Hudson Luvinzu Elavonga v Kenroid Ltd [2016] KEHC 5903 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL  APPEAL NO.  660   OF 2011

HUDSON LUVINZU ELAVONGA …………........…………..APPELLANT

VERSUS

KENROID LTD……………………………………………RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of Honourable C.Obulutsa (Mr) Senior Principal Magistrate (as he then was) delivered on 6th December 2011 in Milimani Commercial Courts CMCC 241 of 2007. The appeal is lodged by Hudson Luvinzu Elavonga who was the plaintiff against the trial court’s decision of dismissing his suit against the defendant/respondent Kenroid Limited. The appellant’s claim before the subordinate  court  was premised  on the plaint  dated 18th January 2007 wherein he  alleged that  while he  was  engaged  upon his employment with the respondent  as a driver  and driving motor vehicle  registration No.  KAS  273 V, he  was attacked  by thugs after collecting/sales/orders and or  depositing  the defendant’s monies  at a bank due to the respondent’s alleged breach of common law duty, negligence, statutory  and or contractual  obligation on the part of the respondent. The appellant claimed that as a result of the respondent’s negligence and or breach of statutory or contractual obligations, namely:

Failing to provide  him  with protective  apparel such as  bullet  proof vest;

Exposing hi to danger;

Failing  to ensure that the plaintiff  was exposed to a safe working  environment  by adequately  securing the  motor vehicle;

Failing to train the plaintiff on safety  measures, defensive driving  mechanisms;

Failing  to provide the plaintiff with  back up security;

Failing to adequately arm the plaintiff to enable him   perform his duties sufficient protection.

The appellant also invoked the application of the doctrine of Res Ipsa Loquitur.  The appellant was shot in the left thigh, left index finger; abdomen among other injuries for which he suffered loss and damages and claimed compensation.

The respondent  filed a defence  to  the appellant’s  suit in which it  denied all the allegations of negligence  attributed to it and in  the alternative, the respondent invoked  the doctrine  of violent non fit  injuria  against  the appellant.  Further, it  pleaded  that it  was not liable  to criminal acts  of third parties  which  could not be  foreseen; is too remote  to constitute  any actionable  claim and  prayed for dismissal of the appellant’s suit with costs.

The suit proceeded to hearing before the Principal Magistrate (then) Mr C. Obulutsa.  The appellant testified in support of his claim and produced documents as exhibits.  On behalf of the respondent, Amos Kuduyu; the accountant testified denying all the allegations leveled against the respondent by the appellant.

This being  a first appeal, this court  is obliged  to abide  by the provisions of Section 78  of the Civil Procedure Act  as interpreted in the case  of Selle  V Associated  Motor Boat Company Ltd [1968] EA 123 wherein Sir Clement De Lestang  held inter alia:

“ This court must  consider the evidence, evaluate it itself and  draw its own independent  conclusions  though in doing  so it should always  bear in mind that it neither  heard witnesses and should make  due allowance in this  respect.  However, this court is not bound necessarily to follow  the trial judge’s  findings of fact if  it appears  either  that he had  clearly  failed  on some point to  take account  of particular circumstances or probabilities  materially to estimate  the evidence or of the impression  based on the demeanor of a  witness id inconsistent  with the  evidence on the case generally ( Abdul) Hammad Sarif V Ali  Mohammed  Solan [1955, 22 EACA 270].”

In addition, the Court of Appeal in the case of Mbogo V Shah & Another [1968] EA 93 settled the circumstances under which an appellate court may interfere with a decision of the trial court and pronounced itself thus:

“ I think it is well settled that  this court will not  interfere  with  the exercise  of discretion by the  inferior  court unless it is  satisfied  that the decision is  clearly wrong because  it has  misdirected itself or because  it has acted on matters  on  which it  should not  have  acted or because  it has failed to take into consideration matters  which it  should  have taken  into account  and consideration  and in doing so  arrived at  a wrong  conclusion.”

