UNIVERSITY OF EMBU

SCHOOL: SCHOOL OF LAW

DEPARTMENT: COMMERCIAL LAW

NAME: DAVID LEWIS MADAWO

REG: L250/25796/2023

LPR 102: LEGAL RESEARCH AND WRITING

TASK: END OF SEMESTER EXAMINATION

PRESENTED TO: DR GRACE NJIRU

DATE: 14-12-2023
DAVID MADAWO AND ASSOCIATES LAW FIRM,

P.O.BOX 74-357,

EMBU.

10-11-2023

MR MALUKA,

P.O.BOX 30-260,

EMBU.

Dear Mr. Maluka,

FACTS
Mr. Maluka who works as an engineer at Yourns Company Limited fell from a ladder on 23rd October 2023 while
conducting routine maintenance.

At the time of the incident, Mr. Maluka had not put on his helmet and reflector jacket contrary to the health and
safety policies of the company that required all employees to always put on safety gear while performing their
duties.

Once the managing director got informed that Mr. Maluka had not worn protective gear he informed that the
company would not take any liability suffered due to his negligence. The managing director was heard by Mr.
Maluka’s father-in-law among other who held him of very high esteem saying that Mr. Maluka was a very careless
and very negligent employee.

ISSUES
1. Whether Yourns Limited Company is negligent?
2. Whether there is a defamatory statement made by the manager.
3. Whether Mr. Maluka is entitled to damages.
4. Whether plaintiff is liable to contributory negligence
RULE OF LAW
1 .Constitution of Kenya 2010
2. Work Injury Benefits Act
3. Occupational Safety and Health Act
4. Case laws

ANALYSIS
Issue 1
Whether Yourns Limited Company is negligent?

Negligence is a breach of a duty caused by the omission to do something which a reasonable person would do or
doing something which a reasonable person would not do.

A defendant will only be liable for their carelessness if they owe the claimant a legal duty of care. Carelessness
alone (however great) is not enough. The law concerns itself with carelessness only where there is a duty to take
care and failure in that duty has caused damage. For instance, Pippin v Sheppard (1822) was a landmark case in
the history of medical negligence law. It established that a surgeon owes a duty of care to his patient, and that he
can be sued for damages if he breaches that duty by acting carelessly,
Negligently, improperly or unskillfully.

The facts of the case were that the defendant, a surgeon, treated the plaintiff's wife for some wounds that she had
received. However, his treatment was so bad that it made her wound worse, inflamed, and endangered her life. She
had to undergo further treatment by other surgeons to recover. The plaintiff and his wife sued the defendant for the
injury and pain caused by his malpractice.

The defendant argued that he did not owe a duty of care to the plaintiff's wife, or that he did not breach that duty by
his conduct. He also raised some technical objections to the form of the declaration, such as the lack of venue, the
absence of an allegation of who retained him or who paid him, and the omission of an undertaking to act properly
or skillfully.

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The court rejected all these arguments and held that the declaration was sufficient to state a cause of action. The
court ruled that a surgeon, by entering upon the treatment and cure of a patient, impliedly undertakes to use
reasonable care and skill in his profession, and that he is liable for any injury resulting

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, Pippin v Sheppard (1822)
from his negligence or want of skill. The court also held that it was not necessary to state who retained or paid the
surgeon, or that he expressly undertook to act properly or skillfully, as these were implied by the nature of his
employment, existence of a duty of care acts as a control mechanism restricting or extending liability.
In establishing the duty of care the Caparo test is used which has three stages which are; foreseeability, proximity
and fair and just.

a) Foreseeability-this is the first stage which is usually to enquire whether it was foreseeable that the defendant’s
carelessness may cause injury in 2Smith v Eric S Bush [1990] UKHL 1, where the House of Lords held that a
surveyor owed a duty of care to a prospective home buyer who relied on his valuation report, as the harm was
foreseeable, the relationship was proximate, and it was fair to protect the buyer's interest. In Palgral vs Long
island (1928) 3the appellate division of the Supreme Court in the second judicial department affirmed the trial
court’s holding that the defendant was responsible for injuries to plaintiff resulting from an explosion .The harm
was therefore foreseeable.

b) Proximity- this inquires whether there’s a sufficiently relationship between the defendant and plaintiff in terms
of time space and law. Barrett v Ministry of Defence [1995] 1 WLR 1217, 4where the Court of Appeal held that
the Ministry of Defence owed a duty of care to a soldier who died of alcohol poisoning, as the harm was
foreseeable, the relationship was proximate, and it was fair to impose a duty that would promote the welfare of the
armed forces. In this case there’s a connection between Mr. Maluka and the company arising due to employer -
employee relationship.

