DWA Estate Limited v Charles Oyuer [2017] KEHC 1663 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 676 OF 2003

DWA ESTATE LIMITED.....................................APPELLANT

VERSUS

CHARLES OYUER......................................RESPONDENT

JUDGMENT

This is a very old appeal whose determination has taken many years. I say so because the lower court judgment was delivered on 17th September, 2003 and proceedings received in the High Court on 17th September, 2008 yet the record of appeal had earlier been filed on 15th June, 2007

The respondent sued the appellant for injuries sustained while in the course of his employment.  He blamed the injuries on the appellant for failing to provide a safe system of work, and having persuaded the lower court judgment was given in his favour awarding him Kshs. 50,000/= general damages and Kshs. 1,500 special damages, making a total of Kshs. 51,500/= plus costs and interest.

The appellant was aggrieved by the said judgment and lodged this appeal, faulting the lower court for failing to appreciate that the respondent had not proved any negligence against the appellant, and that it did not take into account the appellant’s submissions.  The appellant also faulted the lower court for making an award that was excessive in the circumstances of the case.

Both counsel have filed submissions and cited some authorities.  I have also gone through the entire record leading to this appeal.  There was some contradiction in the evidence as to whether or not the respondent was on duty, and that he was injured on 10th or 11th March, 2002.  Proof of any fact in a civil dispute is on a balance of probability.  I am satisfied on the evidence that the plaintiff was on duty carrying out duties assigned to him, and that he was injured in the course of that employment.

At the time the respondent was injured he was carrying a bundle of sisal leaves along a bushy path.  He stepped on a hole that he had not seen causing him to fall thereby injuring his back and chest.  He was treated at the appellant’s clinic and on the following day went to Kibwezi hospital.  He called Dr. C.O. Okere who examined him and prepared a medical report exhibit 1 produced in court.

His evidence is that he used to do the same duties and that he used to walk along the same bushy lines.  There is no evidence to show for how long the respondent had worked with the appellant performing the same duties, but if there was bush along the path as he alleges, he also had a duty to take care of pitfalls such as the hole he encountered that made him to fall.

On the other hand, the appellant was supposed to ensure that the environment in which its employees worked were safe, and in failing to clear the bushy path along which the employees walked was negligent on its part.  My assessment of liability is that both parties were equally to blame in the circumstances of this case, and I so find.

Dr. Okere assessed the injuries and concluded that the respondent suffered blunt injury to the back and chest.  The lower court assessed general damages at Kshs. 50,000/=.  Going by the medical report, I am unable to fault the lower court in that regard and therefore see no reason to disturb the award.

Having found that the parties were equally to blame for the injuries sustained by the respondent, I allow the appeal on liability and find that the appellant shall be liable to the respondent to the extent of 50%.  This will lead to a reduction of the award of general damages by 50% leaving a balance of Kshs. 25,000/=.

Accordingly, there shall be judgment for the respondent against the appellant for Kshs. 25,000/= general damages and Kshs. 750/= special damages.  The respondent shall have the costs plus interest at court rates from the date of the judgment of the lower court which shall also be reduced by 50% contributory negligence.

Orders accordingly.

Dated, signed and delivered at Nairobi this 9th Day of November, 2017

A.MBOGHOLI MSAGHA

JUDGE