Applying  the above  principles to the instant appeal, the appellant testified as PW2 and  stated on oath that he was  working  for the respondent Kenroid (K) Ltd  as a driver  to one of  the Directors on the material date. That they would advertise, visit clients to provide out products and take orders and money from those delivered. That on 23rd September 2005, he was driving Mr Rakesh in motor vehicle registration No.  KAH 273V returning  to the company at  4pm, and  on reaching  the company premises, driving at 40 kilometer per hour, there were many  pedestrians so a person suddenly appeared on his side, brandishing  a pistol  and fired at the appellant. The bullet hit the windscreen and ripped his left fore finger and stomach.  Another thug opened the passenger door and fired at his left leg and then appellant was thrown out.  He heard the thugs shout “Toa Pesa.”  The appellant passed out and found himself admitted at St John’s Hospital.  The appellant blamed the respondent employer for reasons that they dealt with money and therefore they should have been provided him with security.  That they had deposited money at Unga House Westlands.  He produced hospital treatment notes, Workmen’s Compensation Form (LD 104), search for the motor vehicle he drove on the material day showing it belonged to the respondent and demand letter to the respondent.

In cross  examination the appellant stated  that  he had  been a driver  from May 2005  to July  14th  2006. That he was assigned the subject motor vehicle specifically to drive Mr Rakesh. That on  that material day he was on duty from  8. 30 am and left  at 9. 30 am for  work and returned  at 4pm.  He stated that Mr Rakesh was a Marketing Officer.  The appellant stated that he did not know the banks that dealt with the respondent and neither could he remember the banks they went to in Westlands on that day.  He stated that he was not given the money to bank and stated that Mr Rakesh had the money.  He stated that the company was not aware that the thugs were coming.  He stated the he was not given a bullet proof vest and that he had never seen a civilian driver being given bullet proof vests.  He stated that the company never provided them with security and that Mr Rakesh was not his witness.

In  re-examination PW2 stated that  he was not given security; the  company  was expected to defend  them and  that he did not know  if Mr Rakesh  was fully employed  then.

The appellant  also called PW1  Dr Kinuthia who examined  the appellant  on 25th June 2010 and  confirmed the injuries sustained  by the appellant  being  bullet wounds  on the left hand, abdomen and thighs.  Dr Kinuthia prepared a medical report which he produced as an exhibit 1 (a) and a receipt for shs 2000/- for the medical report preparation as P exhibit 1(b).  The Doctor testified that he relied on discharge summary and LD 104 form during the medical examination. He stated that the appellant needed physiotherapy and drugs.

The defence/respondent  called DW1 Mr Amos  Kudoyo an accountant  who testified  that the appellant  was their  driver  but  that money  and banking  was channeled  through  finance  department through PW1.  That the company had corporate customers who paid   by cheque and that marketing did not deal with banking.  He testified that on 23rd September 2005 they received cheques which were banked at ABC Industrial Area Branch.  That they did not have any bank account in Westlands.  He stated that Mr Rakesh was a Sales Executive and was never used for banking.  He admitted that the appellant was indeed shot which he stated was an unfortunate incident and not because he was dealing with money as they never handled money in their premises.

In cross examination, DW1 stated that Rakesh was still an employee of the respondent and that Eunice Nyaga was the clerk who did the banking.  That in 2005 it was Mrs Ina who did the banking.  He denied that he was responsible   for assigning   duties and neither did he witness the incident although he rushed to the scene.  He stated that cheques could be collected or send to them.  He stated that Mr Dhora Shah was in charge of marketing.

In re-examination the DW1 stated that he was sent to court by the Managing Director.

In his judgment  the Learned  Senior Principal Magistrate noted that  there  was  indeed a shooting  incident where thugs  attacked and shot the appellant  outside  the respondent’s  premises  injuring the appellant  who was on  duty.  However, he found that the respondent could not be held liable for negligence.  In his view, the appellant’s claim only lay under the Workmen’s Compensation Act.  He therefore dismissed the suit   with costs.  Had he found the respondent liable, he would have awarded him kshs 300,000/- general damages and shs 2,000/- special damages proved.

It is that judgment of 6th December 2011 which provoked this appeal.  The appellant vide his  Memorandum of  Appeal dated 21st  December  2011 sets out 7 grounds of appeal  challenging  the decision of  the trial magistrate  and contending  that:

The Honourable Magistrate erred in law and fact in finding that the appellant was attacked outside the defendant’s company premises hence no liability on the part of the defendant arose.

