Jaggi Renovators Limited v Evans Martin Otieno Orimba [2017] KEHC 1527 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 8 OF 2012

JAGGI RENOVATORS LIMITED …………………………. APPELLANT

VERSUS

EVANS MARTIN OTIENO ORIMBA ……………………RESPODENNT

JUDGMENT

The respondent was injured in the course of employment with the appellant.  He brought a suit against the appellant for damages blaming the appellant for breach of contractual obligations by assigning him duties without due care and attention, and thereby exposing him to damage or injury.  The respondent also blamed the appellant for failing to provide a safe working environment, implements and protective devices.

The appellant denied the respondent’s allegations and in the alternative pleaded that if the respondent was injured in the course of his duties, he wholly and or substantially contributed to the occurrence.  The respondent was blamed for performing unauthorised duties in a dangerous manner, failing to follow instructions or take precautions for his own safety and failing to put on protective gadgets provided by the appellant.

The appellant also relied on the doctrines of res ipsa loquitorandvolenti non fit injuria.  After the trial however, the trial court found the appellant liable to the respondent and proceeded to award him damages.  In so doing the lower court stated as follows,

“Are the defendants to blame? The defendant had not supplied the plaintiff with any belt.  Indeed boots had not been supplied which would have protected the plaintiff from injuries.   I would hold the defendants 100% liable.”

The court then proceeded to award the respondent a sum of Kshs. 320,000/= general damages plus Kshs. 2,000/= special damages.  Aggrieved by the said judgment the appellant filed this appeal faulting the trial court for erroneously holding the appellant liable against the weight of evidence, and failing to take into account the evidence of the appellant’s witnesses and submissions.

The appellant also faulted the trial court for holding it liable yet the respondent did not prove any injury to the required standards, and in any case the finding on general damages was ‘inordinate and unnecessarily high’.

I have made an independent assessment of the evidence on record which however is very brief.  That notwithstanding, I am persuaded that the appellant owed the respondent a duty of care in the performance of his duties.  He was exposed to danger without proper protective gear, as a result of which he was injured.  I agree that the appellant was wholly to blame for the injuries suffered by the respondent.

Two medical reports were produced by the respondent in evidence.  One was by Dr. R.P. Shah and the other by Dr. S.K. Mwaura.  These reports are contradictory in relation to the injuries sustained by the respondent.  Dr. S.K. Mwaura’s report which is dated 9th October, 2010 showed that the respondent sustained a fracture to navicular bone right foot and a traumatic injury to the surrounding fracture site.  The report further shows X-ray was done which confirmed the fracture and a plaster cast applied.

The date of injury was 11th December, 2005 which means Dr. S.K. Mwaura was examining the respondent five years after the said accident. The respondent had healed leaving residual pain which would subside gradually.  The report by Dr. R.P Shah is dated 8th September, 2011.  It also noted the fracture to the right foot which was treated by plaster immobilization.  The same report however states that original X-rays showed no fracture.

The respondent had fully healed with no foot abnormality and permanent disability is 0%.  The contradiction I cited earlier relates to the fact that whereas Dr. S.K. Mwaura stated the respondent suffered a fracture, Dr. R.P Shah does not agree.   Indeed, the trial court noted this conflict and stated that he was striking a balance in making an award of general damages. This court is faced with the same dilemma in assessing general damages. As the court is guided by medical reports in assessing general damages, I consider  there is no dispute the respondent was injured.  However I have  reason to interfere with award made by the trial court considering the conflicting medical reports.  I therefore reducle the award of  Kshs. 320,000/= to  Kshs. 200,000/=.  To that extent only this appeal succeeds.

There shall be judgment in favour of the respondent against the appellant in the sum of Kshs. 200,000/= general damages plus Kshs. 4,000/= special damages.  The respondent shall have the costs of the suit and interest at court rates calculated from the date of the lower court judgment.

Orders accordingly.

Dated, signed and delivered at Nairobi this 14th Day of November, 2017.

A. MBOGHOLI MSAGHA

JUDGE