https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1688

Musotsi v Ima Hauliers Ltd (Appeal E010 of 2024) [2026] KEELRC 1688 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1688 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Appeal E010 of 2024 DN Nderitu, J June 18, 2026 Between Simon Otisa Musotsi Appellant and Ima Hauliers Limited Respondent (Being an appeal arising from the judgment and decree of Hon. Maundu (Chief Magistrate) delivered on 8th July 2024 in Bungoma Chief Magistrates’ Court ELRC No.285 of 2016) Judgment I. Introduction 1.In a judgment dated and delivered on 8th July 2024, the lower trial court dismissed the Appellant’s claim (the Claimant in the lower court) with costs to the Respondent (the Respondent in the lower court) 2.Dissatisfied with the judgment, the Appellant, through Omundi Bw’Onchiri, filed a memorandum of appeal dated 18th July 2024 seeking that the appeal be allowed and the suit in the lower court be allowed with costs. 3.The appeal is based on the following grounds –i.That the Honourable Magistrate erred in law and fact when he failed to find that the appellant had proved his case on a balance of probability hence occasioning a miscarriage of justice.ii.That the Hon. Magistrate erred in law and fact when he failed to find that the Respondent, as the Employer of the appellant, owed him a duty of care while on duty.iii.That the Respondent, having admitted that the Motor Vehicle Registration No. KTCA 315 D Make new Holland Type Wheel /Tractor had defects prior to the road traffic accident on the 26/3/2016, the Hon. Magistrate erred in both law and fact when he absolved the Respondent from blame, hence occasioning a miscarriage of justice.iv.That the judgment is poorly reasoned, hence occasioning a miscarriage of justice. 4.The Respondent is opposed to the appeal through L.G. Menezes & Company Advocates. 5.By consent, the court directed that the appeal be canvassed by way of written submissions. Mr Bw Onchiri for the Appellant filed written submissions dated 15th October 2025 and Ms Mcheso for the Respondent filed written submissions dated 3rd November 2025. II. Submissions By Counsel 6.Counsel for the Appellant submitted globally in support of the appeal. 7.It is submitted that the trial court erred in dismissing the Appellant’s claim despite evidence demonstrating that he sustained injuries in the course of his employment with the Respondent. Counsel contends that the learned magistrate failed to appreciate that the Respondent, as the employer, owed the Appellant a duty of care and was responsible for ensuring that the tractor assigned to him was mechanically sound and safe for use. 8.It is further submitted that on 26th March 2016 the appellant, while lawfully engaged in his duties and operating a New Holland tractor registration number KTCA315D/316D, the tractor developed mechanical problems, veered off the road and overturned, whereby the Appellant was injured. 9.It is submitted that the Appellant testified that before the accident the tractor had exhibited defects, including switching off on its own. According to counsel, the Appellant had reported the defect to the supervisor, one Athman. Despite being aware of the mechanical defects, the supervisor allegedly authorised the Appellant to continue operating the tractor. 10.Counsel submitted that while the Appellant was driving at a moderate speed, the engine switched off, rendering it uncontrollable resulting in the accident wherein the Appellant was injured. 11.It is further submitted that the Respondent’s witness admitted in cross-examination that he was merely a clerk and had no responsibility in the mechanical maintenance of the tractor. Consequently, the evidence regarding the tractor’s defective condition and the supervisor’s knowledge thereof remained substantially unchallenged. 12.Counsel faulted the trial court for failing to consider the evidence that the tractor had previously stalled in the presence of the supervisor who nonetheless directed the Appellant to continue operating it. It is further submitted that the mechanical defect was the proximate cause of the accident and that the Respondent was negligent in permitting the continued use of unroadworthy equipment. 13.Counsel cited Ima Hauliers v Mohammed Nyongesa Murende [2012] KEHC 4735 (KLR) in submitting that the duty to keep equipment in good mechanical condition rests with the owner and that an employer owes a duty of care to ensure the safety of employees operating the same. Counsel further submitted that an employer cannot evade liability where a mechanical defect had been reported and no corrective measures were taken. 14.Counsel submitted that the Respondent breached its duty of care by failing to provide a safe system of work, failing to warn the Appellant of the dangers associated with operating the defective tractor, failing to adequately supervise him, failing to take reasonable measures to ensure his safety, and exposing him to a foreseeable risk of injury despite knowledge of the tractor’s defective mechanical condition. 15.Counsel cited Boniface Muthama Kavita v Canton Manufacturers [2015] eKLR in supporting the proposition that the employer –employee relationship creates a duty of care requiring the employer to take reasonable precautions in providing a safe work environment that does not expose employees to unnecessary risk. 16.Counsel therefore urged the Court to find that the Respondent was negligent, that the trial court erred in dismissing the suit, and to allow the appeal by setting aside the judgment of the lower trial court substituting therefor a judgment in the favour of the Appellant as prayed in the plaint. 