The Caparo v Dickman test has since been highly influential in determining whether a duty of care exists in
negligence claims and has been applied in numerous subsequent cases.
It clarified the requirements for establishing a duty of care and set a precedent for future negligence claims.

c) Fair, just and reasonable - Fairness means that it must be fair just and reasonable to impose a duty of care on
the defendant, taking into account the policy implications and social context of the case. It is fair and just to hold
the company as having a duty of care towards Mr. Maluka and having breached that duty. Hill v Chief Constable
of West Yorkshire [1989] AC 53, 5where the House of Lords held that the police did not owe a duty of care to the
last victim of the Yorkshire Ripper, as the harm was not foreseeable to any specific individual, the relationship was
not proximate, and it was not fair to impose a duty that would hamper the police's discretion and efficiency. In the
book of Winfield and Jolowiczon on tort law it emphasizes on employers taking reasonable care so as to provide
operations not endangering

employee’s .It was the responsibility of the company to provide a well serviced ladder to prevent endangering the
employees to unnecessary risks.

2
Smith v. Eric s bush (1990)
3
Palgral vs Long island (1928)
4
Barrett v Ministry of Defence [1995] 1 WLR 1217
5
Hill v Chief Constable of West Yorkshire [1989] AC 53
The failure of servicing the ladder by Maluka’s management may be stated as the cause of injury, as it is provided
that the ladder was defective and required servicing, and contributed to the accident. Section 6 (1) of the
Occupational Safety and Health Act that every occupier shall ensure the safety, health and welfare at work of all
persons on their workplace. Under section 6(2) of the same act provides the duty of occupier to maintenance of
any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision
and maintenance of means of access to egress from it that are safe and without such risks to health failure to service
the ladder showed negligence on part of the company.
The employer has a duty to provide and maintain safe and suitable plants and systems of work for the employees. If
the employer fails to do so, and the employee suffers harm as a result, the employer may be liable. Under Article
71(1) of the Occupational Safety and Health Act 2007, every employer shall ensure that every worker employed
by him is provided with suitable protective clothing and appliances, including where necessary gloves, footwear,
goggles, head coverings, and respirators, to protect the worker from any risks of injury or illness arising from his
work. The employer is liable for breach of duty of care as under Article 41(2) (b) of the Constitution of Kenya
2010 states the following:

Every worker has the right--

(b) To reasonable working conditions

Does the defendant breach the duty of care?

Under Article 59 of the Occupational Safety and Health Act 2007, every hand-held and portable power tool and
equipment used in workplaces must meet certain standards of quality, safety, and maintenance. They must also
have switches or devices to cut off the power, and be marked with the manufacturer's information and
specifications. These requirements are meant to protect workers from injuries or accidents caused by faulty or
improper use of such tools and equipment hence Yourns Company Limited was negligent in failing to service the
ladder for years placing Mr. Maluka at probability of harm.

There is also an anticipatory contract breach between the manager representing the company, Yourns Limited
Company and Mr. Maluka. The manager’s actions of threatening the employees, telling him that the company
would not take any liability to any employees who gets injured in course of duty and failed to adhere to health and
safety policies of the company, constitute an anticipatory breach, as they show that the company does not intend to
pay the compensation that Mr. Maluka is entitled to under the Work Injury Benefits Act 2007.

Issue 2.
Whether there is a defamatory statement made by the manager.

Defamation is when one says or writes false statements about an individual which causes harm to his or her
reputation¹. Defamation can be classified as spoken defamation, also called slander, and defamation in form of
words or images also called libel. The manager's speech is therefore slander. According to the Kenyan Constitution,
every person has the freedom of expression, but they should also respect the reputation and rights of others.

Article 33 of the 2010 Kenyan Constitution states that every person has the right to freedom of expression, which
includes the freedom to seek, receive or impart information or ideas. The Constitution also states that in the
exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
According to the Defamation Act of 1970, defamation is defined as "the publication of a statement which tends to
lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun
or avoid that person".

Emotional distress can also be caused by threats, insults, harassment, humiliation, or other forms of emotional
abuse. The manager humiliates Mr. Maluka thus causing emotional distress to Mr. Maluka.

Article 29: This article states that every person has the right to freedom and security of the person, which includes
the right not to be subjected to any form of violence from either public or private sources, not to be subjected to
torture in any manner, whether physical or psychological, not to be subjected to corporal punishment, and not to be
treated or punished in a cruel, inhuman or degrading manner. Mr. Maluka is psychologically tortured by the
manager's defamatory statement resulting to emotional stress. The manager was heard telling his friends about the
incident hilariously stating that Mr. Maluka was very careless and a very negligent employee. Among the people
who heard the manager narrating the incident was Mr. Maluka’s father in law who held him (Mr. Maluka) in very
high esteem. Mr. Maluka's father in law had held Maluka high in esteem and thus he might have a tarnished
perspective of him.

Article 33 (2): This article limits the right to freedom of expression by prohibiting propaganda for war,
incitement to violence, hate speech, or advocacy of hatred.

