David Omutelema Opondo v Dela Rue Currency and Security Print Limited [2017] KEHC 2125 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.480 OF 2009

DAVID OMUTELEMA OPONDO.......................................................PLAINTIFF

VERSUS

DELA RUE CURRENCY AND SECURITYPRINT LIMITED..........DEFENDANT

JUDGMENT

1. Vide  a plaint  dated  9th September  2009  which is  8 years  ago, the plaintiff  herein David  Omutelewa  Opondo filed this suit against the defendant De La Rue Currency and  Security Print Ltd  seeking  for general damages, loss of earnings, costs  of the suit,  interest on damages  and  costs at  court rates  and  any  other remedy  deemed  appropriate.

2. The plaintiff’s claim against the defendant is that at all material time to this suit, he was employed  by the defendant  on 17th January 1994 as a packer in the security  finishing  department  after subjecting  him to  medical tests which found him to be medically  fit.

3. That in the course of his employment, the plaintiff was  required  to lift heavy bank note  cases  and  reams in sheet form weighing  between  15  and  85  kilograms  and  was  also required  to pack  and  manually carry bank notes  and  passport  cases  weighing  over  50 kg  for  about  8 hours  a day  and place  them on specified  trays for  onward  transfer  to the security  safes.

4. That in the year 2004  the plaintiff  while  lifting  a case full of  bank notes sprained  his back and  the x-ray  showed  that he had  suffered  loss of lumbar  lordosis  due to muscular  spasm.

5. Later, the  plaintiff was allegedly  required to work while  sitting  in a chair, while he  placed  passports into  trays  and  lift  the  trays  to  arrange  them into pallets.

6. That on or about 3rd November 2008 at about 11. 00 a.m.  while  the plaintiff  was working at the defendant’s premises placing  passports  into trays  and lifting  them so as to arrange  them into  the pallets, the chair  in which he  was  seated  suddenly  descended  to a depth  of  2. 5  feet  and the  impact  thereof  caused him to suffer severe injuries.  He blames the defendant for the said injuries which are said to involve L5-51disc dehydration and post central disc profusion.

7. The plaintiff  claims  that the defendant  through  its servants  and or  agents were negligent  for  failure  to  provide  a safe  working environment  for him in  that:

1. It  failed to  adequately  and  firmly fasten  the chair in which  the plaintiff  used to sit so as  to prevent  it from  descending below;

2. Failed to warn the plaintiff of the risk of the chair descending  below;

3. And failing to provide a cushion, which could prevent or minimize injury to the plaintiff in the event of   the chair descending below.

8. The plaintiff claims that as a result of the injury, the plaintiff   was retrenched and lost the ability to earn a living.

9. The defendant filed a defence  dated  29th October 2009  denying  that the plaintiff had been employed as a packer  in the defendant’s  security  Finishing Department on 17th January 1994  until 1998. According to the defendant, in 1998 the plaintiff  was  appointed  a cheques operator  in the cheques  department  and in May  1998  he  was appointed a CTC Operator  and  in June  2004 appointed a Kugler operator until termination of his employment  in April  2009.

10.  According  to the defendant, the  plaintiff neither reported  nor alleged suffering  a  sprain  or injury  to his back in  2004  or  2008 in accordance   with its  rules and procedures.  Further, that in any event, the claim for injury in 2004 is statute barred.

11.  It maintained that it provided a healthy and safe working  environment for all its employees and  that the  plaintiff’s employment  was  terminated on 6th April  2009  on account of  redundancy.

12. The defendant contended that the plaintiff only made claims for work injury related compensation after the  termination   of his employment   on  6th April  2009  and that he claimed  he  got injured  when lifting  a book full of passports.

13. All the parties complied  with  Order  11   of the Civil Procedure   Rules  by filing statements  of  witnesses  and  lists  and  bundles  of documents  to be relied  on at the hearing.

14. On 17th  November  2009  the plaintiff  filed a  reply to  defence  dated 11th November  2009  joining  issues  with the defendant  in its defence and  asserting  that he had  complied  with the Rules  and procedures  by making a  verbal report  to his then supervisor  Mr  Kennedy  Makanga  and  was  treated  for the injuries at  the defendant’s clinic and  an xray  taken  revealed  muscle  spasm.

15. Further, that he  also reported  the subsequent  injuries to his  then  supervisor Mr Rodgers Obonyo and he received  treatment at the defendant’s  clinic  and  was later  transferred  to Aga Khan Hospital  for further treatment.

16. The plaintiff  further stated  that  he sustained  injuries  on  3rd November  2008 not  March  2009  as alleged  by the  defendant.

17. The court  notes that at one point  in time from 9th March  2011  to 16th April 2012 when the plaintiff  filed an application to reconstruct  a new file, the original  file had  gone  missing   but the  same  was  traced  later  and placed  before Onyancha J for  hearing  before  I took over the conduct of the matter in October  2014.

18. The hearing commenced  before me  on 28th October  2014  with the plaintiff testifying on oath and calling 3  witnesses  adopting   the  filed written  statements  as their evidence  in chief.

19. The plaintiff testified  that on  3rd  November  2008 while he was  engaged  upon is employment  and  while working  as Kugler 3 machine operator the chair he was sitting on snapped and he fell down  as he  was  carrying  passport  books.  This  was  4 years  after he  had earlier  on suffered  another  injury in 2004 while working for the defendant, which work involved  standing for long hours and manually carrying bank notes boxes weighing   between 50 and  80kg  for 8 hours  a day as  a result of which he  was diagnosed with lumbar lordosis and muscular  spasm.

20. After  the alleged  injury  on 3rd November  2008, the  plaintiff  stated that he  was taken to the defendant’s  clinic  and seen by Nelly  Nyamunga  the defendant’s  clinical officer  but the pains  in the back  became  intolerable hence  he  went to  Aga Khan Hospital  where he  was  treated  and  doctors  found him to have  a disc dehydration and central disc protrusion at L5-S1  which  Dr.  Henry Wellington  Alube (DW3) explained  to mean  lack of  fluid  to lubricate  joints  of the bones, caused by  injury, working  conditions  and  old age.

21. According to the  plaintiff, the defendant’s  clinical  officer  was  rude  to him after  he became  immobile  hence he had to struggle  to reach  Aga Khan  hospital  for  proper  treatment  by his own means  and he had   to buy his  drug on his  own.  He lodged a formal complaint to the Human Resource Manager concerning refusal to assist him as per his exhibit PEX2.

22. He also briefed his union shop steward to speak to the management who only promised to investigate.  He was later retrenched.  The plaintiff was  seen and examined  by Dr  Kimani  who prepared a medical report  dated 30th November 2004 (produced as  PEX 1(b).  He  was later  seen  by Dr Sande  at Aga Khan  for  diabetes  and  serious  lumber  (back)  problem  as per P exhibit 1(c).  He complained  that he was declared  redundant  on 6th April  2009 while he was  still  admitted  in hospital  but that before then, he had  written  to the  defendant  seeking for compensation for the injuries suffered as shown  by his exhibit  No. 3  produced  in evidence.

23. The plaintiff testified that when he was being recruited, he was subjected to medical examination and found to be medically fit.  He denied that he was trained about the seats and or  precautions on the dos and  don’ts  while at work and  maintained that there  was a similar case pending in court concerning  the seat, by an  employee who injured  himself   while lifting  a ream  of  paper.  He stated that the average weight of the documents he lifted were 7. 15 kilograms.  He stated that the seat collapsed because of loose bolts which were not tightened and he maintained that it was the defendant’s duty to service those chairs.

24. The plaintiff stated that albeit  he was inducted and  taught  about  lifting, there  was  no warning given and that neither were they trained on environment  and health  measures, or that  the seats  they used  were likely  to descend  and injure  him.  He admitted knowing Elvis Mulama a Safety and Healthy Officer but denied that the latter spoke to him about the safety of the seat.  He stated that when he complained to the Ministry of Labour, officials from the Ministry visited the defendant company.  He maintained that although the company was insured against work related injuries, it refused to compensate him through UAP Insurance Co. Ltd.

25.  The plaintiff stated that Jacinta Mbuthia  was his then supervisor  in the Division assisting Rogers  Obonyo, was still in employment  of the defendant but that Rogers  Obonyo  (finishing  supervisor) who supervised  him at the material time left  employment  of the defendant.

26. The plaintiff maintained that he was injured due to the defendant’s negligence and that he lost his job after the injury.  He stated that he  was 42 years  when he  was  retrenched  and  due to his  injury, and  since he had been trained  on the job as  an ‘A’ level,  he could  not get such  employment  anywhere  else  coupled  with is back  problems.

27. In cross examination by Mr  Muchiri  counsel or the  defendant,  the plaintiff stated that he worked  as  a packer for about  4 years  but was later  taken  to cheques Department  as  a CTC Operator (a  machine  that  personalizes  cheques)  where he   worked for  another 4 years.  He  stated that he moved to the passports  Department  in 2004  and  started  operating  a Kugler  machine which is used  to assemble  passports  and that is where  he  worked  until his  services  were terminated.

