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ELRCDismissedAppeal from Milimani Chief Magistrates Court CMCC No 6145 of 2013 (number not stated in the judgment text)

Kivyuvi v Wilham (K) Limited (Appeal 112 of 2023) [2024] KEELRC 699 (KLR)

High Court of Kenya
14 March 2024
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the High Court against the judgment of Honourable A.M Obura (PM) delivered on 7th June 2018 in Milimani CMCC No 6145 of 2013, in which the appellant, an employee of the respondent company, challenged the apportionment of 60% liability against him for a workplace accident and the award of general damages of Kshs 60,000/=, and the failure to award Kshs 15,000/= in witness expenses. The appellant, injured when a chain fell on his thumb while removing a stuck box from a machine in the stores department, argued that the respondent failed to provide protective gloves and safety measures, relying on the Occupational Safety and Health Act and authorities on employer duty of care, and contended that the damages award was too low. The respondent maintained the injury was self-inflicted and invited the court to uphold the trial judgment. The appeal was disposed of by written submissions. Applying the principles in Selle v Associated Motor Boat Company Limited, the court found it uncontested that a maintenance department existed, that the appellant took it upon himself to remove the stuck box, and that this amounted to a deliberate assumption of risk. The court held that it would not interfere with the trial court's decision merely because it might have decided differently, found the trial court had competently dealt with the dispute, and declined to disturb both the apportionment of liability and the quantum. The appeal was dismissed with costs to the respondent.

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 finding the appellant 60% liable for the accident
  2. 2.Whether the award of general damages of Kshs 60,000/= was so low as to warrant interference
  3. 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

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01

Liability for workplace injury where the employee removed a stuck box from a machine and was injured

Holding

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

Reasoning

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.

p. 4
02

Scope of appellate interference with quantum of general damages

Holding

The award of Kshs 60,000/= was not disturbed; the court found no reason to interfere with either liability or quantum

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs
  2. 2.The judgment of the trial court on both liability and quantum is upheld

The bench

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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

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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

p. 4

Increase of general damages from Kshs 60,000/=

No reason found to interfere with quantum; the trial court arrived at a just decision

p. 4

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

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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.

The appeal is therefore found without merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of appeal
This in the opinion of the Court was a deliberate assumption of risk and there was nothing the respondent could do.
p. 4Liability - assumption of risk
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.
p. 4Appellate restraint on interference with trial court findings
The Court therefore finds no reason to interfere with the judgment of the trial Court both on the apportionment of liability and quantum.
p. 4Upholding liability and quantum

Issues in the judgment

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minor

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

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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, "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.