That the Honourable magistrate erred in law and fact by finding that the appellant was not handling the money, was merely driving and therefore the appellant was not exposed to any danger.

That the Honourable magistrate erred in law and fact by finding that the attack, injuries sustained by the appellant could not be prevented by the defendant.

That the Honourable magistrate erred in law and fact by finding that no liability accrued on the part of the defendant under common law.

That the Honourable magistrate erred in law and fact by ignoring and failing to consider the appellant’s uncontroverted evidence in entirety.

That the Honourable magistrate erred in law and fact by relying upon hearsay evidence adduced by the defendant’s witness.

That the Honourable magistrate erred in law and fact by dismissing the suit with costs.

The appellant urged this court to allow the appeal, set aside the judgment of the trial court and award him damages of shs 600,000 and specials of shs 2000/- with costs in the court below and this appeal.

The parties agreed to dispose of this appeal by way of written submissions. The appellant’s counsel Ms Achola Jaoko & Company Advocates filed submissions dated 16th July 2015 on the same date. The respondent’s counsel Malonza &co filed submissions on 9th September, 2015.

On liability it  was submitted on behalf of the appellant  relying  on the case of Peter Ndungu Kinyanjui V EA Sea Food Ltd  and Another Nairobi HCC 2905/96  where  Lady Justice Mary Angawa  held that  an employee owes an employee a duty of care to provide a  safe working environment  and mechanism, which case involved  a driver  who sustained  gunshot  wounds in the course  of  purchase and sale of fish.

The appellant’s counsel submitted that it was highly probable that Mr Rakesh collected both cash and cheques as a sales representative. That the attack occurred outside the respondent’s premises but inside  the respondent’s motor vehicle  which the appellant  was employed  to drive and therefore it   was his “work station” hence, it  was wrong  for the trial magistrate  to hold that  the incident  did not happen within the respondent’s  premises  and therefore no liability  attached.

The respondent’s counsel also faulted the respondent for failure to call their Mr Rakesh who was an eye witness.

On quantum of damages the appellant’s counsel submitted that   the appellant’s  injuries  were grievous hence he should have been awarded shs  600,000/- based on the decisions of Peter Njoroge  Gichu V Bernard  Thimangu  & Attorney General HCC 92/2000 Nakuru  and Kennedy Mutinda Nzoka V Basco Product (K) Ltd Industrial  cause No. 98/2011 wherein the claimants sustained similar injuries and were awarded kshs  409,135. 70 and 231,418 respectively.  He also prayed for costs and interest.

In their  submissions dated 8th September 2015 and filed on 9th September 2015, the respondent’s counsels Malonza & Company  Advocates supported the trial magistrate’s  findings, urging this  court  to dismiss this appeal  with costs.

In their view, the evidence by the appellant  was totally inconsistent especially during cross examination. Further, it was submitted that the respondent’s witness evidence was not challenged or rebutted. Further, it was submitted that the appellant had in any case, failed to analyze the evidence to show how the trial magistrate was wrong. That the  appellant never proved  any of the pleaded particulars of negligence against the  respondent and neither was that aspect of  negligence  mentioned  in the submissions. It was contended that  the appellant  had failed to discharge  the burden  of proving  his legal obligation of  persuading  the appellate court that  the trial court was wrong and  that in this  case the  appellant had  not made  any input  and had  thrown the appeal  to the court  to make  a blanket decision. That in the absence of any submission pointing out any misdirection or wrong doing by the trial court, the appeal should be dismissed with costs.

I have carefully considered this appeal, the grounds, the evidence tendered before the trial court, submissions therein, the submissions in support and opposition to this appeal and the authorities relied on by the parties’ advocates.

In my humble view, there are only four issues for determination namely:

Whether the trial magistrate erred in law and fact in dismissing the appellant’s suit with costs on account that the appellant had not proved negligence on the part of the respondent on a balance of probabilities.

What should have been the appropriate quantum of damages payable in the circumstances of this case.

What orders should this court make?

Who should bear the costs of this appeal?

On the first issue, it is clear that the appellant’s suit and claim was premised on the claim under common law for negligence/ breach of statutory/contractual/duty/obligations of the respondent as particularized in the plaint and reproduced in this judgment.