28. He stated that his work involved proper assembling and quality assurance of passports.  He admitted knowing Dennis Wanyonyi their shop steward and a Kugler 1 and 3 operator.  He stated that the Kugler machine did not produce a final product of a passport.  He stated that part of his role was to collect passports.  The plaintiff  stated that after an accident, one  was  required  to fill  a form and  given to  the supervisor if the injury  was minor and  was  referred to  the company clinic.  He maintained that in 2004 he reported the accident to his immediate supervisor and he was send to a medical officer who confirmed after attending to the plaintiff.

29. When shown his medical card, he stated that it showed that he was in the company clinic after the 2004 injury.  He denied a suggestion that he could have been injured elsewhere other than at the defendant’s premises.  He maintained that he suffered the 2008 injury while working at the passports department while verifying the quality of passports.

30. The plaintiff stated that he lifted boxes on his laps and as he sat to check on the quality of passports, weighing about 13 kilograms, the bolts of the chair which were worn out descended.  He went down with his legs hanging held by a ring.  He stated that after seeing the clinical officer Nelly Nyamunga, he went back to work but was in pain.  He stated that the accident occurred between 1030-11a.m. and he went to the clinic at 1. 45 pm after experiencing the pain.

31. Further, that  on the night of 6th November 2008  he went  to hospital  after  experiencing  pain and  sneezing  and  abdominal pain  due to  the  back injury.  That after going to hospital he was given a sick off the following Monday but on 10th November 2008 he went to work.  He conceded that he send  a demand  letter to the Human Resource Manager a month after his services  were terminated, complaining  that he had been threatened  for reporting  the  company  to the shop steward.  He admitted  that he visited the  provincial  occupational safety and  health officer in June  2009 and they accompanied  him to the defendant’s  premises to investigate the  accident in company of Mr  Waweru  &  Mr Omoyo.  He maintained that he was still in pain and could not perform his conjugal rights due to backache although he also suffers from diabetes.  He stated that Jacinta Mbuthia was in charge of quality inspection of passport for all laches (sic) and that apart from insurance, no safety equipment were provided to the workers.  He admitted that there  was a  health  and  safety  booklet  and that they  were trained  on safety hence there were measures  to take care of  employees’ health.

32. In reexamination by Mr  Ombete, the  plaintiff stated that he fell  when the chair descended down while he was carrying  passports  and that  there  was  no precaution or notice  that the  chair could  descend when sat on with passports.  He also stated that he had never witnessed such an incident at work with any other person.  He stated  that the seat was up and  fastened with bolts  and that  it  was  his duty, after  feeding  them into  the machine, to collect them, sit down and check on their  quality  and  that is when  the  chair snapped  and  went down with him.  He  stated that albeit  the weight  was  about  13 kilograms, what  took him down was  the  loose nuts but he  had no means  of knowing the chair  was  faulty.  He reiterated that Rogers left the company’s employment.  He maintained that Nelly Nyamunga the clinical officer in charge of the company clinic is the one who attended to him on 3rd November 2008.  He stated that he continued  working even  after the  injury  because he  was the senior  Kugler  operator  who trained  other Kugler  operators  and  was  advised to continue  working while  using  medications given to him by the clinician, albeit  he was in pain.

33. He stated that on 7th November 2008 he could no longer endure the pain so he went to Aga Khan Hospital because it was the company’s hospital of choice.  He stated that he took about 2 hours from 11a.m to 1pm to go to the company clinic after getting injures because when he called the nurse, she told him that she was not in hospital.

34. That when he returned to work on 10th November 2008, he was given light duties.  He stated that he  wrote  to the company  on 28th May 2009 asking for workmen’s compensation to be processed  and  paid to him following  the  same  accident  of  3rd November 2008.  He maintained that he was retrenched after taking the shop steward to the company upon which he was threatened with termination of his employment. He stated that the occupational safety officer came to investigate and he instructed the company to fill an accident form but never made any observations.  He  stated that although  the  company had  in place safety  measures, those  measures could not  help him  and  that is why he was  injured.

35. The plaintiff also called PW2 Dennis  Masinde  Wanyonyi, who testified  on oath and  adopted his witness statement  signed on  16th May 2011  as his  evidence in chief and  stated that he worked  at the defendant’s  company  from 2001 to 2009 when he was  declared redundant  as a Kugler operator  at the passport production  machines  area and knew  the plaintiff  whom he found already working  at De la Rue  and continued working  with him.

36. PW2 stated that on 3rd November 2008 as he worked with the plaintiff, he heard an unfamiliar noise and on checking behind,  he  saw the plaintiff fallen on the floor  after the chair he was sitting on fell down.  He  informed Rogers  Obonyo their supervisor  and the latter organized for the plaintiff to be taken to the company clinic but he first filled a form to show that he  was  not in  the production line, which  form  was taken by the supervisor  to take  to the  security  and the latter  would take  it to the clinic.  He stated that the said form was not returnable to the injured employees.

37. PW2 also added that the matter was reported to Jane Ngethe the Human Resource Officer.  PW2 stated that he was the shop steward union leader so he knew of the injury which was reported to the Human Resource Jane Ngethe.  He stated that no one had fallen from the chair before. He denied being advised to inform the users of the chair of the risks involved in sitting on the said chair.  He stated that Mr Mulama the Health and Safety Manager was supposed to be checking the seats but he did not.

38. In cross  examination by Mr Muchiri  counsel for  the defendant, PW2 stated that he joined the  company in  2001  but  could not  recall the  accident in 2004  involving  the plaintiff.  He stated that they had 4 Kugler machines and that in 2008 he worked besides the plaintiff.  He stated that one sits when checking quality of passports by lifting boxes from the checking point to the other section, and that the weights varied.  He reiterated that he heard the plaintiff scream but only saw him fallen on the ground and he got concerned about the plaintiff’s injury.  He  stated that in emergency cases a floor supervisor or team leader or  manager would be informed  to notify  the  security  to get  first  aiders  to take an injured person to the  clinic  through  specific  emergency  doors.

39. PW2 maintained that a form was filled for the plaintiff immediately after the accident.  He stated that both he and the plaintiff were declared redundant at the same time. He stated that he went to see Jane Kangethe because of the injury to the plaintiff and the issue of redundancy.  He stated that the plaintiff left for the clinic after the accident but that he never accompanied him.

40. That  they worked with Jacinta  Mbuthia  who was  supervisor  for Kugler  production section checking   on quality  and that Jacinta  had information  about the  plaintiff’s  accident  and  injury.  He stated that there were booklets on safety and some people would be taken for training and be issued with the said booklets.

41. In reexamination by Mr Ombete, PW2 stated that when he heard the scream and looked, he saw the plaintiff on the ground and the seat had also gone down.  That the plaintiff said that the seat was securely fixed.  He stated that the injury report was given to the floor manager and that in this case, he notified Jacinta Mbuthia but never accompanied the plaintiff to the clinic.  He denied that he was testifying for  the plaintiff because  he  was also declared redundant and added that him and the plaintiff went to see the Human Resource Officer Jane Kangethe  to follow  up on  further medication  for the plaintiff’s backache problem.

42. The plaintiff also called  PW3  Ms Claris  Ayuma Apiyo  who  adopted  her witness  statement  recorded  on 16th May 2011  as her evidence in chief and testified  that she  joined the defendant  company on 1st June 1993 as a personnel  officer and  was  later promoted to Employee Relations Manager, which was a Human  Resource  function.

43. PW3 confirmed that she was involved in the recruitment exercise  of the plaintiff  who was  employed  on 17th January  1994.  She stated that she left Dela Rue by resigning.  She confirmed that the recruitment involved ensuring that the  shortlisted candidates  underwent  medical  checkup and security finger print  before being employed  and that the plaintiff  herein underwent a complete medical examination and security  vetting  which  showed that he  was  fit for  the job before he  was given a letter  of appointment and  that  the  witness used to receive  and keep medical  records  in the file.

44. She testified that she was  aware  of operational  functions  of the company  and that  at the time  she left  employment in 2003, the  plaintiff  still worked in the packing of  products  into cartons – bank notes, cheques  and  passports which finished products were heavy and  were  carried  manually.  She also stated that she  knew  Jacinta  Mbuthia  who worked  in the production unit  where passports  and  cheques  were done.

45.  In cross examination by Mr Muchiri, PW3 stated that the  company  had its  own  doctor  and a clinic.  She also stated  that employees  were provided  with protective  gear  but that  there  was  no training  on how to lift  the products.  She stated that the defendant company was a conducive environment to work in. She stated that upon an injury by an employee while at work there was always a superior who would fill a form from the  Ministry of labour.  She stated that she had already left when the plaintiff  got injured.  She  maintained that products  which were heavy (about 50 kilograms) would be carried  manually  for  3 kilometers away and that during her tenure, the plaintiff  sustained  an injury  on the head  and  was taken to hospital.

