Kikwembe v DWA Estate Limited (Civil Case 12 of 2018) [2025] KEMC 330 (KLR)
The bottom line
#A worker injured on someone else's property lost his compensation claim because his actual employer was the hired contractor, not the property owner.
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 plaintiff was an employee of the defendant at the material time
- 2.Whether the plaintiff was on duty in the defendant's employment on 30/10/2015
- 3.Whether the plaintiff was involved in an industrial accident on 30/10/2015
- 4.Whether the defendant is liable for the accident
- 5.Whether the plaintiff sustained injuries and suffered loss as a result of the accident
- 6.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof
- 7.Who should bear the costs of this suit
Key legal issues
#Whether an employer-employee relationship existed between the plaintiff and the defendant
No employment relationship existed; the plaintiff was an employee of Cosmas & Sons Limited, an independent contractor, as shown by his own cross-examination admission and the payslip
The plaintiff admitted in cross-examination that his contract of employment was with Cosmas & Sons Limited and not the defendant, and the payslip confirmed payment by that company. Applying the control test and related indicia from Christine Adot Lopeyio, Stein v Rising Title Productions and Kenya Pipeline v Ndegwa, the court found no control or instruction by the defendant over Cosmas & Sons or the plaintiff. The contract between the two companies was not produced.
Whether the defendant, not being the employer, is liable in negligence or breach of statutory duty
No liability attached to the defendant under the general rule on independent contractors and none of the exceptions applied
Citing Kenya Power & Lighting v Okeyo, Charlesworth on Negligence and Board of Governors St. Mary's School v Boli Festus Andrew Sio, the court held an employer is not liable for torts of an independent contractor or its employees. The plaintiff's case fell under none of the exceptions; the mere fact the work occurred on the defendant's premises does not establish culpability, and no causal link to the defendant was established.
Effect of the defendant failing to call any witness
Allegations in the defence and witness statements remained mere allegations not constituting evidence
Following John Wainaina Kagwe v Hussein Dairy Limited and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court disregarded reliance on the defence and witness statements since no witness testified, and held submissions cannot take the place of evidence.
Quantum of damages had liability been established
The court assessed hypothetical general damages at Ksh. 700,000/= and special damages at Ksh. 3,300/=
Relying on Gladys Wanjiru Njaramba v Globe Pharmacy and Andrew Mwori Kasaya v Kenya Bus Service, the court assessed damages notwithstanding dismissal. Considering comparable femur fracture awards (Pestony Limited, Kiautha v Ntarangwi, Jacaranda bodaboda, Okoth v Sunday), it adopted the plaintiff's proposed figure of Ksh. 700,000/= as commensurate with a left femur fracture.
Legal principles established
#- The burden of proving negligence lies on the plaintiff, who must adduce evidence of the particulars pleaded, on a balance of probabilities
- An employer is generally not liable for torts committed by an independent contractor or the contractor's employees, save for recognized exceptions
- A party who files witness statements but calls no witness gains nothing from them, and submissions cannot take the place of evidence
- A trial court is obliged to assess quantum of general damages even where the claim is dismissed
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a negligence/industrial injury claim
Relief refused
#General damages (proposed at Ksh. 700,000/=)
Plaintiff failed to prove negligence or breach of statutory duty against the defendant as he was an employee of an independent contractor
Special damages of Ksh. 3,300/=, costs and interest
Suit dismissed for failure to establish liability
Costs
Suit dismissed with costs to the defendant
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.
It is trite law that it is not enough to adorn the plaint with particulars of negligence.
What comes out clearly is that there was no employer-employee relationship between the defendant and the plaintifi herein.
The plaintifi was an employee of an independent contractor.
No causal link has been established between the accident and the defendant herein. I see no reason why the defendant should be held vicariously liable for the accident.
In summary, I hold that the plaintifi has failed to prove his case on a balance of probabilities as against the defendant. Consequently, I proceed to dismiss the plaintifi's suit with costs to the defendant.
Issues in the judgment
#Paragraph numbering in the judgment jumps from paragraph 29 to paragraph 130, suggesting a typographical error in the numbering of the analysis section
The defendant is cited as Hassan Noor Mahmoud v Tae Youn Ann with duplicated year bracketing [2001] [2001]
The case number of the suit is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kikwembe v DWA Estate Limited (Civil Case 12 of 2018) [2025] KEMC 330 (KLR)", Case Analysis (2025). Not stated in the judgment (suit filed 30/1/2018 vide plaint dated 17/1/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/330/eng@2025-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.