17.On the other hand, counsel for the Respondent submitted on liability and quantum in opposition of the appeal. It is submitted that the appeal lacks merits and the Court is urged to uphold the judgment of the trial court. Counsel argued that as a first appellate court this Court is required to re-evaluate the evidence on record and arrive at its own conclusions, guided by the principles set out in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 but, bearing in mind that it neither saw nor heard the witnesses testify. 18.On liability, counsel submitted that negligence must be proved and cannot be presumed citing of Sections 107 and 109 of the Evidence Act. Counsel contended that the Appellant failed to discharge this burden and did not adduce sufficient evidence to prove that the accident was caused by any negligence on the part of the Respondent. Counsel submitted that instead the evidence showed that the tractor had no mechanical defects prior to the accident and that the Appellant lost control of the vehicle due to his own negligent acts. Counsel pointed to the testimony of the Respondent’s witnesses, including the mechanic, and the documentary evidence in the form of maintenance records and inspection certificates confirming that the tractor had been serviced and was in good mechanical condition prior to the accident. 19.Counsel further argued that the Appellant failed to call any independent witness to corroborate his allegations regarding the alleged mechanical defect of the tractor. Citing Sally Kibii & another v Francis Ogaro [2012] KEHC 1874 (KLR), counsel argued that the failure by the Appellant to call witnesses in support of allegations of negligence was fatal to his case. According to counsel, the burden of proving negligence was on the Appellant and he failed to discharge it. 20.Counsel further submitted that the Appellant pleaded several particulars of negligence, including failure to provide a safe work environment, but failed to adduce evidence in support of those allegations. Counsel argued that an employer is not a guarantor of an employee’s safety and is only required to take reasonable care. 21.Citing Japheth Natse Ifedha v Collindale Security Company Limited [2014] eKLR, counsel submitted that an employer’s duty is taking reasonable care and that an employee cannot be compensated for an injury merely because his work involved danger. Counsel invoked Section 13(1)(a) of the Occupational Safety and Health Act, arguing that employees also bear a duty to ensure their own safety and to take reasonable precautions while at work. 22.Counsel further relied on P.J. Dave Flowers Ltd v David Mwai Wamalwa [2018] eKLR wherein the Court emphasized that particulars of negligence and breach of duty must be specifically pleaded and proved and, that liability cannot be imposed in the absence of evidence establishing causation and blameworthiness. It is therefore submitted that the Appellant failed to establish any nexus between the alleged mechanical defect on the tractor and the accident thereby failing to prove negligence on the part of the Respondent. 23.On quantum, counsel contended that should the Court hold the Respondent liable, an award of Kshs60,000 would constitute adequate compensation for the soft tissue injuries sustained by the Appellant. In support of this position, counsel cited several decisions – HB (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR, LNK (Minor suing through CNK as next friend) & 2 Others v Simon Gatuni Njuki [2022] eKLR, and James Kwanya Rege v LA (Minor suing through her father and next friend GAA) [2022] eKLR. In those decisions, the courts awarded damages ranging between Kshs60,000 and Kshs80,000 for comparable soft tissue injuries as those suffered by the Appellant. Counsel submitted that the injuries sustained by the Appellant were less severe than those in the cited authorities and therefore do not justify a higher award. 24.Counsel submitted in opposition to the claim for special damages, arguing that although the Appellant pleaded special damages of Kshs6,900/=, he failed to strictly prove the same. It is submitted that only a receipt for Kshs1,000 was produced, and even that amount was not sufficiently proven. Counsel therefore submitted that parties are bound by their pleadings and that special damages must be specifically pleaded and strictly proved. 25.Counsel therefore urged the Court to find that the Appellant failed to prove negligence on a balance of probabilities, uphold the findings of the trial court on both the liability and quantum, dismiss the appeal with costs, and affirm the judgment of the lower court. III. Issues For Determination 26.The factual background of this matter is that at all material times the Appellant was an employee of the Respondent in the position of a tractor driver. He was assigned tractor Registration Number KTCA 316D that was involved in an accident on 26th March 2016 when the Appellant was ferrying sugarcane from Musokoto village, in Busia County, to Mumias Sugar Mill Company. The Appellant’s case was that the tractor developed a mechanical problem and abruptly shut-off the engine and then it rolled and leaned on the roadside. The Appellant sustained injuries in the accident and was treated at Matungu Sub-County Hospital and thereafter at St. Mary’s hospital Mumias. He pleaded that he sustained injuries comprising haematruck right upper arm and dislocation of the right clavicular scapula right joint. The injuries were fully healed but with a probability of future early osteoarthritis of the left shoulder. He sought special damages of Kshs6,900/= and general damages. 