Johnson Evan Gicheru, Richard Otieno Kwach, John Mwangi Gachuhi
Arkay Industries Limited v Abdalla Amani  eKLR
Arkay Industries Limited v Abdalla Amani
Court of Appeal, at Nakuru March 1, 1990
Gachuhi, Gicheru & Kwach JJ A
Civil Appeal No 22 of 1988
(From a Judgment of the High Court al Eldoret (Aganyanya J) dated
24th April 1987 in Civil Case No 81 of 1986)
Negligence – duty of care – duty of care owed to factory employees – section 23(1) of the Factories Act (Cap 514) – whether the section imposes strict liability in negligence.
Negligence - contributory negligence – where defendant breaches his statutory duty – plaintiff takes a risk created by the breach – when such assumption of risk may amount to contributory negligence – what contributory negligence consists of.
Employment Law – factory employees – obligation to provide safe working conditions for factory employees – section 23 (1) of the Factories Act (Cap 514).
Damages – assessment of damages – judicial discretion in assessing damages – when a superior court can interfere with a lower court’s assessment of damages - general damages - for pain, suffering and loss of amenities - amputation of the fingers - measure of damages.
The appellant was engaged in the processing of edible oil and had employed the respondent as an expeller cleaner. In the course of duty, the respondent had to stand on a table and pour oil cake into the processing machine. Some oil cake would usually pour on the table making it slippery. On the material day the respondent slipped and his left hand fell into the moving machine which was not fenced. His left midfinger and index finger were amputated.
The trial judge found that the machinery in question was of the nature that required compliance with section 23(1) of the Factories Act (cap 514). The appellant was held liable for the respondent’s injuries but the latter was also found contributorily negligent because he had not taken any steps to minimize the risk presented by the slippery table. The trial judge awarded the respondent Kshs 200,000 as general damages but deducted Kshs 50,000 on account of his contributory negligence.
The appellant in this appeal argued that the respondent had a duty to clean the table before climbing onto it, and that the respondent had no business being in contact with the said machinery. The appellant submitted that even if it was negligent, liability should have been opportioned equally. It was contended that section 23(1) of the Factories Act (Cap 514) did not impose strict liability and the damages awarded were too high.
The respondent cross-appealed stating that section 23(1) of the Factories Act (Cap 514) imposed strict liability and the trial judge should not have found the respondent guilty of contributory negligence after finding that the appellant had breached that section.
1. The prime concern of section 23(1) of the Factories Act (Cap 514) is the safety of every person employed or working on the premises in which the dangerous part of any machinery is situated. The section imposes an obligatory duty to ensure such safety in the manner provided therein.
2. Section 23(1) of the Factories Act (Cap 514) does not, however, imposestrict liability in negligence.
3. Where a plaintiff has taken a risk created by the breach of a statutory duty by a defendant, that risk may amount to contributory negligence if it is one which a reasonable prudent man in the position of such a plaintiff would not take.
4. In a case such as this, contributory negligence consists of the absence of that ordinary care a sentient being ought reasonably to have taken for his own safety.
5. The assessment of damages is essentially a matter of judicial discretion.
6. For a superior court to interfere with a lower court’s assessment of damages, it must be shown that the sum awarded is demonstrably wrong
or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred.
7. Reflecting on the factors in this case, this Court could not say that the award of general damages to the respondent by the trial judge was manifestly excessive as to warrant reduction.
1. Wakelin v London and South Western Railway Company (1887) 12 AC 41
2. Kigaragari v Aya  KLR 273
3. Shabani v City Council of Nairobi  KLR 516
Factories Act (cap 514) section 23(1)