46.  In reexamination by Mr Ombete, PW3 stated that the defendant company had a conducive working environment but that accidents used to happen.

47. At the close of the plaintiff’s  case, all parties  agreed  to have all the  plaintiff’s  original documents filed in court  on 17th May 2011 be  admitted  in evidence  and  they were produced  as P exhibit 1(a) (b) and (c ) by consent without  calling their makers and all the defendant’s  documents  as filed in court and  served on the plaintiff’s counsel were also produced  in evidence by  consent  without calling  their  makers. They were produced as DEX 1.

48. The defendant De La Rue currency and Security Ltd called 3 witnesses in its defence.DW1 Elvis Mulama  a  Health and Safety Officer of the defendant  company since 2003 testified  on oath that he knew  about this claim and adopted  his witness  statement  recorded  on 9th June  2014  as his  evidence  in chief.

49. According to DW1, the plaintiff  was  a former employee of the defendant  from 1994-2009 and left  employment  after  being  declared  redundant  at the end of  March 2009.

50. DW1 stated that he was  aware that the plaintiff  fell off the  chair on  3rd November 2008 at a time when he worked  as  Kugler 3 machine operator machine which  was  used in making passports  book.  He however testified further that he was on duty on the material day but nothing unusual happened like an accident.  He stated that whenever one was injured, there was a procedure followed by notifying a supervisor  who would call for first aid and treatment would be administered then injury report forms would be filled  depending on the class of injury.

51. DW1 stated that he was made aware of the accident on 15th June 2009 when John Waweru of Ministry of Labour called him seeking to know why the defendant had not reported an accident involving the plaintiff.

52. That when  the  witness  inquired  from the company, he  was  informed that a letter had been  received from the plaintiff  dated  28th May 2009 claiming injury when lifting boxes full of passports  yet in this claim he says  he fell when a seat  he  was  using descended suddenly. That the Ministry of Labour asked for  a formal report of accident to be made  but the witness  told the Ministry of Labour that no  accident  occurred  and on  19th June 2009 the  Ministry of Labour  officials visited  the company.

53. DW1 testified that the Labour Ministry officials were taken round the  company premises.  They  spoke  to Jacinta Mbuthia  the  passports  Assistant supervisor  and  Anne Mwadzumbo who worked at the machine together with the  plaintiff  as Assistant  Operator.  That  the  plaintiff told them that  he  was lifting  a box  full of  passports  when  he got  injured but that when a log  on who was doing what on that date of alleged accident  was pulled out, it  was  discovered that the plaintiff   was  supposed to be  operating Kugler 3 machine not lifting  passports.

54. The witness further testified that  products  were not  finished  so he  could not  be expected to lift passports and  that he was expected to  walk around  the machine to ensure  that  work  was  flowing  and  if there  was  a jam, he could clear it.

55. DW1 insisted that machine operators did not work while seated as their work involved walking around.  He denied being  aware  of  any injury  form filled by the plaintiff.  DW1 stated that the clinical  officer would  also fill in the  form.  He stated that  there was an entry for  3rd November 2008 concerning  package  and lifting of some reams of  paper earlier on, but not a mention of a chair snapping . DW 1 also stated  that there  were complaints  on the conduct of the plaintiff whenever he needed ambulance  services.  The witnesses did not believe that the plaintiff sustained injury on 3rd November 2008 since not even his supervisor was aware of it and that the work environment at De La Rue was safe and healthy since they have a well-established safety management system certified by international standards.

56. Further, that the company trained employees on their safety and put in place accident   prevention measures.

57. In cross examination by Mr Ombete, DW1 stated that he  normally sat  in the production area but that  on the material  day he  was not  at the plaintiff’s  place of  work  which   was  at the Kugler  3 operator.

58. DWI confirmed  that the plaintiff  was employed  on 17th January  1994  and left employment  on 5th April  2009  after  working  in various departments and  that his  work did not involve  carrying  heavy loads.  The witness stated that he joined the company (defendant) in  2003  and found  the  plaintiff working  in the cheques  department.  He denied  that  workers  carried  materials  since there  are trucks  and  forklifts  which are  used to carry  the materials  or loads.

59. The witness maintained that accidents are reported to immediate superiors  but that he also  used to  receive  reports  after completion of the injury report  form.

60. DW1 stated that Rogers Obonyo was the plaintiff’s  immediate  supervisor but that  he  was no longer an employee of the defendant  company.  He stated  that Rogers  would have  been  the  first person  to know  of the injury then  Sammy Likale  who was the departmental manager.  He stated that the serious injury accidents would be referred to the company clinic as emergencies.  He confirmed  that the plaintiff’s  clinic card  had an entry  on  3rd November  2008  complaining  of backache.  He stated he  had not worked on any of the machines as an operator but maintained  that operators  did not  work while sited.

61. DW1 denied a suggestion that the seat used by the plaintiff was  suspended  but stated that  it  was  adjustable  upwards  and  downwards, operating  on a hydraulic  system.  DW1  stated that despite  the elaborate measures  put in  place by the company to eliminate risks, accidents still happened.  He maintained that on 3rd November  2008 when it  was  alleged the  plaintiff  was injured, DW1 was on duty but never received anything unusual  happening.  He stated that injury  forms are  filled in parts by the superior  and in  serious injury  cases the  Department  Manager  also fills and the immediate supervisor brings them to him(DW1) being the environment Heath an  Safety Advisor  for the company.

62. The witness stated that only Rogers  could tell whether  or  not any  form was  filled   regarding  the plaintiff’s alleged  accident while  at work which  form would  not be left  with the victim  but  if the injured wanted to have a copy then the company  would  provide  one.

63. DW1 who had previously  worked  with the Ministry of Labour, stated that  the  Ministry of Labour officials went to  inquire from the defendant   why the   work injury  form had not been filled.

64. DW1 conceded that the plaintiff was treated by Nelly  Nyamunga the clinical officer on  3rd  July  2008.  He denied  that the plaintiff had been denied ambulance services and  stated that  he  would be entitled to, depending  on the nature  of the illness  of which Nelly  Nyamunga  would  collaborate  with the insurance company and avail an ambulance if it was  needed.

65. He also  stated that other  people who  worked with the  plaintiff including Jacinta Mbuthia and Anne  Mwazumbo  would know   if he  was  injured.  He stated  that the plaintiff’s   role  was  not to check the quality  of the products  and that in his role  as Kugler  3 operator the plaintiff was not required to be seated while working.  He denied knowledge of a 2004 injury  by the plaintiff.  He stated that he did not  know if  the  plaintiff  was  treated  at Aga Khan  Hospital and that  at Kugler  3  there   was only  one  seat at the end  of the line, which was about 2½ feet long which  was  adjustable hence even if  it snapped it would not go down completely.

66. The witness stated that finished passports would be arranged in boxes weighing about 50 kilograms on average, but would never be carried manually and physically unless they were in small quantities of 7. 7 kilograms because for heavy ones, vacuum lifters were used.

67. In re-examination by Mr Muchiri counsel for the defendant, DW1  stated that  Rogers  Obonyo left  the  employment  with the defendant in 2010 and that it is him who would have  received  a report of injury if any by the plaintiff.  He  stated   that there  was no request  to fill the injury form  and  that even after the visit  by  the Ministry of Labour officials, no form was filled because forms were usually  filled for  actual accidents  so they only wrote  a letter to the Ministry  of Labour reporting  the alleged  accident.  He stated that no seat was provided for the plaintiff because he was a Kugler operator who moved around the machine.

68. The defendant also called DW 2 Jacinta  Mbuthia  Gathoni a Human Resource  Assistant  at the defendant Company.  She relied on her witness statement recorded  and signed  on 9th June 2014  as her evidence  in chief.  The witness stated that she joined  the defendant  company  in 2001 as a Quantity  Assurance  Inspector  and  worked  in the cheques Finishing  Department.  Later  in 2003  she  joined  the  passports Finishing  Department as  operator   and  in  2004  she  worked  as a passport  assistant  team  leader until 2009  October  when  she  was  moved  to the Human Resource Department as a Human Resource Assistant.  She was a graduate of BSC in Natural Resource Management and a Higher Diploma in Human Resource Management.

69. The witness  recalled that on 3rd November  2008  she  worked in the passports   finishing  department with  the  plaintiff who  worked as  a  Kugler  operator.  That she was  the assistant  team leader  and  worked at  a distance of  3-4  meters  to where the  Kugler  machines were stationed but that the plaintiff  was never  injured  from the alleged  fall while working as he  would  have reported  the accident upon which an injury  form would  have been  filled  with her  assistance  and  witnessed.  Further, that the injury form would be photocopied and the original given to the manager for health, and safety.  The witness identified the forms that could be used/filled at the material time in case of  an injury  incident.

