https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2191

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. 289 OF 2020** FRANCIS KARANJA GITHAKU.........................................**1ST CLAIMANT** JOYCE WANJIKU KARANJA……………………………..**2ND CLAIMANT** (Suing as the Legal Representatives of the Estate of Robert Kinuthia Karanja (Deceased)) **VERSUS** SALOME WANGUI NDUNG'U.........................………**1ST RESPONDENT** LEAH MUNJIRU NDUNG'U ……………………...….**2ND RESPONDENT** CAROLINE WANGUI NDUNG'U……………………**3RD RESPONDENT** KIMUCHU WHOLESALERS …………………………**4TH RESPONDENT** **JUDGMENT** 1. The Claimants, suing as the legal representatives of the estate of the deceased, instituted this suit via an Amended Memorandum of Claim dated 11th October 2024. They contend that at all material times Robert Kinuthia Karanja (Deceased) was employed by the 1st, 2nd and 3rd Respondents as a casual general worker and was assigned to work at the 4th Respondent's construction site in Limuru. The Claimants aver that the Respondents owed the deceased a contractual, statutory and common law duty to provide a safe working environment, a safe system of work and to take all reasonable precautions for his safety while at work. 2. It is the Claimants' case that on 11th August 2017, while the deceased was working in the basement of the construction site in the course of his employment, a section of topsoil collapsed and fell on him, burying him and causing him severe injuries. The Claimants attribute the accident to the Respondents' negligence and breach of their contractual and statutory duties, particulars whereof they state to include; failure to provide a safe place and system of work, failure to take adequate safety precautions, failure to warn of foreseeable danger, and exposing the deceased to unnecessary risk. 3. As a result of the accident, the Claimants state that the deceased sustained multiple injuries including fractures of the cervical, thoracic and lumbar vertebrae resulting in paralysis of the lower limbs, an intra-abdominal injury and a fracture of the left femur. It is further pleaded that the deceased underwent prolonged medical treatment, remained incapacitated and dependent on continuous care, incurred medical and related expenses, and was unable to resume gainful employment before his death on 2nd January 2022. 4. In view of the foregoing, the Claimants seek the following reliefs: * + 1. General damages; 2. Special damages of Kshs 1,619,020/-; 3. Future Medical expenses incurred up to the deceased's demise; 4. Loss of future earnings; 5. Damages for loss of expectation of life; 6. Damages for loss of consortium; 7. General damages for pain and suffering; 8. Costs of the suit; 9. Interest on all the items above from the date of filing suit. 10. Any other relief the court may deem fit to grant. 5. In opposition to the suit, the Respondents contend that on the fateful day the deceased was engaged as one of the six labourers at the 4th Respondent's construction site to excavate basement trenches in the middle section where foundation columns were to be erected. According to the Respondents, at about 4.00pm the site supervisor noticed that the deceased was missing, after which a search of the site revealed that a section of the soil on one corner of the plot had collapsed. The Respondents aver that owing to the deceased's habit of retreating to secluded corners of the site to smoke cannabis, it was suspected that he may have been buried under the soil. In confirmation of their suspicions the Respondents aver that the Claimant was rescued from beneath the soil after excavation, after which first aid was administered and he was rushed him to Limuru Nursing Home, and later transferred to Kenyatta National Hospital for specialised treatment. 6. In view of the foregoing, the Respondents assert that the deceased's duties did not require him to be at the corner of the site where the collapse occurred, as all excavation work was being undertaken in the middle of the plot. Having left his designated working area in the middle of the plot and retreated to the corner, they contend that the accident is not attributable to them because the Claimant was on a frolic of his own. 7. At the close of hearing parties file written submissions. Claimant's Submissions 1. From the outset, the Claimant submits that the evidence establishes the Respondents’ liability and entitles the Claimant's to the reliefs sought. They maintain that both defence witnesses confirmed that they knew the deceased and that he was injured during the accident. Moreover, they contend that the second defence witness materially contradicted himself by alleging that the deceased had hidden to smoke despite admitting that he had not seen him. The Claimant submits that the allegation amounted to inadmissible hearsay incapable of proving the truth of its contents. Reliance is placed on **Parkar *&* another *v* NQ *&* 2 others (Civil Appeal 139 of 2020) [2023] eKLR**, which in reference to **The Queen *v* O'Brien (1977) 38 CRNS 325** and **Subramaniam *v* Public Prosecutor [1956] 1 WLR 965 (PC)** stated: '*It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.