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ELRCPartially AllowedHCCA (Memorandum of Appeal filed August 30, 2017)

W. E. Tilley (M) Limited v Libese (Appeal 11 of 2017) [2023] KEELRC 1159 (KLR)

High Court of Kenya
15 May 2023
JAJ. N. Abuodha
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court reduced an employer's liability to 70% for a driver's night attack, holding the employee partly responsible for disobeying instructions.

What this practically means

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Executive summary

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This is a first appellate judgment of the High Court at Nairobi (Abuodha J.) delivered virtually on May 15, 2023, on an appeal against a magistrate's court judgment that held the Appellant employer 100% liable for injuries sustained by the Respondent driver, who was attacked by thugs along Mai Mahiu–Suswa Road after his vehicle's tyre was punctured by a nail trap while he was collecting fish from Homabay, and awarded him Kshs.400,000/= in general damages. The Appellant argued the attack by criminals was not foreseeable, that security was the state's responsibility, and that the Respondent disobeyed instructions not to drive after 7.00 pm, relying on Mini Bakeries, Hudson Luvinzu Elavonga and Abadalla Baya Mwanyule. The court, applying Halsbury's Laws and Abadalla Baya Mwanyule, held that an employer owes only a duty of reasonable care against foreseeable risks. It found the Respondent had exposed himself to avoidable risk by driving at night against instructions he never rebutted, warranting contributory negligence; but the Appellant was also negligent in allowing the journey alone without a turn boy. Liability was apportioned 70% against the Appellant and 30% against the Respondent. On quantum, applying Gitobu Imanyara, the court found no basis to disturb the Kshs.400,000/= award. The appeal was allowed only on liability apportionment, with each party bearing their own costs of the appeal.

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 Magistrate erred in holding the Appellant 100% liable for the injuries sustained by the Respondent in the course of employment
  2. 2.Whether the award of Kshs.400,000/= as general damages was excessive and warranted interference

Key legal issues

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01

Employer's liability for criminal attack on employee during employment

Holding

Liability apportioned: Appellant 70% for allowing the driver to travel alone without a turn boy; Respondent 30% contributory negligence for driving at night against instructions and stopping to change a tyre at night

Reasoning

The court held the Respondent exposed himself to avoidable risk by driving at night contrary to the employer's instruction not to drive after 7.00 pm, which instruction he never rebutted. However, the Appellant was negligent in sending him on the journey alone without a turn boy, which would have enabled faster tyre change.

p. 3
02

Quantum of general damages for soft tissue injuries

Holding

The award of Kshs.400,000/= was upheld as adequate and not excessive

Reasoning

Applying Gitobu Imanyara, the court considered the nature of injuries, the authorities before the Trial Court, inflation, and the Trial Court's analysis, and found no wrong principle or erroneous estimate justifying interference.

p. 4

Legal principles established

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  • An employer owes no absolute duty to an employee; the duty is one of reasonable care against reasonably foreseeable risks
  • An appellate court will not disturb a trial court's assessment of damages unless a wrong principle was applied or the amount is entirely erroneous

Court orders

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  1. 1.Appeal allowed only to the extent of apportionment of liability for negligence at 70% against the Appellant
  2. 2.Respondent to bear 30% contributory negligence
  3. 3.Each party to bear their own costs of the appeal

The bench

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

JA
majority

Wrote the judgment

On appeal from
Trial Magistrate's Court (lower court)
Jurisdiction invoked
First appellate jurisdiction over the lower court's judgment (memorandum of appeal filed August 30, 2017)

Relief refused

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Setting aside the award of Kshs.400,000/= general damages as excessive

Court not persuaded the award was too high to warrant interference

p. 4

Costs

Each party shall bear their own costs of the appeal

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.

this Court will allow the appeal only to the extent of apportionment of liability for negligence at 70% as against the Appellant. The Respondent shall bear 30% contributory negligence.
p. 4Disposition - apportionment of liability
Each party shall bear their own costs of the appeal
p. 4Costs order
the employer owes no absolute duty to the employee and the only duty owed is that of reasonable care against risk of injury caused by events reasonably foreseeable or which would be prevented by taking reasonable precaution.
p. 3Employer's standard of duty
The Respondent exposed himself to risk which he could have avoided. The Trial Court to this extent erred when it did not apportion liability for negligence in this respect.
p. 3Contributory negligence of employee

Issues in the judgment

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minor

Neutral citation not provided in the judgment

minor

Lower court case number not stated in the judgment; case number field records only the filing date of the memorandum of appeal

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, "W. E. Tilley (M) Limited v Libese (Appeal 11 of 2017) [2023] KEELRC 1159 (KLR)", Case Analysis (2023). HCCA (Memorandum of Appeal filed August 30, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1159/eng@2023-05-15

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