70. DW2 stated that  the plaintiff  worked  as a Kugler  3 machine  operator  which  was   used to  finish  passports  and that of the  2 Kugler  3  machines, Dennis Masinde  worked  on one  while the  plaintiff  operated  the other machine  and their assistant  was Anne Mwadzumbo.  He stated that Kugler 3 machine  operator  would ensure   the machine  was running  as he fed  the sheets  into the  machine  to ensure  it ran  smoothly and that one  had to  stand to  feed it at 4 feet  above the ground while  the  assistant  would receive  books at the  end of the machine, place  them on a tray and place them on a pallet and  in doing so, had to sit.

71. DW2 maintained that on 3rd November 2008 no incident  involving  injury  to the plaintiff  was witnessed or reported.  She also  stated that the company has a health and  safety policy displayed  and  accessible  to the employees  but denied  that  any report   was made  to him or Rogers Obonyo who were  the first  points of  contact.  She stated that no forms  of injury  were filled  and  neither did  she receive  any report of the alleged  accident  involving  the plaintiff  on 3rd November  2008.  She conceded  that there was  a clinic card showing the plaintiff  visited the clinic on  3rd November  2008 but stated that the treatment for that  day was not for a current incident  but for  ongoing  treatment.  She stated that the defendant had in place health and safety measures.  She confirmed that the plaintiff left employment on 6th April 2009 after being declared redundant.

72. In cross examination by Mr L.M. Ombete counsel for the plaintiff, DW2 stated that when she joined the defendant’s company she found the plaintiff already working for the defendant.  She conceded that before being employed, one had to be subjected to mental and physical  fitness. She denied  ever seeing employees of the defendant carry anything  manually.  The  witness recalled  that on 3rd November  2008  her and the plaintiff worked together  separated by a distance of only about  4 meters apart,  for 8 hours  after  a  40 minute break for lunch  and  10 minutes  tea break.  She denied  that any accident occurred while she worked with the plaintiff  and that neither   was it reported.  She stated that at Kugler 3 machine, the  operator  had no seat as there  was no provision for one since the operator  moves  around the machine, feeding  it and  that the feeder   was  4 feet  above  the ground  while the  machine was  mounted on the ground.

73. Dw2 stated that the operator  stands  throughout for the 8 working hours  and  incase of  any incident, a superior  would be advised.  She also stated that in this case, Rogers  Obonyo was the  team leader  supervisor  at the material  time while  Anne Mwadzumbo  who was the assistant supervisor and that Anne was closer to the operator than DW2.  She admitted seeking the plaintiff’s  letters of complaint on how he  was  treated when he sought ambulance  services from the defendant.  She also stated that on 3rd November  2008  the plaintiff visited  the company  clinic  and  was treated but that  no much details  are given on the clinic card.

74. DW2 stated  that the plaintiff  was also  a shop steward.  She maintained  that if there was  any injury  while at  work it  would have been documented  by filling  the  form  which would  be kept  with the Health and  Safety   supervisor. She further stated that  as  a Kugler  3 machine  operator  the plaintiff could not  work while  seated  and that  earlier  on he had reported  the injuries that he  had suffered.

75. In reexamination by Mr Muchiri counsel  for the defendant, DW2 stated that health  checks were done  to all employees  joining the company  to work in the  factory.  Further, that conveyor belts, trolleys and  packing  lifters were used  to carry items.  She asserted  that on 3rd November 2008 she worked with the plaintiff but that  no incident  was  reported.  She stated  that in  2008 the  plaintiff  was never deployed to any other  department  apart  from the passport finishing department.  She stated that the plaintiff  never requested for any accident report  forms  and  neither was the request denied.

76. The defendant  called their last witness DW3 Wellington Alube  who  was the visiting  Doctor  at the defendant’s factory  staff clinic from 2004, attending to staff who were sick every Tuesdays  and  Thursdays although the company had a full time clinical  officer.  That he used  to attend  to medical  cases  which the  clinical officer  could not  manage  and that  the clinic is for  general care  opening  at  8. 00am and closing  at 5pm daily.

77. The witness stated that he  had attended  to the plaintiff on many  occasions and that in 2004  the plaintiff complained  of  backache after being  seen by the  clinical officer  and  referred  to DW3 on 30th November 2004.  He examined the  plaintiff  who was diagnosed  to have a PID and referred  him for x-ray for lumbar  spine  from Corner  House  X-ray and  Diagnostic Centre.

78. He stated that  the  Radiologist  had found  that there  was  loss of  lumbar  lordosis- which is  a change in  shape of the back due to imbalance  in muscles also known as muscular spasm but no injury to the  bones of the  back and spine was seen.

79. DW3  stated that  loss of lumbar lordosis  could be  due to the  injury   or sitting  posture.  He denied being  aware of the  injury of 3rd November  2008 to the plaintiff but acknowledged  that there  was  an entry  by the clinical officer Nelly Nyamunga  on the  clinic card for the plaintiff on the said  date when  the  plaintiff  is said to  have  complained  of backache on and off  and  sneezing, and  having been  treated  for the same  sometime  in 2004;   and  that the entry also  states that the plaintiff developed  the pain after  lifting some reams  of paper earlier on.

80. DW3 stated that  the patient (plaintiff) also  had  other ailments  and developed diabetes  mellitus.  He stated that he was aware that the plaintiff attended  Aga Khan  Hospital  and x-rays  taken  on 6th April  2009  showed  the same  results of  lumbar of lordosis.  He stated that disc dehydration was a common  diagnosis  caused by  injury  or age  but that it  was hard  to tell whether the  injury  in the plaintiff  X1  was  caused by a fall from a chair.  He denied ever  hearing of people falling of chairs  at the defendant’s  premises in his 16 years  working  at the company.

81. In cross examination by Mr L.M. Ombete counsel for the plaintiff,  the doctor  DW3  stated that he  was  only a visiting doctor  not  an employee  of the defendant  and that he only  dealt  with cases  which the clinical officer could not handle  but that  sometimes  the patients  requested  to see him  and  could even access  his  private clinic  and that he also undertakes  pre-employment medical examinations for the defendant’s  prospective employees, examining their physical fitness to undertake  the job.

82. The doctor also stated that he was aware that there is  a  department  where workers  do heavy manual work of carrying  items.  He also stated that some injuries  according to x-ray  scans, could have been caused by a fall and that posture or long working  hours  or riding  in a matatu  on a rough road  causes muscular spasm while  dehydration of disc  could be  caused by  aging  for those  who are 50 years  and  above  if there is  no previous  injury  such that  the disc  becomes flat  and  presses  on the spinal code squeezing it thereby causing weakness  and pain.  He confirmed   that  a  clinical officer  is trained  in taking   history and  doing clinical  examination to patients.  The  witness  maintained that  backache can be  caused by injury or sitting  for  long  hours or  due to  a sleeping  mode.

83. In re examination by Mr  Muchiri  DW3 stated that the x-ray showing  central protrusion cannot cause pain.

84. At the close  of the defence case  both parties’  advocates  agreed to  file  and  exchange written  submissions  for  mention on  18th April  2016 to confirm compliance  but by 18th April 2016   only the plaintiff had just filed  his submissions and  so  the defendant  was given 21  days  to file submissions for  a  further mention on 23rd May 2016 by which date the defendant’s counsel  had not  filed their submissions and  sought for  21  more  days.  On that date the court was indisposed so the matter was mentioned by the Deputy Registrar.

85. In the ensuing period I was deployed from the Civil Division to the Judicial Review  Division so the file  was placed before  Honorable Jaden J for  directions.  The  file only  reached  my desk  on 30th January  2017  when both parties’ advocates   confirmed  that they had filed  submissions  and  judgment   was slated for  13th March  2017  but on the  latter  and  subsequent dates  of  19th  April  2017 and  10th May  2017 the court  was  engaged   in urgent  judicial review matters and when the judgment  was  slated for  delivery  on 24th July  2017  the  court  was  bereaved  and  on an extended annual leave hence the delay in the  delivery  of this judgment  which was not deliberate.

86. The parties’ advocates written submissions as filed have been considered by this court in line with the pleadings and oral testimonies taken in court.

87. The plaintiff filed his  statement  of issues on 17th May  2011   dated  16th May  2011  whereas  the  defendant  company filed  its issues on 12th June  2014.  They are dated 11th June 2014.

88.                        According  to the  defendant’s counsel  in his lengthy submissions which basically reproduced the proceedings verbatim before making submissions, it was contended that the plaintiff’s  allegations that he  was  injured  while at work  on 3rd November 2008 are unbelievable became there  was no  incident  form completed  or handed  over to the  plaintiff’s  supervisor  in relation to the alleged  injury; that it took long from  date  of alleged injury  to the  time the  plaintiff first made  the claim for  compensation  for the alleged injury which  was  long  after he had been declared  redundant; that none of the plaintiff’s superiors  or employees  working   alongside  the  plaintiff  were  aware of the  alleged  injury  or the circumstances  thereof  and that although the plaintiff  visited  the  defendant’s  clinic  on 3rd November  2008  there is no mention in  the hospital  records that he  sustained  the injury from falling  off a chair  and  that this  was stated  to be a receiving problem.  It  was also alleged that  there was no provision or  chair  for Kugler  operators  as their work did not require sitting but standing  to ensure  smooth  work flow.