*' 1. The Claimant submits that there was no evidence that the deceased was intoxicated or had absented himself from work and, in any event, such allegations do not absolve the Defendant from its statutory duty to provide a safe working environment. It is contended that the Defendant breached its duty of care by exposing the deceased and other employees to hazardous working conditions, thereby causing the accident and the deceased's eventual death. 2. Turning to quantum, the Claimant submits that the medical evidence demonstrates that the deceased sustained catastrophic injuries after being buried under rubble. It is argued that the medical report by Dr. Wokabi confirmed that the deceased suffered multiple fractures, paraplegia, permanent paralysis, incontinence and was assessed at 100% permanent disability before eventually succumbing to his injuries four years later. 3. On special damages, the Claimant submits that the amount of Kshs. 1,619,020/- was specifically pleaded and strictly proved through receipts and other documentary evidence relating to medical treatment, assistive devices, nursing care and funeral expenses, and should therefore be awarded. 4. On loss of earnings, the Claimant submits that the deceased earned Kshs. 700/- per day (Kshs. 21,000/- per month) and, having survived for four years after the accident without the ability to work, is entitled to Kshs. 1,008,000/- for lost earnings. The Claimant further urges the Court to award damages for diminished earning capacity using the prevailing minimum wage for general labourers, relying on **Regina Mwikali Wilson *v* Stephen M. Gichuhi *&* another [2015] KEHC 6809 (KLR)**. As for pain and suffering, the Claimant submits that the deceased endured prolonged pain and suffering for approximately four years before his death while completely paralysed and dependent on constant medical care. They therefore contend that an award of Kshs. 4,000,000/- under this head is warranted. Reliance is placed on **Sukari Industries Limited *v* Clyde Machimbo Juma [2016] eKLR**, where the court held that higher damages are justified where pain and suffering is prolonged before death. 5. On loss of dependency, the Claimant submits that the deceased was aged 37 years, earned Kshs. 21,000/- per month, and was survived by his wife, children and other dependants who relied on his income. Applying a dependency ratio of two-thirds and an appropriate multiplier, the Claimant urges the court to award Kshs. 4,704,000/- under this head. Reliance is placed on **Joseph Njuguna Mwaura *v* Builders Den Ltd *&* another [2014] KEHC 2538 (KLR)**, and **Benard Wichenje *&* another *v* AMK (suing as administrator of the Estate of ASM (Deceased)) [2019] KEHC 10139 (KLR)** in which a dependency ratio of two thirds was adopted. 6. On loss of expectation of life, the Claimant submits that an award of Kshs. 300,000/- is appropriate in light of inflation and the deceased's curtailed lifespan. Reliance is placed on **Patrick Muiruki Muiruri *&* 3 others *v* Ali [2018] eKLR**, where an award of Kshs. 200,000/- under this head was made. In conclusion, the Claimants submit that the Respondents were wholly liable for the accident and the deceased's death, and urge the Court to enter judgment against the Respondents at 100% liability and award the damages sought together with costs and interest. Respondents' Submissions 1. The Respondents submit that the Claimants have failed to discharge the burden of proving negligence on a balance of probabilities as required under sections 107, 108 and 109 of the Evidence Act. They contend that the mere occurrence of an accident at the workplace does not, without more, establish employer negligence. Reliance is placed on **Statpack Industries *v* James Mbithi Munyao [2005] KEHC 2043 (KLR)** for the proposition that a claimant must specifically prove the acts or omissions constituting negligence and establish a causal link between the alleged breach of duty and the accident. The Respondents submit that although the Amended Claim sets out various particulars of negligence, including failure to provide a safe system of work, failure to take safety precautions and exposing the deceased to danger, no evidence was adduced to substantiate those allegations. 