The extent of the employer’s duty  under common law towards its employee is captured in Halsbbury’s  Laws of England, 4th Edition Volume  16 paragraph 562 as hereunder:-

“ 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  and employee  to compensatehim 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 course of his employment. The employer does not warrant the safety of the employee’s 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.”

The above common law position was adopted as  the law applicable in Kenya in the  case of  Mwanyule V Said t/a Jomvu Total Service Station [2004]  1 KLR 47, by the Court of Appeal.  In that case, the Court of Appeal concluded  that the employer  owes no absolute duty to the employees, 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.

In the instant case, it is not disputed that the appellant was at the material time in the course of his employment with the respondent when he was accosted and shot by thugs who asked him to produce money. It is also common  ground that the appellant  was at  the material time of  the shooting by  thugs an employee of the respondent and that  he was inside  the  motor vehicle  which he ordinarily drove  a Mr Rakesh who was a sales  executive.  It is also not disputed that the shooting occasioned the appellant grievous injuries to his hand, thighs, and abdomen.  It is also not disputed that the attack by thugs took place  at or about  4. 00pm which  was day time and  at the respondent’s gate  as the appellant  approached while  returning  from his daily work of  driving  the Sales Executive.

The question is, was such risk of being attacked by thugs a reasonably foreseeable risk, such that it could be prevented by the respondent, taking reasonable precaution?And if  so, whether  the respondent  failed to take  adequate  precautions for the  appellant’s  security and safety  while  he was engaged   upon his work.

The appellant’s main complaint  was  that the  respondent did not  provide  him with  bullet proof vest and  or security  although his work  involved in or dealing  with money. That  on the material day, they had taken money for banking at Unga House, Westlands. In cross examination, however, the appellant could not remember the banks dealing with the respondent company and or the banks they went to in Westlands on that day.  He also denied being given money to bank.  He also stated that he had never seen a civilian driver being given bullet proof vests.  He reiterated that he was never assigned banking duties.

In my humble view, in the  absence of any evidence  by the  appellant that he  was involved  in  collecting and or banking his employer’s sums of  money as to require  special  security  measures to be  put in place to protect  him and  the property of this employer, or the money that he alleged he was involved in collecting and or banking, such security measures as proposed by the appellant would only have been necessary to counter armed attack. In this case, police escort and or the use of security firms and guards would have been available to provide escort services to the appellant   while carrying   money for banking purposes. However, on the evidence adduced by the appellant, this court is not  persuaded  that  the appellant  and Mr Rakesh  could have  left the respondent’s  premises at 9. 30 am  to go to  Westlands  to bank money  in an unknown bank and return  at 4. 00 pm nearly seven hours  later noting that  Imara Daima and Westlands are both within the City of Nairobi.  This court   is aware of the risks  of motorists, whether  involved  in carrying  money or not  being  carjacked  by armed  robbers, which  incidents are  common place especially in Nairobi. In that regard, and in the absence  of any evidence to the effect that the appellant was involved in the collection and or banking of the respondent’s money, it cannot  be  inferred  and there would be no  basis for  concluding  that the attack on  the appellant  was targeted because  he was  involved  in dealing  with money, which money he  could not prove at the hearing.

In my humble view, reasonable  precautions against  such risks  would mean that each motorist would require an armed  guard  or bullet  proof  vest to protect  them against any anticipated  armed  robbers, which would be a near impossibility.

I therefore find that in the  circumstances of this case, providing  bullet  proof vest or security to  the appellant  against the risk to  which the appellant  was exposed was not practically possible  and the  respondent cannot be  held to have been  negligent  in failing to provide the  same.  (See also Mini Bakeries Ltd V Reuben Kaloki Muindi [2010] e KLROkwengu J (as she then was).

In the Mini Bakeries Ltd (supra) case the respondent was involved in the job of moving around in vehicle selling bread, and collecting about shs 50,000/- per day for his employer.  He was shot at and injured by armed robbers and sued his employer in negligence/breach of statutory/common law duty of care. The trial court found the employer liable. On appeal, the learned Judge overturned the trial court’s decision and dismissed the employee’s suit.  She held inter alia:

“ This is clearly a situation where the respondent  having accepted  the job assigned  to him by the  appellant, which  involved moving  around  in a vehicle selling bread, voluntarily undertook upon himself  the risks   which were  incidental to his  employment  and indeed  to any other  motorist.  That risk included the risk of being car jacked, injured or robbed by armed robbers. The respondent did not need to be advised by the appellant not to resist armed robbers.