89.  In addition, it  was  contended that in any event, the plaintiff  could  not be involved  in lifting  of passports  since they  would not  yet  be  finished  products  at the Kugler  3 machine  state  and that was the work if the assistants to lift.  DW3 of Wellington explained that the back problem from the diagnosis could have been due to injury, working hours or old age.

90. On the part of the  plaintiff, he maintained that he  was carrying the passport  books when he sat  in the chair  to check  the quality   thereof  and  as a result  the  chair snapped and he fell 2½ feet  down.  He was attended to at the clinic by Nelly Nyamunga.  PW2 was with him and witnessed the fall, and that the fact that the defendant’s witnesses did not witness the accident does not mean that he did not fall.  He maintained that he reported the accident to Rogers Obonyo his supervisor and that he filled the injury form.

91. The plaintiff  in his submissions urged the court to  find the defendant  liable  and  award him general damages of Kshs 1,200,000 for pain, suffering  and loss of  amenities compensation based on the decision of Messay Jaggery Ltd vs. Maurice Ochieng  Maengo CA 46/2001 CA 181/2000 (unreported) where the plaintiff  sustained  injuries  in an industrial accident  resulting  in amputation of his left  hand  and arm at the level above  the elbow  joint.  He was awarded kshs 400,000 damages for pain,  suffering  and  loss of amenities.

92.  In this case it  was submitted  that the plaintiff suffered  more serious injuries such that he could not secure any other employment since he was retrenched and had developed  diabetes  and  lost his  libido with constant  backache.

93. The defendant on the other hand  contended that  the  plaintiff  had failed to prove that the defendant  was negligent  or in breach  of  the common law duty  of care.  Reliance was placed  on several  cases namely Oluoch Eric Gogo  v Universal Corporation Ltd [2015] eKLRon the common law  employer’s  duty; Halsbury’s Laws of England VOL 14 4th Edition Re issue page 34; Masinga  Ndonga Ndonge  v Kualam Ltd [2016] e KLR  on the burden  of proof.

94. The defendant  contended in its  lengthy submissions  that there  was no  breach of the common  law duty  of care and  that the injury  of 2004  was caught up by  the Limitation of Actions Act Cap 22 Laws of Kenya.

95. It  was  submitted relying on Bukenya  v Uganda  [1972] EA  549that the plaintiff failed to call Rogers Obonyo the floor  supervisor on the material day of alleged accident to whom he claims that he reported the  accident hence  it should be  inferred  that that evidence would have  been unfavourable  to the plaintiff.

96. In addition, it  was submitted  that even if the  court  was  to find that the plaintiff  fell from the  chair, the  common law duty of care was not absolute  on the part of the defendant employer  but that what is  required of the employer  is to take  reasonable care.  The case of Hudson  Luvinzu  Elanonga v Kenroid  Ltd [2016] e KLRwas cited in this  regard citing  Mwanyule  v Said  t/a  Jomvu  Total Service  Station [2004] 1KLR 47.

97. Accordingly, it was submitted that the risk of falling off the chair was not reasonably  a foreseeable risk and that in any event  the defendant company had taken reasonable precaution as  regards the conduct  of employees at the work place.

98. The  defendant also submitted that there  was  no evidence  that the plaintiff suffered  injury as  a direct result  of the defendant’s  breach of the common law  duty of care.  Reliance was   placed on Halsbury’s Laws of England VOL 33 4th Edition Re issue page 477 paragraph 663.

99.  It  was  submitted that failure  of the plaintiff  to call the  doctors  who attended to him leaves the court with the option of inferring that had the doctors  been called  they would have given adverse  evidence that the  injuries  were not  as a result  of falling  off the  chair  but attributable to  another cause.

100. Further, that DW3 testified  that  it  was  impossible  to say that  the  injuries  could have  been  caused  from falling  off a chair.  In the end, it  was  submitted that the  plaintiff’s suit should  be dismissed  with costs  to the defendant.

DETERMINATION

101. From the  pleadings, evidence both oral  and  documentary  and the parties’ advocates respective submissions supported by  authorities cited all considered,  the  following  main issues  flow for  determination:

i.Whether the plaintiff was injured on 3rd November, 2008 and if so, whether the injury sustained was as a result of negligence or common law duty of care owed to him by the defendant employer.

ii.What damages if any would the plaintiff be entitled to in the circumstances of the case.

iii.What orders should this court make?

iv.Who should bear costs of this suit?

102.  On the first  issue of  whether  the plaintiff  was injured on  3rd November 2008 and if  so, whether the  injury  can be  attributed to the negligence  and or breach  of common law  duty of care  owed to him by the  defendant, according to the  plaintiff’s testimony, he  was  employed by the defendant  on 17th January  1994  as a packer  in the security  finishing  department  but that  before being  hired, he  was   subjected to medical  examination by the company  doctors, to  ensure that  he  was  physically  and  medically  fit to do the job which  involved  lifting  reams of  paper and bank notes  weighing  between  15 kilograms  to  85 kilograms.  His  duties  entailed  packing  and  manually  carrying  bank notes  weighing  over  50 kilograms  and  in 2004 while  lifting  a box  of  bank  notes, in the security finishing department, he sprained his back.   An x-ray taken showed that he had suffered loss of lumbar lordosis resulting in muscle spasm.

103. Later on  3rd November  2008  while he  worked  as  a Senior Kugler  3 Machine Operator  which work  involved feeding the machine with paper and checking its movement of the passports, which work he performed while standing  and  seated respectively, and while  he  was checking  the  quality  of passports  which  were  in a box, as he  sat on the chair, it snapped  and gave  way upon which he  fell down  2 ½ feet under and  he sustained  a back injury.

104. That he reported the incident to his floor supervisor Rodgers Obonyo  and filled  a minor injury   form.  He went  to the  company clinic   where he  was attended to by Nelly Nyamunga who attended to him reluctantly and  gave him  pain killers  and  liniment  and   he  returned to work.  He blamed  the defendant  for the back injury for  failing to ensure  the  bolts of  the chair  were securely  fastened.

105. According to the plaintiff, after the said injury, later on 6th November 2008 while he was at his house, he developed  severe back pain  necessitating  him to go to Aga Khan  hospital but   that when he  requested  the  defendant  to send an ambulance  to take him to hospital, the  request  was declined.  He found alternative means to hospital on 7th November 2008 and later on 11th November 2008 wrote a letter of complaint to the Human Resource Manager of the defendant company.

106. Three months later on 31st March 2009 – 3rd April  2009 he was  admitted  in hospital  for  diabetes  and  severe  back pain.  An MR1 scan taken  revealed  a disc dehydration at L5-S1 and  post  central  disc  protrusion.  He  later reported the matter to the  shop steward  of their union  who promised to  investigate.  He also wrote to the company asking for compensation for the injury but was declared redundant.  He reported to the Ministry of Labour whose officials visited the company.

107. He claimed that he was  not trained to use the  seat.  The plaintiff’s witness  Dennis Masinde  Wanyonyi  also testified   and  stated that  on the material day he  was at  work in  the  Kugler  3 machine  with the plaintiff when at about  11. 00am he heard noise  and  on turning  he saw the plaintiff  had fallen  on the floor.  He saw  loose bolts.  The witness stated that when working on the Kugler  machine  as an operator, one would sit  or stand  and  would sit when checking  on the quality of the passports.  He also stated that the plaintiff reported the incident to Rogers Obonyo the floor  supervisor.  He stated that  the defendants  never  inspected the seats.

108. PW3  Claris  Ayuma Apiyo  a former  Human Resource  Manager  of the defendant only testified  on the  employment requirement  of medical examination of prospective staff to be employed by the defendant and stated that the plaintiff was, prior to his employment,  was  examined.  She stated that following   any injury, the immediate supervisor would be informed and an injury form filled.  Severe injury  cases  would  be taken to  hospital for  admission.

109. The plaintiff  produced  as exhibits  his letter of  employment  with  the  defendant, medical  treatment  notes  and  records  from the company clinic and Aga Khan  hospital, his  letters  of complaint; letter seeking compensation; letter from Ministry of Labour  and  response by the defendant; notice of redundancy; letter by clinical officer Nelly Nyamunga complaining against the plaintiff.

110. The defendant called 3  witnesses  being the Human Resources Manager; the environment, health and   safety advisor  and  a visiting doctor.

111. According  to DW1  and  DW2, the plaintiff  was never  injured  while  at work  on 3rd  November  2008  as no  report   was made  to the  immediate  supervisor of  such injury  and neither   was the injury form filled and submitted to the Environment Health and Safety Advisor by the supervisor.  DW1 and DW2  maintained  that the plaintiff’s work did not  require him to sit so no chair  was  provided for him  as Kugler  operator .  Further, that DW2 was in the Kugler  machine  room  where the plaintiff  worked on the material date but never witnessed any injury/accident.  She   only  heard about  the  plaintiff’s  injury  on 19th June 2009 after he had   left employment  when Ministry  of Labour officials visited the company which to her was supervising.  They testified that staff were trained on safety  measures.

