https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8181

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E218 OF 2025** ## KHETSHI DHARAMSHI & CO. LIMITED…........................APPELLANT ## VERSUS ## CALEB OCHIENG OKWARO…………………..………….RESPONDENT **(*Being an appeal from the decision of Honourable K. D. Ole Keiwua (CM) delivered on 7th February 2025 in Nairobi CMCC No. 4586 of 2019)*** **JUDGMENT** 1. Having been dissatisfied with the above mentioned decision, the Appellant filed this appeal and preferred the following grounds vide the Memorandum of Appeal dated 26th February 2025. That Learned Magistrate erred; 2. *In law and fact by finding that the appellant breached its statutory duty of ensuring the respondent worked in a safe environment and finding the appellant 100% liable for the accident in view of the evidence on record.* 3. *In law and fact in failing to apportion liability and disregarded the appellant’s submissions while arriving at his judgment.* 4. *In law and fact by making an award of general damages that was manifestly excessive in the circumstances thereby occasioning miscarriage of justice.* 5. *In law and fact and ended up misdirecting himself in awarding exorbitant quantum of damages by failing to appreciate and be guided by the prevailing range of comparable awards.* 6. *In law and fact in making an award for damages for alleged injuries when the evidence tendered in support of the same was purely hearsay evidence which was not even corroborated.* 7. *In law and fact in failing to find that the respondent had not proved any of the particulars of negligence or breach of contract or statutory duty set out in the plaint.* 8. *In law and fact in failing to apply proper legal principal regarding liability and quantum thus arriving at a bad decision.* 9. It thus prayed that that the appeal be allowed with costs and the judgment of the lower court be set aside in its entirety, and that this court do substitute its own findings. The appellant also prays for costs of the appeal. 10. Directions were taken to have the appeal disposed of by way of written submissions. The parties complied with the court’s directions. The Appellant’s submissions are dated 3rd December 2025 while the respondent’s are dated 3rd February 2026. 11. The Appellant submitted that the trial magistrate erred in holding the appellant liable at 100% yet the respondent never proved the same. The appellant urged this court to apportion liability in the ratio 30: 70 between the appellant and the respondent respectively arguing that the respondent failed to take reasonable care for his own safety. 12. The appellant further submitted on quantum praying for reduction of the award of from Kshs. 400,000/= awarded by the trial court to a sum of Kshs. 200,000/=. ***Analysis and Determination*** 1. This Court has carefully considered the Record of Appeal, the parties’ respective submissions, the authorities cited as well as the law and the only issue that falls for this Court’s determination is whether the trial court erred in its finding on liability and whether the award of general damages was excessive. 2. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence and consider arguments by parties and apply the law thereto, and, make its own determination of the issue or issues in controversy. Except however, that it should give due allowance to the fact that it neither saw nor heard the witnesses’ testimonies. 3. This was aptly stated by the Court of Appeal in the case of ***Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123*** as follows: ***“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 2. It is not in dispute that the respondent was employed by the appellant. The respondent testified that the appellant by its directors, supervisors and/or servants negligently and in breach of its statutory duty assigned him duties near the galvanizing line and during this period, he was exposed to lead fumes which affected his health. He further testified that he was only provided with boots, gloves and dust coat which he wore religiously as he performed his duties. He stated that the appellant failed to provide him with a gas aspirator since he was working in the laboratory. The appellant did not avail any documentary evidence to prove that it had supplied the respondent with all requisite protective gears for the task that he had been assigned. The appellant’s witness did not demonstrate that the respondent breached any safety regulations in the course of executing his duties. The appellant failed in its statutory obligation under section 29 of the Factories Act, Cap 514 of the Laws of Kenya. 3. In the case of **Simba Posho Mills Limited v Fred Machira Onguti, Nakuru HCCA No. 65 of 2002**, the respondent suffered crush injuries on his fingers while operating a machine at work due to the failure by the appellant to provide a safe working environment. The Hon. L. Kimaru, J. (as he then was) stated thus: ***“That the appellant was under a statutory obligation to provide the respondent with a safe working environment which included not exposing him to tasks which could result in his sustaining injury. The liability imposed upon the appellant is statutory. The breach of the statutory liability means that the appellant was strictly liable for any injuries its employee sustains in the course of his employment.”*** 1. The liability of an employer towards his employee attaches once an employee is injured in the course of employment as a result of failure to ensure the duty of care expected from the employer. From my analysis of the evidence, it is clear that the respondent was exposed to an unsafe working environment and the appellant was rightly found liable at 100%. The trial court cannot be faulted on its finding on liability. 2. On the issue of quantum, the appellant does not dispute the injuries that the respondent sustained. They only challenged the award of Kshs. 400,000/= as being excessive and proposed a lower award of Kshs. 200,000/=. In their submissions before the lower court, the appellants had proposed the same figure of Kshs. 200,000/= while the respondent had proposed Kshs. 400,000/=. 3. The respondent sustained backache, poor eye vision, joint pains, loss of appetite, abdominal pains, recurrent poor memory, recurrent poor hearing, reduced libido, eyes are photophobic, elbow joints movements are tender, shoulder joints movements are tender, knee joints movements are tender and the lumbar-sacral region is tender on flexion. 4. As rightly submitted by the appellants, it is trite law that in determining quantum, comparable injuries should attract comparable awards in as much as no two cases are alike. The Court of Appeal in **Stanley Maore V Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR** stated thus: *“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”* 1. The award of damages is an exercise of discretion by the trial court based on the evidence before it. 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. 2. In the end, having considered the comparative jurisprudence in this area and recent decisions, I find no justification to interfere with the learned trial magistrate’s exercise of discretion in assessing the damages awarded to the respondent based on the evidence placed before her. 3. In the upshot, I do hereby make the following orders: - 4. ***The lower court’s findings on both liability and quantum in its judgment dated 7th February 2025 are hereby upheld.*** 5. ***The appeal therefore lacks merit and is hereby dismissed with costs.*** ***Dated, signed, delivered virtually and uploaded to the Case Tracking System this 11th day of June 2026.*** **DAVID MBURU** **JUDGE** **11/06/2026**