Article 33 (3): This article states that in the exercise of the right to freedom of expression, every person shall
respect the rights and reputation of others.

To sue someone for defamation or emotional distress, one has to prove that the defendant made a false and
damaging statement about the plaintiff, that the statement was published to a third party, that the defendant acted
with malice or negligence, and that the plaintiff suffered actual harm as a result. The harm can be in the form of
loss of reputation, income, business, or emotional well-being.

In Mr. Maluka's case, he may have a valid claim for defamation and emotional distress against his manager, if he
can show that his manager's statements were false, malicious, and harmful to his reputation and mental health. The
manager's statements may have violated Mr. Maluka's right to dignity and privacy, as well as his right to fair labour
Article 28 of the Constitution of Kenya 2010 is about human dignity. It states that every person has inherent
dignity and the right to have that dignity respected and protected. This article is part of the chapter on the Bill of
Rights, which guarantees the fundamental rights and freedoms of all persons in Kenya. The manager may also have
committed an offence under the Work Injury Benefits Act, which prohibits
The employer from making any false statement or representation to avoid or reduce the liability for compensation.

Issue 3
Whether Mr. Maluka is entitled to damages.

Mr. Maluka suffered an injury as a result of an accident that occurred on 23rd October 2023, while conducting
routine maintenance using a metallic, adjustable ladder, and that the accident arose out of and in the course of his
employment. The defendant failed to provide and maintain safe and suitable plants and systems of work for the
employees, and that the ladder was defective or unsafe, and that it contributed to the accident.
According to Work Injury Benefits act 2007:
10 (1) An employee who is involved in an accident resulting in the employee’s disablement or death is subject
to the provisions of this Act, and entitled to the benefits provided for under this Act.

(2) An employer is liable to pay compensation in accordance with the provisions of this Act to an employee
injured while at work.

Civil Case No. 87 of 2013 - Joseph Mondi Ochieng & 2 Others v Crispin Oduor Obudo & 8 Others: In this
case, the plaintiffs sued the defendants for compensation for the injuries they sustained while working as
electricians for the first defendant. 6The court granted the plaintiffs’ application for a freezing order against the
defendants’ assets, pending the determination of the suit. The court also ordered the defendants to disclose their
assets and liabilities, and to file their defence within 14 days.
Mr. Maluka is therefore entitled to damages.

Issue 4
Whether plaintiff is liable to contributory negligence

Contributory negligence is a legal defence that reduces or bars the plaintiff's claim for compensation, if the plaintiff
is partly responsible for their own injury or loss. The plaintiff failed to take reasonable care for their own safety,
and contributed to the harm caused by the defendant's negligence
In Kenya, contributory negligence is governed by the Law Reform Act (Cap 26), which provides that the court
may apportion the damages between the parties according to their respective degrees of fault. Common law
principles and precedents on contributory negligence, such as the test of foreseeability and reasonableness may be

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Civil Case No. 87 of 2013 - Joseph Omondi Ochieng & 2 Others v Crispin Oduor Obudo & 8 Others
considered. Reasonably, the sole cause of the injury was the defective ladder and not failure of Mr. Maluka
observing the safety policies of the company by not putting on the helmet and reflector jacket. It's a 50/50
probability and not directly attributable to the employee's serious and willful misconduct. Work Injury Benefits Act
2007 does not affect the right to compensation of an employee who fails to use any safety device or to obey any
safety rule or regulation, unless the employer proves that the accident was solely and directly attributable to the
employee's serious and willful misconduct.
Civil Appeal No. 57 of 2018 - Kenya Power and Lighting Company Limited v John Mwaura Njoroge, where
the7 Court of Appeal upheld the finding of the High Court that the plaintiff was 50% contributorily negligent for
failing to wear protective gloves while working as an electrician.
Mr. Maluka is therefore contributory negligent.

CONCLUSION

1. Yourns company limited would be expected to take responsibility for carelessness in keeping up with work
environment safety, despite Mr. Maluka’s resilience to put on security gear. The dealing with chief's assertions
during and after the occurrence might be interpreted as an endeavor to avoid liability, possibly leading to issues of
contributory carelessness.
2. Yourns company limited manager is expected to pay for damages brought about by defamation. Under article 28
of The constitution of Kenya 2010, The director due to his remarks made against Mr. Maluka was against the
constitution since the article gives everyone a right to inherent dignity and too the right to have that dignity
respected and guided.
If the statements meet this threshold and consult with a legal professional to assess the viability of a defamation
claim.

RECOMMENDATION
It’s recommended that Yourns Company Limited should step up to rectify all safety protocols to the standards of
the law and promote a coefficient employer-employee and employee-employee relationship.

Yours Faithfully,

David Lewis
25796@student.embuni.ac.ke

0797521719

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Civil Appeal No. 57 of 2018 - Kenya Power and Lighting Company Limited v John Mwaura Njoroge