112. DW3 Dr  Wellington Alube   was  a visiting  doctor who used to attend to staff  of the defendant  on appointment  in those cases  which the clinical officer could not deal.  He stated that the plaintiff’s condition as diagnosed could have arisen from injury, long  working  hours, posture  or age.

113. Having  assessed  the pleadings, evidence  and  submissions   of both parties, the  key question is proof.  Sections  107,108 and  109 of the Evidence  Act Cap  80  Laws  of Kenya  is clear  that he  who  alleges  must proof.  In this  case the plaintiff alleged  that he  was at the material  tine  an employee  of the defendant.  This fact was  not in dispute that he was then a Kugler 3  Operator.  The only issue in dispute is whether the defendant   was negligent   or in breach of the common  law duty of care for its employees.  Halsburys Laws of England, 4th Edition paragraph  662 page 476  states:

“ The burden  of proof   in an action for  damages for negligence  rests  primarily on the plaintiff, who,  to maintain  the action, must show that  he  was  injured  by a negligent  act  or omission  for which the  defendant  is in law  responsible.  This involves  the proof  of some duty  owed  by the defendant  to the plaintiff, some breach  of that duty, and  an injury  to the plaintiff between  which and  the  breach of  duty  a causal  connection  must be established.

114.  In Boniface  Muthama  Karita  v  Carton  Manufactures  Ltd CA  670/2003 [2015]Onyancha  J held:

“ The  relationship between the applicant  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 an  unreasonable  risk.”

115. Winfield and folowicz on Tort, 13th Edition page 203 on “Employer’s  Liability  defined” states:

“ At common  law the  employer’s  duty is a duty of care , and it follows  that the burden of  proving  negligence  rests  with the plaintiff  workman throughout the case.  It has been said that if he alleges failure to provide a reasonable safe system of working  the plaintiff must  plead, and therefore  prove  what  the proper  system  was and  what  relevant  respect  it  was not  observed.

116. In Peter  Ndungu Kinyanjui v EA Sea Food Ltd  & Another  Nairobi HCC 2905/96the court (Ang’awa J) held that an employer  owes  an employee  a duty of care  to provide  a safe  working  environment  and  mechanism.

117. In Civil Appeal (CA 151/1987 Mumias Sugar Company Ltd vs Charles  Namatitu   the Court of Appeal held that:

“ An  employer  is required by law  to provide  a safe  working   conditions  of  work  in the factory  and if  an accident  occurs  while the employee is handling machinery the employer is responsible  and  will be  required  to compensate  the injured  employee.”

118. The extent of the employer’s duty under common law towards  its employees  is captured  in the Hasbury’s  Laws of England, 4th Edition  VOL 16  paragraph  562  as follows:

“It is an implied term of the contract of employment at common law that an employee takes upon himself risks necessarily incidental to his employment.  Apart  from the employer’s duty to take  reasonable  care; an employee  cannot call upon his employer, merely upon the ground of  their relation of  employer/employee to compensate  him for any injury  which he  may sustain  in the cause of  his employment  in consequence  of the dangerous character  of the work upon  which he is engaged.  The employer is not liable to the employee for damages suffered in the cause of his employment in  consequence of the dangerous character of the work  upon which  he is  engaged.  The employer is not liable  to the employee for damages  outside the  cause of  his employment.  The employer does not warrant the safety of the employees working conditions, nor is he an insurer of his  employee’s safety.  The exercise of due care and skill suffices.  The employer does not owe  any general duty  to any employee to take reasonable care of the employee’s goods; the duty  extends  only to his person.”

119. The above position was adopted as the law applicable  in Kenya in Mwanyule v  Said t/a  Jomvu Service Station[2004]  1 KLR 47 where the Court of Appeal concluded that “ the employer  owes  no absolute  duty to the  employee and that the only duty owed is that of a reasonable care against  risk of injury   caused by  events  reasonably  foreseeable, or  which would  be prevented  by taking  reasonable  precaution.”

120. The same  Court  of Appeal  also held as such  in Makala  Mailu  Mumende vs Nyali Golf County  Club[1991] KLR 13 where it  held

“ No employer in the position of the defendant  would  warrant  the  total  continuous  security  of an employee  engaged  in the kind  of work the  plaintiff  was  engaged  in, but  inherently, dangerous.  An  employer is expected to reasonably  take  steps  in respect of  the  employment, to lessen  danger  or injury to the employee.  It is  the employer’s  responsibility to ensure a safe  working  place for its  employees.”

121. In Stephen Ondulu Rabatch v Eldoret Steel Mills Ltd [2005] eKLR the Court held inter alia: “once it is established that there is a relationship of an employer and employee, the common law duty of care of an employer towards his employee arises.”

122. At common law, the employer is not merely required to provide a safe system of work but to ensure that the employees comply with that safe system of work (see Mighosi V Gaya Engineering Works [1981]KLR 164. Providing a safe system of work would require  supervision by  the employer  to ensure  that no employee is injured on duty and of course, an employee can be found contributory negligent if  he  carelessly carries out his work or ignores instructions on safety given by the employer.

123. From the  above authorities, it is clear  that an  employer  at  common law  owed to employees  a  reasonable  duty of care to  ensure  the employee’s  safety  while  the latter is  engaged  at work, and if an employee  gets injured at work, he is  expected to be compensated where he establishes that the injury was  foreseeable  by the  employer  and   that the employer  failed to provide the employee with reasonable  care.  In other words, the employee must demonstrate  that the employer could have  done more to prevent  the  employee  from getting  injured while  at  work.

124. In the instant  case, it is not in dispute that the plaintiff    was  lawfully  employed  by the defendant  and at the  material time of the alleged  injury, he  was to be  found at  the  defendant’s  premises  working as  Kugler  3  machine  Operator.  The plaintiff claims, which is  denied by the  defendant,  that he  was  injured  when he sat in the chair placing  passports  into trays and  lifting  them so  as to arrange them into pallets when the chair suddenly descended   to a depth  of 2½ feet  and  on impact  he fell  down and  sustained a back injury  which  necessitated  him to  be attended  to at the  company clinic  and  later  at the Aga Khan  hospital for 4 days.

125. The plaintiff  also claimed that the defendant was  responsible for the accident  and  injury for  failure to adequately  and  firmly  fasten  the  chair in which the plaintiff used to sit   so as to prevent  it  from descending   below; failed to warn the plaintiff  of the risk of the  chair descending  below  and failing  to provide  a cushion, which could prevent  or minimize  injury to  the  plaintiff in the  event of   the  chair descending  below.

126. There   was denial on the part  of the defendant  of all the  above  allegations on oath by the plaintiff with the defendant contending that the plaintiff’s work required him to stand throughout  for  8 hours  and  therefore  no seat  was provided  for him  as he  was  expected  to move around  checking  on the process  of passports  and not the  finished  product  which latter  work  was undertaken  by his assistants  not him  as a Kugler  Operator. Further, that no report  of  the incident  was made  and  no filing  of the injury  form  was done as required by the company procedures.

127. Going by the above  contention  by the defendant  vis avis  the  evidence  of DW3, it  clearly  emerges  that whether  or not the  plaintiff fell  from the chair, he worked  under circumstances  which exposed  him to risk  of having  the  back problem that he  was  diagnosed  of namely, lumbar lordosis.  DW3   a Medical Doctor  who used to attend to  the  plaintiff at the  company clinic  stated that  he  had on several occasions attended to the plaintiff who  complained of backache.  Further  that lumbar lordosis could be  due to the  injury or  sitting  posture  or long  working  hours.  The defendant’s  witness  DW3  also  acknowledged  the plaintiff’s assertion that the  plaintiff was  attended  to at the  clinic  on 3rd November 2008  by Nelly  Nyamunga complaining  of  backache on and  off  and  that he had  developed  the  pain after  lifting   some  reams  of  paper earlier  on.  The medical chits  from Aga Khan Hospital also showed  lumbar  lordosis.

128. Although the defendant’s  counsel in submissions  claims that  from  DW3’s  evidence,  it was  not obvious  that the injury or pain  could have been  caused  by a fall  from the chair, it  is  this court’s  view that  a person who is not  an eye witness  like the doctor  only records  the  history  of the patient  and  proceeds  to diagnose  the ailment   but cannot  conclusively be expected to state  that the injury  or pain  was  a  result of a fall  from the  chair.

129. It  also matters not that the doctor never heard of people  falling off  chairs at the  defendant’s  premises as that  was an answer  given directly to the question asked  by the defendant’s  counsel.  The idea of ‘hearing’  of people falling  off chairs” is  hearsay evidence which is  inadmissible  in the circumstances of this case.