……..the respondent was on the right track when he filed his claim partly  under the Workmen’s  Compensation Act, Cap 236 where he would  have been entitled to compensation without  proof  of negligence  on the part  the appellant.  That limb was however not pursued nor any evidence adduced in that regard.”

The above decision by Okwengu J (as she then was) is on all fours with the present case. I have no hesitation in finding that the  trial magistrate  was  correct in  finding that  the  appellant  should have pursued  his claim under the Workmen’s  Compensation Act.  This is so because  no legal obligation arose under  common law  or tort  for employers  to provide  bullet proof vests  or armed escort to their drivers engaged  upon their  duties, in circumstances  where  no risk of  injury  was foreseeable  like in the present case.

Accordingly, I find that the trial magistrate did not err in finding that the appellant did not prove any liability in negligence or breach of statutory/common law duty of care against the respondent to warrant a finding in his favour.  That ground of appeal on liability therefore fails.

Furthermore, as correctly submitted by the respondent’s counsel, the appellant’s submissions were too generalized and made no specific mention of what error the trial magistrate made requiring correction by this court. The submissions threw the appeal at this court to investigate and which this court has endeavoured to investigate and has found that there was no error of fact or law committed by the trial magistrate. The appellant could safely get compensation under the Workmen’s Compensation Act which requires no evidence of negligence or breach of common law or statutory duty of care on the part of the respondent employer in cases where there is proof of injury by an employee while he is engaged upon his duty.

On quantum of damages, it should be noted that the appellant never raised any ground of appeal challenging quantum of damages that the trial magistrate held he would have awarded the appellant had he proved liability against the respondent employer. However, in his prayers and submissions, he urged the court to set aside the award of kshs 300,000 and award him kshs 600,000 general damages. The law is clear that parties are bound by their pleadings.   On appeal, grounds of appeal form the basis of pleadings and arguments and no party is allowed to sneak in a new ground of appeal that was not pleaded in the memorandum of appeal.

In this case, the appellant did  not lay  any basis  for seeking  out on this court  to  interfere with the discretion of the trial  court in awarding kshs  300,000 general damage had  he found the  respondent  liable. There are established principles for the appellate court interfering with the award of general damages made by the trial court.  None of those principles were claimed to have been ignored by the trial magistrate.  For example, the appellant did not  claim that  the award of  kshs  300,000 general damages  was  premised  on wrong principles or that the award  was inordinately or excessively low compared to the injuries sustained by the appellant and taking  into account  other factors  such as  awards in comparable  cases, and inflationary trends. The trial   magistrate considered the proposed shs 600,000 by the appellant based on the case Gerald Nakweya Shijenda v Attorney General HCC 2181/2001.

In my view, therefore, there being  no basis for  interfering with the  trial court’s award of  damages , and bearing in mind the injuries  sustained by the appellant  which involved gunshot  wounds on  the left index finger, abdomen and  left thigh  with  residual scars, pain and numbness of the injured  areas requiring  physiotherapy, analgesics  and nerve generation drugs, the  sum of kshs 300,000 general damages   awarded by  the trial magistrate  was appropriate  compensation for those injuries  suffered by the appellant.   I therefore would uphold that award and the proven specials s of kshs 2000/- cost of medical report by Dr Kinuthia.

The upshot of all the above is that this appeal is dismissed. The judgment of the trial court both on liability and quantum is upheld. On costs, bearing in mind  the circumstances of this  case where the appellant was an employee of the respondent and taking into account the  fact that  he suffered  grievous  injuries as  a result of  the gunshots  by the thugs, I would, in the circumstances not find it appropriate to award any costs against him. Accordingly, I order that each party shall bear their own costs  of this appeal and of the trial court.

Dated, signed and delivered at Nairobi this 17th day of March 2016.

R.E. ABURILI

JUDGE