2. The Respondents further submit that the deceased's witness statement dated 29th May 2018 is inadmissible as it was never adopted in evidence before the deceased's demise and the maker could not therefore be cross-examined. They contend that the Claimants did not seek admission of the statement under any of the statutory exceptions to the hearsay rule provided under section 33 of the Evidence Act. Likewise, they assert that the evidence attributed to Kennedy Mbugua Mwangi is equally inadmissible hearsay, as he was not called to testify. It is further submitted that the testimony of the 1st Claimant did not advance the Claimants' case on liability since he admitted during cross-examination that he neither witnessed the accident nor knew the deceased's duties and that his knowledge of the incident was obtained from Kennedy Mbugua Mwangi. Consequently, the Respondents submit that no admissible evidence links the accident to any breach of duty on their part. 3. The Respondents submit that they expressly denied negligence in their Defence and pleaded that the accident was solely occasioned by the deceased's own negligence, in that he failed to observe safety instructions, ignored warnings, failed to exercise due care and did not adhere to the training and safety procedures provided at the construction site. They maintain that they had provided a safe working environment. The Respondents further submit that no adverse inference should be drawn from their election not to call additional witnesses. They contend that neither the Civil Procedure Act nor the Civil Procedure Rules impose a mandatory obligation upon a party to testify or to call any particular witness. They assert that parties are at liberty to determine the evidence necessary to present their respective cases and that the Respondents relied on the witnesses they considered material. The Respondents submit that the evidence of George Mwaura Ndung'u established that the deceased had left the designated work area and had isolated himself at a corner of the construction site, where he was known to retreat to smoke bhang, when the section collapsed. Similarly, they submit that Peter Ndung'u Mwaura, the site supervisor, testified that all workers had been assigned duties at the centre of the site and that the deceased would not have been affected had he remained at his designated workstation. 4. The Respondents maintain that under section 6(1) of the Occupational Safety and Health Act, 2007, an employer is required to ensure the safety of employees only so far as is reasonably practicable, while sections 13(1) and 14 impose a corresponding duty upon employees to take reasonable care for their own safety and comply with safety measures. Reliance is placed on **Bigot Flowers Limited *v* Zakiah Kiaruthi Shaban [2019] KEELRC 1954 (KLR)**, which cited **Amalgamated Saw Mills *v* David K. Kariuki [2016] eKLR**, for the proposition that an employer cannot constantly supervise an employee undertaking ordinary manual work and that employees must also safeguard their own safety. The Respondents further rely on **Hantex Garments EPZ Limited *v* Marselina Furaha Kazungu *&* another [2020] KEHC 979 (KLR)**, where the Court held that an employee who fails to take reasonable care for his own safety is guilty of contributory negligence. Accordingly, the Respondents submit that the evidence demonstrates that reasonable safety measures, supervision and instructions were in place and that the accident resulted solely from the deceased's failure to adhere to established safety protocols. They therefore urge the Court to find that the Claimants have failed to establish any breach of duty or causative negligence on the part of the Respondents. 5. Without prejudice to the foregoing, the Respondents submit that the damages sought are excessive and unsupported by the evidence. On pain and suffering, the Respondents submit that the proposed award of Kshs. 4,000,000/- is wholly excessive and contrary to conventional awards. Reliance is placed on **Hyder Nthenya Musili *&* another *v* China Wu Yi Ltd *&* another [2017] eKLR**, where the Court observed that awards under this head are generally conventional and proposed Kshs. 200,000/- as a reasonable award in the circumstances. 6. On loss of expectation of life, the Respondents submit that there is no justification for departing from the conventional award of Kshs. 100,000/-, relying on **Hyder Nthenya Musili *&* another *v* China Wu Yi Ltd *&* another [2017] eKLR**.Regarding loss of earnings and dependency, the Respondents submit that the deceased was a casual labourer earning Kshs. 500/- per day, equivalent to Kshs. 12,000/- per month, and that the evidence established he had no family of his own. They therefore contend that a dependency ratio of one-third, a multiplier of 20 years, and a multiplicand based on the proved income are appropriate, yielding an award of Kshs. 960,000/-. Reliance is placed on **Ngania *&* 2 others *v* Adulu [2024] KEHC 4005 (KLR)** and **Beatrice Wangui Thairu *v* Hon. Ezekiel Bargetuny *&* another** (unreported) on the applicable multiplier and the need to consider the vicissitudes of life and the lump-sum nature of damages. 