[2005] KEHC 2462 (KLR)
The High Court found that while the respondent was injured using a defective panga provided by the appellant, the evidence did not establish negligence but rather breach of statutory duty by the employer. However, the respondent was also aware of the defect and failed to exercise due care, amounting to contributory...
Source-derived case information.
- Citation
- [2005] KEHC 2462 (KLR)
- Parties
- Appellant: Sotik Tea Co. Ltd; Respondent: Philip Cheruiyot Malel
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 243 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed in part; damages reduced by 50% for contributory negligence.
- Legal Topics
- Workplace Injury, Employer Liability, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sotik Tea Co. Ltd
Appellant
Philip Cheruiyot Malel
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was negligent in providing a defective implement to the respondent.
- 2 Whether the respondent contributed to his own injury and the extent of such contribution.
- 3 Whether the magistrate erred in failing to apportion liability for contributory negligence.
Ratio Decidendi
The High Court found that while the respondent was injured using a defective panga provided by the appellant, the evidence did not establish negligence but rather breach of statutory duty by the employer. However, the respondent was also aware of the defect and failed to exercise due care, amounting to contributory negligence. The magistrate erred in not addressing the pleaded issue of contribution. The court apportioned liability equally, reducing the damages awarded to the respondent by 50%.
Court Disposition
Appeal allowed in part; damages reduced by 50% for contributory negligence.
Orders
- The respondent's damages are reduced to KES 35,000.
- Each party to bear their own costs of the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
Civil Appeal 243 of 2002
SOTIK TEA CO. LTD ……………………………………….…………. APPELLANT
VERSUS
PHILIP CHERUIYOT MAREL ………………………………..……. RESPONDENT
JUDGMENT
The Respondent, Philip Cheruiyot Malel is an employee of the appellant Sotik Tea Co. in their Momere Tea Estate where he picks tea. He sued the appellant before Kisii Senior Resident Magistrate Court for damages due to a cut he sustained while on duty. He told the court that on 30th August 1994 he was told to go and cut a tree with a panga. While doing so he cut himself on the right foot sustaining a deep cut. He said the handle of the panga was loose.
Appellant did not call any evidence though it had filed a written defence. The learned magistrate in her defence found that the defendant was negligent and awarded the respondent shs.70000/= as general damages.
Mr. Bosire submitted that the court erred in finding that the appellant was negligent. He further submitted that the court erred in not apportioning contribution which was pleaded in the defence and no reply to the defence filed.
Appeal was opposed and court told that the magistrate reached a proper findings.
Indeed in par. 7 of the plaint the Respondent had pleaded negligence. However from his evidence there was no proof of negligence by the appellant. The respondent cut himself. It was not the appellant or his agent who inflicted injuries on him.
The magistrate therefore erred to find that the appellant was negligent. The magistrate in concluding that the appellant was negligent found that the Respondent was assigned duties he was unfamiliar with and given a defective implement. In his evidence he said the handle of the panga he was given was defective. This was breach of Statutory duty and not negligence.
He should have been given a panga which was proper. Appellant did not offer any evidence to contravert that of the Respondent. Thus the appellant breached his duty and that led to the Respondent sustaining injuries.
The magistrate did not touch on the issue of contribution though this was pleaded in the defence. The Respondent had not filed any defence to that issue as required by order 8 rule 16 CPR. It is clear the respondent contributed to the tragedy. He was the one who was using the panga and he was aware the handle was loose. He had a duty to be careful and it seems he did not do this. I will put his contribution to 50%.
In the circumstances I allow the appeal to the extent that I find that the Respondent contributed to the accident and apportion contribution as 50% - 50%.
The amount of damages is therefore reduced to shs.35,000/=.
Each party will bear his own costs of this appeal
Dated this 11th day of April 2005
KABURU BAUNI
JUDGE
Mr. Bosire for Appellant
N/A for Respondent