DPL Festive Limited v Kiio (Appeal 65 of 2023) [2024] KEELRC 2180 (KLR)
The bottom line
#Kenya's High Court reduced a worker's injury payout from Kshs 700,000 to Kshs 453,000, holding the employee 10% responsible for his own accident.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in finding the Appellant 100% liable for the accident
Yes in part. The employer's duty of care was established since it failed to tender evidence of providing protective gear, but the respondent, with four years' experience doing the same work, contributed to the accident; 10% contributory negligence was apportioned to him.
The court accepted that the appellant, as employer, owed and breached a duty of care because it called no witnesses and produced no record of providing protective equipment. However, the respondent had offloaded and arranged wheat bags for four years without complaint or injury, and knew the dangers of wrongly arranged bags. The court held that some measure of liability had to be apportioned to the respondent for failing to take care, quantified at 10%.
Whether the award of Kshs 700,000/= as general damages was inordinately high
Yes. The trial court's authorities involved more severe injuries than the respondent's; applying comparable awards and adjusting for inflation, general damages were reduced to Kshs 500,000/=.
Applying the principle that an appellate court interferes only where the award is an entirely erroneous estimate, the court compared injuries. The trial court's comparables featured multiple fracture dislocations and severe injuries, whereas the respondent had dislocation of the left knee joint, blunt chest and shoulder injuries and bruises, with no permanent disability. The court adopted a comparable award of Kshs 350,000/= for similar injuries and adjusted for inflation and lingering knee pain to arrive at Kshs 500,000/=.
Legal principles established
#- A first appeal is by way of retrial: the appellate court must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
- An employer is under a duty to take reasonable care for the safety of his employees in all the circumstances so as not to expose them to unnecessary risk, but the employee also bears some measure of responsibility for their own safety
- Damages should be determined by the nature and extent of injuries sustained and comparable awards made in the past
Court orders
#- 1.Liability apportioned as against the appellant as stated in the final orders
- 2.General damages of Kshs 500,000/= substituted for the trial court's award of Kshs 700,000/=, less 10% contributory negligence, i.e. Kshs 450,000/=
- 3.Special damages of Kshs 3,000/= awarded, making a total of Kshs 453,000/=
- 4.Each party to bear their own costs
- On appeal from
- Milimani Chief Magistrates Court
- Civil Case No. 632 of 2013
- Jurisdiction invoked
- First appeal to the High Court from a subordinate court in a civil suit (appellate jurisdiction over the Chief Magistrates Court); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DPL Festive Limited v Kiio (Appeal 65 of 2023) [2024] KEELRC 2180 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (referenced only as an appeal from Milimani Chief Magistrates Court Civil Case No. 632 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2180/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.