligence, blaming the claimant's own recklessness and asserting the encounter was an occupational hazard. The court found the parties' evidence common on the attack and injuries, corroborated by hospital records despite the inadmissibility of one medical report. It held the respondents failed to provide a safe working environment: guards armed only with helmets, batons and gowns were sent on what it called a 'confirmatory and suicidal mission', with no measures taken to summon assistance. The occupational-hazard and contributory-negligence defences were rejected. A Stamp Duty Act objection to the special damages documents, raised only in submissions, failed. The court awarded special damages of Kshs 20,665 and general damages of Kshs 1,400,000, with costs to the claimant and interest at court rates from judgment until payment in full.

Questions the Court framed

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

  1. 1.Whether the claimant has established that he suffered injuries as a result of the respondents' negligence
  2. 2.Whether he merits general damages, and the quantum of those damages
  3. 3.Whether he is entitled to special damages

Key legal issues

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01

Employer's liability for injuries to a security guard attacked by armed robbers

Holding

The respondents were negligent for failing to provide a safe working environment, including adequate protective equipment and an emergency response to the claimant's call for back-up.

Reasoning

The claimant and colleagues were sent at midnight to answer an alarm with only helmets, batons and gowns. Gun-toting robbers could not be restrained by batons; no bullet-proof vests were provided. The employer knew of the risk, and no evidence showed measures taken to summon assistance when the claimant called for back-up. Foreseeable risk demanded measures to eliminate or reduce it.

p. 3
02

Rejection of the respondents' occupational-hazard and contributory-negligence defences

Holding

The defences failed; it was illogical to say the claimant exposed himself, and the encounter with armed robbers was not a dispositive occupational hazard.

Reasoning

The court found it preposterous to send guards on a 'confirmatory and suicidal mission' to verify an obvious danger. The employer should instead introspect on the measures taken before and during the incident, given rampant violent robberies and the foreseeable risk to guards.

p. 4
03

Admissibility of unstamped special damages documents

Holding

The special damages documents were admitted; the Stamp Duty Act objection, first raised in closing submissions, was rejected.

Reasoning

Relying on Diamond Trust Bank Kenya Limited v Jaswinder Singh Enterprises, the court held the respondents should have objected at trial so the claimant could pay duty and penalty. There was no trial objection and the documents were admitted by consent, save the medical report the respondents objected to.

p. 4
04

Quantum of general and special damages

Holding

General damages awarded at Kshs 1,400,000 and special damages at Kshs 20,665 as pleaded.

Reasoning

The claimant suffered fracture of the anterior wall of maxillary antra with hemosinus, nasal cavity haematomas and left orbital radioplaque foreign body, assessed at 6% permanent disability. His injuries compared well with those in decisions cited by both parties, guiding an award of Kshs 1,400,000.

p. 5

Legal principles established

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  • The degree of care an employer owes must be commensurate with the degree of risk employees are exposed to; guards confronting armed robbers must be provided equipment adequate to that risk.
  • Private security firms must arm and train at least some of their guards with firearms when assigning dangerous missions; encountering armed robbers is not merely an occupational hazard excusing the employer.
  • An objection to unstamped documents under the Stamp Duty Act must be raised during trial so the producing party may cure it, and the court should allow payment of duty and penalty before rejection.
  • Assessment of damages is discretionary and must not be inordinately high or low so as to represent an entirely erroneous estimate.

Court orders

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  1. 1.The respondents shall pay to the claimant special damages at Kshs 20,665 and general damages for pain and suffering at Kshs 1,400,000 – total Kshs 1,420,665
  2. 2.Costs to the claimant
  3. 3.Interest allowed at court rates, from the date of Judgment, till payment is made in full

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Jurisdiction conceded by both parties; the claim was filed as a statement of claim under the Court's employment and labour jurisdiction

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.

In Sum, it is Ordered: a. The respondents shall pay to the claimant special damages at Kshs 20,665 and general damages for pain and sufiering at Kshs 1,400,000 – total Kshs 1,420,665. b. Costs to the claimant. c. Interest allowed at court rates, from the date of Judgment, till payment is made in full.
p. 5Final orders and disposition
The court is satisfied that the respondents were negligent, and that the claimant sustained bodily injuries, as a result of that negligence.
p. 4Finding of employer negligence
The degree of care imposed by law on the respondents, ought to have been commensurate with the degree of exposure the claimant and the other guards were exposed to.
p. 3Employer's duty of care calibrated to risk
It is a wrong approach for the respondents to submit that it is an occupational hazard that at some point a security guard will encounter armed robbers in line of duty, and that such encounter is not evidence of an employer's negligence.
p. 4Rejection of occupational hazard defence
before rejecting documents under the Stamp Duties Act, the court ought to give an opportunity to the party producing it to pay the stamp duty and the penalty.
p. 4Procedure on unstamped documents

Issues in the judgment

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minor

The judgment states the dangerous mission was assigned on April 10, 2014, but the claim pleaded and evidence placed the incident on June 10, 2014.

minor

The claimant's submission on PN Mashruu Limited records an award of 'Kshs 1,200' where Kshs 1,200,000 is evidently meant.

minor

The statement of response is stated to have been filed on January 8, 2017, before the statement of claim date of May 22, 2017, an apparent date inconsistency.

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, "Mwaniki v Ultimate Security Services Limited & another (Cause 857 of 2017) [2023] KEELRC 178 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/178/eng@2023-01-31

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