7. On special damages, the Respondents submit that such damages must be specifically pleaded and strictly proved. They argue that the claims relating to the cost of a helper, adult diapers, and a special ripple mattress were unsupported by documentary evidence and should therefore be disallowed. According to the Respondents, only medical expenses of Kshs. 21,000/-, hearse charges of Kshs. 15,000/- and coffin expenses of Kshs. 12,000/-, totalling Kshs. 48,000/-, were strictly proved. They further urge the Court to take into account that they voluntarily met the deceased's medical expenses before his death on humanitarian grounds. 8. In conclusion, the Respondents submit that the Claimants have failed to prove negligence on a balance of probabilities and that the evidence demonstrates that the accident was solely occasioned by the deceased's own conduct despite the safety measures put in place by the Respondents. They therefore urge the Court to dismiss the claim with costs, relying on **Thuo *&* another *v* Mugo *&* another [2026] KEELC 1416 (KLR)** for the proposition that a party ought not to benefit from his own wrongdoing. Disposition 1. The claim was initiated in the name of the late Robert Kinuthia Karanja in 2020. The 2 Claimants who are the father and mother of the deceased took over the case after the death of their son. They thus appear in this suit on the basis of being the legally recognised personal representatives of the late Robert Kinuthia Karanja (Deceased). The facts that are uncontested are that the deceased was employed by the 1st, 2nd and 3rd Respondents as a casual general worker and was assigned to work at the 4th Respondent's construction site in Limuru. It was averred that on 11th August 2017, while the decedent was working in the basement of the construction site in the course of his employment, a section of topsoil collapsed and fell on him, burying him and causing him severe injuries. The Claimants attribute this accident to the Respondents' negligence and breach of their contractual and statutory duties. The Claimants assert the Respondent failed to provide a safe place and system of work, failure to take adequate safety precautions, failure to warn of foreseeable danger, and exposing the deceased to unnecessary risk at his place of work. As a result of the accident, the Claimants assert that the deceased sustained multiple injuries including fractures of the cervical, thoracic and lumbar vertebrae resulting in paralysis of the lower limbs, an intra-abdominal injury and a fracture of the left femur. It is further stated that the deceased underwent prolonged medical treatment, remained incapacitated and dependent on continuous care, incurred medical and related expenses, and was unable to resume gainful employment before his death on 2nd January 2022. 2. The Respondents on their part assert that on the fateful day the deceased was engaged as one of the six labourers at the 4th Respondent's construction site to excavate basement trenches in the middle section where foundation columns were to be erected. According to the Respondents, at about 4.00pm the site supervisor noticed that the deceased was missing, after which a search of the site revealed that a section of the soil on one corner of the plot had collapsed. The Respondents stated that owing to the deceased's habit of retreating to secluded corners of the site to smoke cannabis, it was suspected that he may have been buried under the soil. Their suspicions were confirmed when the deceased was rescued from beneath the soil after excavation, after which first aid was administered and he was rushed to Limuru Nursing Home, and later transferred to Kenyatta National Hospital for specialised treatment. 3. In light of the foregoing, the Respondents assert that the deceased's duties did not require him to be at the corner of the site where the collapse occurred, as all excavation work was being undertaken in the middle of the plot. Having left his designated working area in the middle of the plot and retreated to the corner, the Respondents contend that the accident is not attributable to them because the deceased was on a frolic of his own. 4. When the case came up for hearing, Mr. Francis Karanja Githaku, the father to the deceased testified and produced the evidence contained in the Claimant's bundle. Amongst the statements on file is the statement of Mr. Robert Kinuthia Karanja, the deceased. At the time of trial, he had passed away. The Respondents assert the deceased's witness statement dated 29th May 2018 is inadmissible as it was never adopted in evidence before the deceased's demise and the maker could not therefore be cross-examined. The Respondents contend that the Claimants did not seek admission of the statement by the deceased under any of the statutory exceptions to the hearsay rule provided under section 33 of the Evidence Act. 5. The Evidence Act makes provision under section 33 that statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. In this case, the deceased is alleged to have died in the premises of the 4th Respondent. The circumstances of his injuries which sadly, led to his diminished life and ultimately led to his premature death are the subject of his statement. 