130. DW3 as a  medical doctor  gave different/several scenarios  and known causes  of  PID  and  lumbar  lordosis  including  old age  of above  50 years  which the plaintiff was  not  at the  time, sitting posture, or injury and long working hours.  Moreso, in cross examination the doctor candidly stated  that he  was  aware  that  there is  a department  where  workers  do heavy manual  work of carrying items  and that  some  injuries  according to the  x-ray  scans  could  have been caused  by a fall, posture  or long working  hours  or  even riding  in a matatu on a rough  road.

131. The plaintiff’s injury  was described  as LS-S1 disc dehydration  and post  central disc protrusion which DW3 explained  that it could be caused by  aging  for  those who are over  50 years  if there is no previous  injury, such that  the  disc becomes  flat  and  presses  on the spinal  code, squeezing  it thereby causing  weakness and  pain.  He  also maintained   that backache  can be  caused by injury or  sitting  for long   hours or due  to a sleeping  mode.

132. PW2  clearly  stated that he  was with the plaintiff  and  working  with him  when he  heard  unfamiliar  noise  and  on checking  behind  saw the plaintiff  had  fallen  after the chair  he was sitting  on snapped.  It is  PW2 who  informed  Rodgers  their supervisor and later  organized  for the plaintiff  to be taken  to the  company clinic  but after he had filled a  form  to show that he  was not  in the production  line, which  form  was taken by the supervisor  to take to  the  security  office which latter  would take  it to the clinic.  He  also stated  that  the form  was  not returnable  to the injured  employees.

133. I had  the opportunity  to hear and  see the evidence  of DW2  as she testified.  Although  DW2  claimed  that she  was  with the plaintiff  at work and that no accident  occurred or no form  was filled, the demeanor of this witness clearly was not  impressive.  She  appeared  determined  to keep her  job by  giving  evidence in favour  of her employer.  She was not a forthright  witness as far as this court is concerned.

134. On the other hand, I believe the plaintiff’s  testimony and that of his witness PW2 that they worked together and that indeed  it is the  seat that the plaintiff   was using  which  snapped  when he sat on it carrying  heavy box  full of passports  to check on their  quality, thereby causing him pain in the back which worsened necessitating admission at Aga Khan Hospital. The plaintiff and his witness appeared truthful and forthright, from by observation of their demeanor in court.

135. There was  no evidence  that the plaintiff  was given instructions  not to  sit while  working  as  Kugler   3 operator.  In my view  sitting  in a chair which  snaps  and  falling 2½ feet  can injure somebody.  Taking into account circumstances of this case and  evidence  on record, I am satisfied  that on a  balance  of probabilities, the plaintiff proved  a case of  negligence  and  breach of  the  duty of care  by the defendant who was  his employer.

136. Although the defendant claims in evidence that the plaintiff was not supposed to be carrying the finished passports, the defendant  never pleaded that the  plaintiff  was to be  found undertaking  unauthorized  work  or that he was at  the wrong  place when the accident occurred.  Neither  did the defendant’s  witnesses  deny that PW2 was  at the place  of work with the  plaintiff  when  the alleged  accident occurred.  There  was no suggestion by the  defendant  that PW2  could  possibly  have  lied  about what  he saw, or heard, being the unusual noise  and  the plaintiff  fallen down.  There is also  no reason why the  plaintiff and his  witness PW2  could have been  lying  that  after the fall, they informed  Rogers Obonyo who filled the form for  injury and  took it  to security before the plaintiff went  to the clinic  for medical  attention.

137. In my view, that the plaintiff  sustained  injury  on the back  when he sat on a chair carrying a box full of passports is clear. Furthermore, no passports  production log   for   3rd November  2008 was  produced  to establish  where the plaintiff  was working  on  that day and at the material time to rule  out the possibility of him  having  been engaged  in the  lifting  of the finished  passports  and checking  their  quality  as stated  by PW2 who was  with  the plaintiff  at his place of work  on the material day.

138. The defendant  has not  denied  that the  plaintiff’s company clinic medical chit  showing  that the plaintiff  was  attended  to on  3rd  November  2008 for a back injury is genuine.  In my humble view, therefore, the  defendant   was  simply  going round  the circles  and  looking for  every flimsy  reason to  displace  the plaintiff’s  evidence.

139.  From the  evidence  adduced, it is  clear that Nelly Nyamunga  the  defendant’s company clinical officer  had a very  problematic working relationship with the  plaintiff.  She  accused  him of having  a negative  attitude  and  being  nasty  whenever  he sought  medical  attention. The report written by Ms Nyamunga on the conduct of the plaintiff and produced in evidence herein by the defendant is clear testimony of this very poor relations with him. It that was the situation, I have no doubt that that may have been  the  case and  hence the  failure by the said  clinical officer to  provide details of the reported  back injury on 3rd November, 2008 sustained by the plaintiff when he visited the clinic the same day of the fall. There can be no other explanation.

140.  On the  contention  that the plaintiff  did not  produce medical reports  or call  doctors  who attended  to  him at  Aga Khan  to confirm  his injury, I note  that DW3 is the  defendant’s  own part time  doctor  and he  confirmed  the  injury  alleged  by the plaintiff.  In  addition, the  parties  agreed  and  produced  all the documents as filed by  consent without  calling their makers.  Those documents include medical reports and treatment notes from various hospitals including Aga Khan Hospital. That being the case, the defendant cannot  turn  around  and claim that the  plaintiff   did not  call the  makers of  documents which   were produced  by consent.

141. Rogers Obonyo  and  Nelly Nyamunga  were  the employees  of the defendant.  The plaintiff  lodged  this case  after leaving  employment  on redundancy and the court was not told as to when they left the defendant’s employment but clearly, there was no evidence that they left the defendant’s employment together with the plaintiff or immediately after the plaintiff’s redundancy.

142. In my  humble  view, on the  evidence available, the plaintiff  has proved  on a balance  of  probabilities  that he  was  injured  while at  work on  the  3rd November  2008   as he sat  on the chair  and  he fell down  2½ feet when the said chair snapped.

143. In my  humble view, the defendant’s submissions  call for  prove of the plaintiff’s  case beyond   reasonable  doubt, in civil cases,  which standard  is too high to  bear.

144. The plaintiff  was  clear on who  was to  blame for  the material accident, that the  seat had loose  bolts that  is why it snapped  when he sat  on it.  Further, that the said seat  had not  been serviced.  There  was  an unproved allegation that  some other persons had  fallen  while sitting on it.  The  question is whether  the defendant  employer  reasonably  took  steps  in respect  of the employment to lessen the danger of injury  to the employee, since it is  the  employer’s  responsibility  to ensure  a safe working  place for its employees and in this case, to ensure that the chair which the plaintiff used while engaged upon his work was serviced and not  defective or faulty, having regard to the fact that the plaintiff lifted heavy products in excess of 7. 5 kilograms while working ( See Makala Mailu Mumende vs Nyali Golf County Club [1991] KLR  13.

145. The defendant  denied  that it  was negligent  or that it  breached  the  reasonable  duty of  care to the plaintiff.  It  was contended that it trained  its staff  on safety measures  and provided  them with  safety  manuals.  Further, that it  had put  in place adequate  safety  precautions  to ensure  that its employees   were safe  and  secure from any injury while  engaged  at work.  It produced  in evidence  first aid/minor  injury report  form; serious incident  investigation form, and The Environment, Health and Safety  Information Booklet.

146. Among  the  exhibits produced   was a document dated  2nd July  2009  a notice  of alleged injury  correspondence  between  Elvis  Mulama  the  Environment, Health and  Safety Advisor  of the  defendant  and  Ministry of Labour  Provincial  Occupational Health  and  Safety Officer, Nairobi.  The  writer,  DW4  records that  following  the injury  allegation, the  plaintiff  had been  interviewed  and the  information  recorded. In the  additional  information thereto it  is recorded  that  “ David  had  been provided with the relevant training i.e. safe manual  handling  training  on 28th July  2006. ”

147. The relevant manual handling  is a document  produced by the  defendant.  It is document No. 16 paginated by hand at the bottom right side. There is an acknowledgment in the said manual of the following facts:

“Nearly all  of us will suffer from  back injuries  at some time  in our working  lives.  If you are required to:

· Lift  weights  in excess  of  7. 5  kilograms  ( a box  of paper on a regular basis)

· Carry  awkward  or large  loads

· Carry smaller weights on a repetitive basis.

You need to receive training in the correct manual handling techniques.  If  you are  regularly  expected to lift  and  carry items  in  De La Rue  Kenya, these  tasks  will be  risk assessed.

The assessor  will specify the training  required techniques s to be used to  minimize  risk or injury.  However , when lifting  is done  occasionally, you may not  need formal  training.  This should be identified in the risk assessment ………safety first -back  strain is  the most  common injury.”[emphasis added].

148. From the  above  exhibit, it is  acknowledged that even when  risk is minimized, injury and  especially  back injury  or back  strain at some  time in  working lives  of the  employees  occur.

