Tile and Carpet Centre Limited v Geoffrey Kipkorir Langat [2021] eKLR

Key Facts

Issues

• e. Whether the orders sought by the Appellant should be granted.
• d. Whether the Learned Magistrate erred in awarding special damages in the sum of KES 8,000 for Court attendance of a Doctor;
• a. Whether the Learned Magistrate erred in law and in fact by holding that there was an employment relationship between the Appellant and the Respondent;
• b. Whether the Learned Magistrate erred in law and in fact by finding the Respondent had proved his case beyond a balance of probabilities thereby finding the Appellant wholly liable and failing to find the Respondent contributed to the injuries he sustained;
• c. Whether the award of KES 1,500,000 in general damages was inordinately high;

Holdings

• The court determined that the Respondent proved his case on a balance of probabilities, supported by medical evidence and uncontroverted testimony.
• The court ruled the appeal fails in its entirety, with costs awarded to the Respondent due to the Appellant's failure to meet its burden of proof.
• The court upheld the Trial Magistrate's apportionment of 100% liability to the Appellant, as the Appellant failed to provide evidence rebutting the Respondent's claims of negligence.
• The court confirmed that the KES 8,000 for the doctor's court attendance was properly pleaded and proved through receipts and exhibits.
• The court agreed the KES 1,500,000 general damages were appropriate given the severity of the injury and 12% permanent incapacitation, citing the Appellant's own evidence.
• The court found no error in the Trial Magistrate's determination that the Respondent was employed by the Appellant.

Remedies

• Special damages were awarded to the Respondent for the medical report (KES 3,000) and the doctor's court attendance (KES 8,000).
• The costs of the suit in both the trial court and the appellate court were awarded to the Respondent.
• The Appellant (Tile & Carpet Centre Limited) was found 100% liable for the injury sustained by the Respondent during his employment.
• The Respondent was awarded general damages of KES 1,500,000 for pain and suffering caused by the injury sustained in the crane accident.

Monetary Damages

Legal Principles

• The employer's duty to ensure a safe workplace under the Occupational Safety and Health Act was central. The court found the employer 100% liable for the employee's injuries caused by a malfunctioning crane, as the employer did not demonstrate compliance with safety obligations.
• The court addressed whether the employer's negligence directly caused the injury. It rejected the employer's argument that the employee contributed to the accident, noting no evidence of contributory negligence or failure to follow safety protocols.
• The court emphasized that the burden of proof lies with the party making the allegations, as per the legal principle established in Nandi Tea Estates Limited v Eunice Jackson Were. The employer failed to provide evidence to rebut the employee's claims of employment and negligence.
• The trial court applied the balance of probabilities standard to determine that the employee proved his case. The appellate court upheld this, noting the lack of evidence from the employer to challenge the findings.

Precedent Name

• Nandi Tea Estates Limited v Eunice Jackson Were
• Shabani v City Council Nairobi
• Gabriel Kariuki Kigathi & Another v Monica Wangui Wangechi
• Mohamed Farrah v Kenya Ports Authority
• Peters v Sunday Post Limited
• Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja
• West (H) & Sons, Limited v Shepherd
• Sumaria & Another v Allied Industrial Limited
• Cecilia W. Mwangi & Another v Ruth W. Mwangi
• Millicent Atieno Ochuonyo v Katola Richard
• Peter Benard Makau v Prime Steel Limited

Cited Statute

• Employment Act, 2007
• Occupational Safety and Health Act

Judge Name

Passage Text

• I have considered all the decisions cited to the Trial court and those cited before me... I therefore find no reason to interfere with the decision of the Trial Court and retain and uphold the award of KES 1,500,000 in damages.
• It is interesting to note that the learned trial magistrate decided to mitigate the award of damages by way of apportioning liability without evidence to support such a finding.
• I find the decision on all fours with the instant appeal and have nothing further to add but to return the finding that the Magistrate did not err in finding the Appellant 100% liable.