6. It is my finding that the statement of the deceased was properly on record and in terms of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules 2024 and section 33 of the Evidence Act was admissible as evidence despite the maker not being called or cross-examined on it. Similarly, the evidence and statement of Mr. Kennedy Mbugua Mwangi can be relied on by the Court. Notwithstanding these provisions, it was not necessary to consider the statement of Mr. Kennedy Mbugua Mwangi. The Claimants and the deceased made a causal link to the Respondents in the lead to the demise of Mr. Robert Kinuthia Karanja. 7. The failure to provide a safe place and system of work, failure to take adequate safety precautions, failure to warn of foreseeable danger, and exposing the deceased to unnecessary risk contributed to the demise of Mr. Karanja. The Respondents did not know where the deceased had disappeared to, with the foreman suspecting the deceased had been buried by some soil on site. 8. Ordinarily, unless it can be demonstrated there was wilful failure by an employee to adhere to safety protocols, when a worker is buried by loose soil or a trench collapses, blame and legal liability will fall on the employer, general contractor, or site supervisor rather than the worker. Responsibility is assigned based on who failed to enforce safety rules, test soil stability, or provide required protective systems like shoring and sloping. These are the two main safety methods used to stop dirt from collapsing into a hole or trench. Sloping cuts the dirt wall back at a safe, slanted angle, while shoring uses physical panels and braces to hold the vertical walls in place. Both protect workers from dangerous cave-ins. For soil to be carelessly deposited at a work site or walls unbraced, there would be liability upon the owner. The liability extends beyond the work-injury paradigm. 9. In this case, the Claimants assert the deceased suffered before his death in 2022. Mr. Karanja sustained multiple injuries including fractures of the cervical, thoracic and lumbar vertebrae resulting in paralysis of the lower limbs, an intra-abdominal injury and a fracture of the left femur. His father testified that the wife to the deceased ran away and he and his wife were left to fend for the deceased and the children left behind. The parents however did not name the children as dependants in essence denying them any recompense. 10. Be that as it may, the failure to ensure the workplace was safe for all staff, leads to the inevitable conclusion the Respondents were criminally negligent and therefore liable for the injuries sustained by the deceased. He suffered from August 2017 to his demise in 2022, a period of about 5 years. For the work injury suffered, the Claimants are entitled to recover for the estate of the deceased general damages which the Court assesses at Kshs. 1,000,000/- and the proved special damages of Kshs. 48,000/- comprising of medical expenses of Kshs. 21,000/-, hearse charges of Kshs. 15,000/- and coffin expenses of Kshs. 12,000/-. 11. The deceased lost capacity to earn and for the 5 years of his life he had no income and therefore the loss of future earnings was proved. The deceased was 37 years at the time of his death and was earning roughly Kshs. 500/- per day, equivalent to Kshs. 12,000/- per month. The Respondents asserted that a dependency ratio of one-third, a multiplier of 20 years, and a multiplicand based on the proved income are appropriate, yielding an award of Kshs. 960,000/-. The vicissitudes of life and the lump-sum nature of damages mean that the lumpsum of Kshs. 960,000/- cannot be enhanced. This sum conceded by the Respondents is what the Claimants will recover under this head. For pain and suffering the Claimants will recover Kshs. 500,000/- granted the period during which the deceased suffered. The Claimants will recover costs for the suit and shall also have interest on sums awarded at court rates from the date of judgment till payment in full. 12. In the final analysis, I enter judgment for the Claimants against the Respondents jointly and severally for:- 13. General damages - Kshs. 1,000,000/- 14. Special damages - Kshs. 48,000/- 15. Loss of earning - Kshs. 960,000/- 16. Pain and suffering – Kshs. 500,000/- 17. Interest on the sums in i), ii), iii) and iv) above at court rates from the date of judgment till payment in full. 18. Costs of the suit. It is so ordered. **Dated and delivered at Kisii this 29th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**