[2009] KEHC 2418 (KLR)
The court found that the defendant, having failed to appear or defend the suit, left the plaintiff's evidence unchallenged. The plaintiff established that he was injured in the course of employment due to the defendant's negligence in providing defective equipment and failing to ensure a safe working environment....
Source-derived case information.
- Citation
- [2009] KEHC 2418 (KLR)
- Parties
- Plaintiff: Peter Mwihia Karanja; Defendant: Ezemak Refrigerators & Contractors Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 764 of 2002
- Procedural Posture
- Civil Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
- Outcome
- judgment for the plaintiff
- Judges
- JL Osiemo
- Legal Topics
- Employer Liability, Workplace Accidents, Negligence, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwihia Karanja
Plaintiff
Ezemak Refrigerators & Contractors Ltd
Defendant
Procedural Posture
Civil Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
Legal Issues
- 1 Whether the defendant was negligent in failing to provide a safe working environment for the plaintiff.
- 2 Whether the defendant is liable for the injuries sustained by the plaintiff during the course of employment.
- 3 What is the appropriate quantum of damages payable to the plaintiff.
Ratio Decidendi
The court found that the defendant, having failed to appear or defend the suit, left the plaintiff's evidence unchallenged. The plaintiff established that he was injured in the course of employment due to the defendant's negligence in providing defective equipment and failing to ensure a safe working environment. The court accepted the medical evidence of a fractured right femur and other injuries. Liability was established on the basis of unrebutted evidence and the employer's duty of care. The court assessed special damages at KES 6,570 as proved, and general damages at KES 800,000, referencing a comparable High Court authority. Judgment was entered for the plaintiff for the total sum...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff against the defendant for KES 806,750.
- Defendant to pay costs of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 764 of 2002
PETER MWIHIA KARANJA…………………………………….PLAINTIFF
VERSUS
EZEMAK REFRIGERATORS & CONTRACTORS LTD……….DEFENDANT
JUDGMENT
This claim arises out of an accident which occurred on 11th November 2000 where the plaintiff in a group of other workers at the defendant’s premises were removing a Machine from the lorry to the workshop the hook holding the container broke and the container crashed into the plaintiff breaking his leg. The plaintiff filed this suit against the defendant claiming special and general damages plus costs of the suit and interest.
The defendant was served with summons but failed to enter appearance nor file a defence. The plaintiff sought and obtained interlocutory judgment on 15th August 2007 and the suit was set down for formal proof.
The plaintiff’s case was that he was employed by the defendant as a driver. On the 11th November 2000 while on duty a container arrived and the defendant requested him and other workers to remove the container from the lorry. While removing the container the hook that held the container broke which caused the container crash upon him and broke his leg. He was rushed to the hospital for treatment. First he was attended to at Mater Hospital and finally Kenyatta National Hospital. According to the medical report the plaintiff had sustained a fracture right femur which was reduced and held with a plate and screws, soft tissue injuries to the right leg and blunt injuries to the shoulder. This was confirmed by the medical report prepared by Dr. Njiru who testified on behalf of the Plaintiff.
The plaintiff blamed the accident on the defendant for negligence. The particulars of negligence were stated as follows:-
(a) Instructing the plaintiff to work with a defective removal machine.
(b) Failing to maintain the removal machine in a safe state.
(c) Failing to provide the plaintiff with personal protective equipment.
(d)Causing the plaintiff to work with a dangerous machine and (e) causing the accident.
The evidence of the plaintiff having not been rebutted, liability is proved.
The next issue is the assessment of damages. Special damages were proved at Shs 6570/. On general damages counsel for the plaintiff suggested a figure of Shs. 2,000,000/= and cited one authority HCC No 37 of 1992 Leonard Kinuthia vs. William Sima Kiboros in which the plaintiff sustained a commuted fracture of the right femur and soft tissue injuries and was awarded Shs. 700,000/=. Having considered the injuries sustained by the plaintiff in the cited authority and the injuries suffered by the plaintiff in the instant case and the damages awarded, it is my considered opinion that a figure of Shs. 800,000/= would be adequate compensation for pain suffering and loss of amenities by the plaintiff.
Accordingly I enter judgment for the plaintiff and against the defendant for Shs. 806,750/=, plus costs and interest.
Delivered and dated at Nairobi this 9th day of June 2009
J. L. A. OSIEMO
JUDGE