27.In the memorandum of claim filed in the lower court – pg. 5 of the record of appeal - the Appellant pleaded that the Respondent failed to provide a safe working environment, failed to warn the Appellant of the dangers involved with the work, failed to supervise the appellant in performing his duties, failed to ensure the safety of the Appellant, failed to heed to pleas for maintenance of the tractor by the Appellant, thereby exposing the Appellant to injury. 28.In the defence filed in the lower court – pgs. 44-49 of the record of appeal – the Respondent pleaded that the Appellant engaged the tractor in free-gear while on a slope resulting in the accident. DW1 testified that the Appellant was speeding as he witnessed the same while aboard a matatu, wherein he was sitting in the front seat. DW1 stated that the tractor’s battery had been changed on 18th March 2016 and there were no problems with the braking system. It was the Respondent’s case that the certification of the examination and test of the tractor showed that the tractor had no pre-accident defects. DW2, a mechanic, also testified that the tractor had been serviced on 19th March 2016 and the next service was scheduled for 30th March 2016. The Respondent maintained that the Appellant was thus negligent in driving and operating the tractor and should be liable for causing the accident. 29.Arising from the foregoing, the issues for determination by this court are the following –i.Whether the learned trial magistrate erred in law and fact on the finding and holding on liability and quantumii.What orders should this court make in the disposal of this appeal?iii.Costs IV. Liability 30.The court finds that it was proved that there was an employer-employee relationship between the parties and that the tractor involved in the accident belonged to the Respondent. It is also factual that an accident occurred, and the Appellant was injured as per the medical report availed in the trial. 31.The Appellant faulted the trial court for failing to find that the Respondent owed him a duty of care as the owner of the tractor. 32.In the trial the Appellant testified that the tractor had earlier switched-off while he was picking sugarcane in a farm and the tractor had to be pushed to restart. He testified that he had informed his supervisor accordingly. He admitted that he drove the tractor well aware of the alleged defects. He stated that he could not stop the tractor from rolling – pgs. 134 -137 of the record of appeal. 33.DW1, Peter Nyota, a clerk of the Respondent, produced the Certificate of Examination for the Tractor. He alleged that the Appellant was negligent and caused the accident – pg. 29 of the record of appeal. In cross-examination, DW1 told the court that he was not the mechanic, he claimed having witnessed the Appellant speeding. He stated that the certificate of the condition of the tractor showed that there were no pre-accident defects. He stated that the Appellant was free-wheeling to save on fuel and that what had been changed on the tractor was not the brakes but the battery. Mr. Fredrick Okanga Omuchei (DW2) did not testify in court but the parties agreed to adopt his testimony contained in the witness statement dated 28th November 2011 – pg. 49 of the record of appeal – as his testimony. 34.DW1 conceded that he did not know whether the brakes failed leading to the accident. Moreover, DW1 could not establish the speed at which the Appellant was driving the motor vehicle when he was in a different tractor or whether the Appellant was free-wheeling. All these were assumptions. In relying on the testimony of DW1 on the speed and the circumstances leading to the accident, the trail court failed to appreciate that the Appellant was driving alone and only he could testify on the circumstances leading to the accident. 35.The Appellant testified that the tractor had stalled on the same day, and pushed to restart yet his supervisor allowed him to drive the tractor. 36.Counsel for the Appellant relied on the decision of the High court in Ima Hauliers Limited v Mohammed Nyongesa Murende [2012] KEHC 4735 (KLR) wherein it was held that – The duty to keep a vehicle in a good mechanical condition lies with the owner of the vehicle. The driver cannot be held liable for not reporting a defect. In the case before me there is evidence that the defect was reported beforehand. The owner of the vehicle has a duty to put in place measures to check and rectify defects of vehicles and especially those used on heavy duty and commercial transport like transporting sugarcane. These are day-to-day assignments which call for highly serviced vehicles. The owner cannot use the failure by driver to report a defect as a defence. The owner owes a duty of care under common law to the driver and any other person in the vehicle to ensure their safety as they work. Failure to service the vehicle exposed the Respondent to risk. The issue of contributory negligence does not arise in the instant case. 37.The defective mechanical issues were reported by the Appellant to one Asman, the supervisor. The Respondent did not deny that the said supervisor was an employee of the Respondent. He was not called as a witness to refute that the mechanical defects on the tractor were reported to him by the Appellant. There is no evidence that the reported defects were rectified before the tractor was sent out to the farms to ferry sugarcane. The supervisor was under an obligation to supervise the Appellant to ensure that the tractor was inspected before allowing the Appellant to operate the same. 38.The court finds and holds that the Appellant