149. In other words, the nature of  work at De La Rue  is such that  risk of back injury is reasonably  foreseeable  by the employer  and that is why employees are given  manual handling  training.  There  is no evidence  that the  plaintiff  disregarded  the safety  measures  put in place leading  to the accident  and  the back  injury that he suffered in the course of his duties.  The  defendant  did not  even  allege  that the plaintiff’s  injury   was  volenti non fit injuria  or contributory  negligence  or at all.

150. What  the  defendant  put forth  is a denial   of the occurrence  of the accident and or injury  on 3rd November  2008  despite the untainted evidence of PW2 who was with the  plaintiff  at work on that day  and who confirmed  that the  plaintiff  fell  when the  chair snapped.

151. The medical records produced by the plaintiff clearly showed that he had lumbar lordosis from 2004, which fact the defendant knew or had reason to know as the plaintiff was at all times attended to at the company clinic and even referred to the hospitals approved by the Company and the insurance paid. That being the case, it would be outrageous for the defendant to even allege that the plaintiff who was already suffering from lumbar lordosis to be expected to stand for 8 hours each day working. Even if the job required standing, occasional siting would not be in breach of the conditions of work.

152. As was held  by the Court of  Appeal  in Embu Public Road  Service Ltd  vs  Riimi [1968] EA 22, “…accidents  do not just  happen.  They are caused. “ This position was confirmed  by Dr Wellington who testified  that the probable  causes for  such back injuries are fall, long  working hours, , posture, old  age among   others.

153. Even assuming  that the plaintiff  never fell  when the chair  he sat on snapped, it is clear from the evidence  of  DW3  that standing   for long  hours could cause the  problem  experienced  by the plaintiff.  The defendant  has not  given  in my view, the  probable  cause of the plaintiff’s problem which is working for 8 hours  standing on the  Kugler  3 machine  without  sitting!

154. In the  Embu  Public  Road Services  Ltd  v  Riimi (supra) the  Court of Appeal  was clear and I concur that:

“ Where  the  circumstances of the  accident  give rise  to the  inference of negligence then the  defendant, in order  to escape  liability, has to  show that  there  was  a probable  cause  of the accident which does not connote negligence or that the  explanation for the accident was consistent only with an absence  of negligence.”

155. There was no evidence that the chair which the plaintiff asserts snapped when he sat on it was serviced by the defendant.  The defendant’s  witnesses, I observed, gave  their evidence  in a very  carefully couched  manner  to avoid  situations  where they  would  attribute  any negligence or breach of duty  of care  to the defendant/employer. During the defence hearing, the court had to  caution the defence counsel Mr Muchiri  all the time  as he  persistently  asked his  client’s  witnesses  leading  questions  suggesting  specific answers.

156. On the whole, this  court finds  and holds  that the plaintiff has established  on a balance  of probabilities that  he was  injured  on his back while on  duty on  3rd November  2008  and that the injury  was  caused by  a foreseeable  risk of the defendant’s  failure  to  ensure that the chair  which  the plaintiff  used at  that time  was securely  fixed  and  or serviced, to avoid  snapping.

157. There  was   nothing to  suggest  that the plaintiff  was an  opportunist or  was  lying  to the court  to get  compensation or unjust enrichment.  The plaintiff’s  claim is  that he  was injured  on 3rd November  2008  and although he alleged that he suffered  another  injury in 2004  which is beyond the time stipulated for lodging compensation claim, he never said that he was injured in  2009 as suggested by the defendant in their submissions. The plaintiff  has proved on a balance of probabilities that he was injured in 2008 and that the defendant was responsible for this foreseeable injury.

158.  In my view, the  2004  injury  could not lie as at the time of filing this suit but laid  a historical basis on his past injury to the back and the plaintiff  did not  shy away from informing  the clinical officer that he had  back problems  on and  off  but that  when he fell on 3rd November 2008 the back problem  worsened and he had to be admitted at the  Aga Khan  Hospital which  evidence is not denied.  I would therefore not  find liability  on the  2004  injury as it is statute  barred.

159.  The case of Mumias Sugar Company Ltd v Charles  Namatiti CA  151/87is clear  that an employer  has a statutory  duty of care to provide safe working conditions of work for its  employees  in factory  and  if an accident  occurs causing  injury then the employer is responsible and will be required to compensate  the  injured  employee.

160. There is  no evidence  that the plaintiff  undertook  his work   carelessly  or that  he did  not take specific  instructions  of the defendant while  engaged  at  work.

161. That  the defendant ‘s witness asked  Nelly Nyamunga  the  clinical  officer whether  the plaintiff  had reported   to her any  back  injury sustained  on 3rd November  2008  and she  stated  that no  injury  had been  reported  to her by  the  plaintiff, I find this piece of evidence to be an outright  lie because it is the same  Nelly Nyamunga who treated  the plaintiff  on 3rd November  2008 for a back problem  and  gave  him  medication.  Three days  later  he was  asking her for an  ambulance   to go to Aga Khan and they  had bitter  exchanges.

162. Ms Anne  Mwadzumbo  was the  Assistant  of  plaintiff and although she never   testified, and neither did Rogers Obonyo testify, there was no evidence that  having  left the  defendant’s employment, the two were  available   for the plaintiff to call as a witness but that he deliberately  avoided them for this court to conclude that had the plaintiff called them as witnesses, they would have given adverse evidence to his case.

163. That the plaintiff did not follow the procedure for reporting an accident is a fallacy incapable of belief and in my view, such failure to follow procedure for reporting accidents is not fatal to the plaintiff’s case as there is evidence from his witness PW2who was present in the accident area when the accident occurred and the witness confirmed that they reported the matter to the floor manager who even filled an accident and injury form and submitted it to Security before the plaintiff proceeded to the company clinic for medical attention by My Nelly Nyamunga.

164. In the end, I find and hold that the plaintiff has proved on a balance of probabilities that the defendant  is100%  liable  for the snapping of the chair  and the injury  caused to the  plaintiff’s  back on 3rd November, 2008.

165. This leads  the  court to determine  what  quantum of damages  would  sufficiently compensate  the  plaintiff for  the  injury sustained.  Undeniably, the plaintiff  had  a  back injury when the chair that he sat on while carrying passports snapped and he fell down. He had earlier been diagnosed with a disc dehydration and  post central disc  protrusion, while  on duty.  He  was  treated  at the defendant’s clinic.  The condition of his back worsened after the fall and he had  to be treated   at Aga Khan  hospital where he  was  treated  on and  off and  given sick  offs from  3rd  April  2009-13th April  2009  before he  was given redundancy notice on  6th April  2009.

166. Injury to the back is a serious injury even without any fracture.  However, there was no prediction on permanent  disability.  The plaintiff wholly relied on the medical and x-ray notes. The plaintiff  sought  damages  of Kshs  1,200,000 relying  on the case of  Messay Jaggery Ltd  v  Maurice  Ochieng  Maengo (supra)where the Court  of Appeal  awarded Kshs  400,000 damages for injuries sustained by the plaintiff involving  amputation of his left  hand and  arm  at the level above  the  elbow  joint.

167. In Raphael  Oloo v Industrial Plant  E.A. Ltd Nairobi  HCC  4400/87the plaintiff sustained injuries  on the hand, lower back and lost 6 teeth, had severe low backache and could  not lift  heavy objects  Kshs  1 million was  awarded.

168. The plaintiff’s counsel urged the court to award him Kshs  1,200,000 because  he had  developed  diabetes  which he  has to  control  by regular  medications,  he lost  libido  and has constant  backache. There was, however, no medical evidence linking loss of libido to the injury in question.

169. The defendant did not propose any figures on quantum of damages.

170. In awarding damages, the principles applicable  are now settled.  They include fairness, reasonable and moderation and decided cases( stare decisis).  Assessment of damages is in the discretion of the court which discretion must be exercised with wise circumspect and upon some defined legal principles (see  Kanga vs Manyoka [1961] EA 705,709; 1013; Lukenya  Ranching and Farming Co-operative Society Ltd v  Kavololo[1979] EA 414, 418,419.

171. In this case, the plaintiff  complained  of  persistent  backache  and  DW3  confirmed that  indeed from the  medical  treatment  records and  x-rays taken  that muscle  spasm is a  muscle  sprain  due to  a fall or posture  or working for long  hours.  He stated that protrusion of the disc can press  the  spinal code squeezing it thereby causing  weakness  and  pain.

172. In the circumstances I award the plaintiff Kshs 1,200,000 general damages for pain, suffering and loss of amenities, taking into account inflation and time lapse  since  the Raphael  Oloo (supra) case  was decided.  I also award the plaintiff costs of this suit and interest  at court rates. Interest to accrue from date of judgment until payment in full.

Dated, signed and delivered in open court at Nairobi this 18th day of September, 2017.

R.E. ABURILI

JUDGE

In the absence of parties

C/A: GEORGE