Kivyuvi v Wilham (K) Limited (Appeal 112 of 2023) [2024] KEELRC 699 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate erred in finding the appellant 60% liable for the accident
- 2.Whether the award of general damages of Kshs 60,000/= was so low as to warrant interference
- 3.Whether the trial court erred in failing to award witness expenses of Kshs 15,000/= for the doctor's court attendance
Key legal issues
#Liability for workplace injury where the employee removed a stuck box from a machine and was injured
The appellant's act of removing the stuck box himself, despite a maintenance department existing, amounted to a deliberate assumption of risk; the 60% apportionment against him was justified
The court found it uncontested that the respondent had a maintenance department that should have serviced the machine. The appellant took it upon himself to remove the stuck box, claiming he and colleagues knew the machine better. The court viewed this as deliberate assumption of risk, leaving nothing the respondent could have done. The trial magistrate's apportionment of 60% liability was therefore found to be sound.
Scope of appellate interference with quantum of general damages
The award of Kshs 60,000/= was not disturbed; the court found no reason to interfere with either liability or quantum
The appellant argued the award was too low and relied on authorities on when an appellate court may interfere with damages. The court, having considered the trial judgment against the evidence, was persuaded the trial court competently dealt with the dispute and arrived at a just decision, and declined to interfere with the quantum.
Legal principles established
#- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with a trial court's decision merely because it would have decided differently
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the trial court on both liability and quantum is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrates Court
- CMCC No 6145 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court (Selle v Associated Motor Boat Company Limited [1968] E.A 123 principles applied)
Relief refused
#Setting aside the trial court's finding on 60% apportionment of liability against the appellant
The court found the appellant deliberately assumed risk by removing the stuck box himself and that the trial court competently dealt with the dispute
Increase of general damages from Kshs 60,000/=
No reason found to interfere with quantum; the trial court arrived at a just decision
Witness expenses of Kshs 15,000/= for the doctor's court attendance
The respondent submitted this was covered under costs awarded to the appellant in the lower court, and the appeal was dismissed
Costs
Appeal dismissed with costs to the respondent
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.
The appeal is therefore found without merit and is hereby dismissed with costs.
This in the opinion of the Court was a deliberate assumption of risk and there was nothing the respondent could do.
This Court as an appellate Court will therefore not interfere with the decision of a lower court simply because put in the same position it could have decided difierently.
The Court therefore finds no reason to interfere with the judgment of the trial Court both on the apportionment of liability and quantum.
Issues in the judgment
#The judgment does not state the appeal case number of the present matter in the text provided; only the lower court case number is given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kivyuvi v Wilham (K) Limited (Appeal 112 of 2023) [2024] KEELRC 699 (KLR)", Case Analysis (2024). Appeal from Milimani Chief Magistrates Court CMCC No 6145 of 2013 (number not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/699/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.