proved his case on a balance of probabilities on liability consistent with Section 109 of the Evidence Act – The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 39.Further, the court finds and holds that the employer was obligated to take all reasonable precaution to ensure the safety of the employee, by providing a working environment that did not expose the employee to unreasonable risk under the Occupational Safety and Health Act (OSHA). Section 6 – thereof provides that – (1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace. (2) Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes(c)the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed. 40.The Court is persuaded by the holding in the decisions cited by counsel for Appellant. In Boniface Muthama Kavita -vs- Canton Manufactures (2015) e KLR it was held that –The relationship between the appellant and the respondent as employer and employee creates a duty of care. The employer is required to take all reasonable precautions for the safety of the employee to provide an appropriate and safe system of work which does not expose the employee to unreasonable risk. 41.However, the court finds that the Appellant knew that the tractor was not in sound mechanical condition the same having switched-off the engine earlier and in the day and yet he blindly followed his supervisor’s negligent instructions and was thus responsible for some contributory negligence. Evidently, the Appellant contributed to the occurrence of the accident. The court holds him responsible for contributory negligence at 20%. V. Quantum 42.The general method of approach in assessment of general damages is that comparable injuries should, as far as possible, be compensated with comparable awards. 43.The appellant pleaded that he sustained a haematruck of the right upper arm and a dislocation of the right clavicular scapula right joint. The medical report by Dr Owola dated 9th May 2016 pg.11 of the record of appeal – indicates that the Appellant had a dislocation of the right clavicle scapula joint that had fully healed with no restriction of the right arm. There is a comment in the report that the appellant may develop early osteoarthritis of the left shoulder in the future. 44.In the trial court the Appellant’s counsel proposed a sum of Kshs500,000/= as general damages for pain and suffering and cited several authorities, among them Lucy Ntibuka v Bernard Mutwiri & others [2007] KEHC 3272 (KLR) in support. 45.In the above case, the injuries sustained by the plaintiffs were head injuries; lacerations on the lateral side of the right eye and lacerations and a cut wound on the left arm (elbow) that had healed. The plaintiff therein was awarded Kshs500,000 in 2007. The Respondent submitted that the Appellant only suffered soft tissue injuries and an award of Kshs60,000 would be appropriate. The Respondent’s counsel cited HB (Minor suing through mother and next friend DKM v Jasper Nchonga Magari & Another (2021) eKLR in which the plaintiff had suffered cut wound in the occipital region, the neck, the right ankle and foot, and other serious injuries, but the court awarded only Kshs80,000 in 2022. 46.As per the medical report adduced by the Appellant, the dislocation healed with no restriction on movement. The court finds that an award of Kshs150,000 is sufficient in the circumstances, considering the inflation factor, for the fair and reasonable general damages. Accounting for the contributory negligence of 20%, the Appellant is awarded Kshs120,000/=. VI. Future Medical Expenses 47.On future medical expenses, counsel for the Appellant proposed a sum of Kshs150,000/=, alleging that he still needs treatment and is on medication. Counsel relied on Traom Limited & another v Hassan Mohamed Adam (2009) eKLR and Florence Njoki Mwangi v Peter Chege Mbitiru (2014) eKLR. 48.A claim for future medical expenses or such other eventualities must be pleaded and proved in the same manner as a claim for special damage. There was no indication in the medical report of the amount of medical expense that the Appellant would incur in the future and thus this claim was not proved. VII. Special Damages 49.The Appellant pleaded for kshs6,900 for medical report – (Kshs5,000), treatment expenses (Kshs1400), and copy of records (Kshs500/=). The Appellant testified in the trial that the Respondent had paid for all the medical expenses that he incurred – pg.137 of the record – and thus he was not entitled to the award of the same. No receipt for the medical report of Kshs5000 was availed and thus, the Appellant did not prove the same. He adduced a receipt for the copy of the records of KShs500/= - pg.32 of the record). In terms of the receipt of Kshs1,000/= produced the same was not pleaded in the claim. Therefore, the Appellant only proved the claim for Kshs500/= as special damages for the copy of the record. 50.Consequently, the appeal succeeds to the above extent and the court shall issue orders as hereunder. VIII. Orders 51.Flowing from the foregoing, the court makes the following orders –a.The entire judgement of Hon. Maundu (Chief Magistrate) delivered on 8th July 2024 in Bungoma Chief Magistrates’ Court ELRC No.285 of 2016 is hereby set aside and substituted with the following orders –i.The Appellant is awarded a sum of Kshs120,000/= as general damages and Kshs500 as special damages.ii.The Appellant is awarded costs of the trial in the lower court and the costs of this Appeal.iii.Interest on the awarded sums shall be at court rates from the date of this judgment. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 18TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGE