Kenya Nut Company Limited v Samson Ogutu Rachar [2016] KEHC 5384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  828   OF 2007

KENYA NUT COMPANY LIMITED…….APPELLANT

VERSUS

SAMSON OGUTU RACHAR………..RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of Honourable Esther Boke, Resident Magistrate delivered on 4th September 2007 in Kandara RM CC No. 28 of 2007.

The appellant herein Kenya Nut Company Limited was the defendant whereas the respondent Samson Ogutu Rachar was the plaintiff in the suit before the subordinate court. The respondent  herein sued  the appellant  claiming  for general damages and special  damages  of kshs 3,000/-, costs of the suit  and interest  arising from alleging that  on 12th November  2006  while  in the course of  his employment  with the appellant, he was  standing on the walls of the water  trough cleaning coffee berries  when the slippery floor  caused him  to fall hitting  his legs  against the hard surface  and thereby getting injured.  This was by a plaint dated             19th January 2007.  The respondent blamed the accident  and the resultant injuries  he  sustained  on the negligence and or breach of statutory  duty of care of the  appellants in that:

It failed to provide  protective  apparel  to the respondent

Failed to prove a safe place for work.

Assigning duties to the respondent without any due care and attention.

Res Ipsa Loquitur.

Failing   to provide protective gear e.g. gumboots.

Failing to fully instruct the respondent as the dangers involved in the said work   and precautions to be observed.

Failing to instruct their workers about safety precautions to be observed with regard to safety of the other workers in the company.

The plaintiff alleged that he sustained injuries involving a cut wound on the medial side of the upper part of both legs below the knee.

In their statement of defence dated 14th February  2007 and filed on 15th February  2007, the appellant  denied all  the averments  contained in  the plaint including  denials  that the respondent   was their employee; that he was injured  while  engaged  upon his employment; that the appellant  was negligent  or that it breached  any statutory  duty as  alleged in  the particulars  of negligence  or breach of statutory duty. In the alternative, the appellant contended that  if at  all any accident  or injury involving  the respondent  did occur as pleaded by the respondent, which  was denied, then it was  solely caused by and or substantially  contributed to by the respondent for:-

Exposing himself to risk when he knew or ought to have known to exist.

Being careless and inconsiderate of his own safety and welfare whilst on duty.

Failing to be sober and vigilant and do everything possible to avoid getting into the harm’s way.

Failing to pay any proper attention to the surrounding circumstances to avoid being injured.

Failing to use protective  apparel and safety tools at  his disposal

Disregarding safety measures which form part of his contract of employment.

Undertaking unauthorized duties.

The appellant also pleaded the doctrine of Volenti non-fit injuria to show that the respondent voluntarily exposed himself to the known hazards   of his occupation. Demand and intention to sue was denied.

The suit  was heard by  the Honourable  Resident Magistrate who found the appellant  liable in negligence  to the plaintiff and  awarded  him general damages  of kshs 65,000/- for pain and suffering and specials of kshs  3,000/- together  with costs and interest.

Being dissatisfied with that  judgment and decree of the  trial court, the appellant herein  lodged  this appeal to challenge  the decision of the Resident  Magistrate setting out six (6) grounds of appeal in its Memorandum of Appeal  dated 2nd  October  2007 namely:

The Learned Magistrate erred in law and in fact by finding that the plaintiff had proved that the defendant was liable for the injuries sustained by the plaintiff, if at all.

The Learned Magistrate erred in law and in fact by finding that the plaintiff had proved his case against the defendant on a balance of probabilities.

The Learned  Magistrate  erred in law and in fact by failing  to give due  consideration of the  merits of the defendant’s evidence  in the suit  as to whether  the plaintiff  was injured whilst  in the cause  of this duty and within the defendant’s premises.

The Learned Magistrate erred in law and in fact by ignoring the defence witness’s testimony that the accident never occurred.

The Learned Magistrate erred in law and in fact by failing to give due consideration to the fact the plaintiff failed to report the alleged accident to the relevant authorities as per the safety regulations.

The   Learned Magistrate erred in law and in fact in awarding damages that were manifestly excessive in the view of the injuries   sustained by the plaintiff.

The appellant   therefore prayed that the appeal be allowed, judgment and decree be set aside/varied and the appellant   be awarded   costs of the appeal and costs in the subordinate court.

The parties’ advocates agreed to canvas this appeal by way of written submissions.  The appellants dutifully filed and served the respondent who never filed any and submissions and this court is now called upon to consider the submissions and the record to render its verdict.  The appellant compiled two records of appeal including a supplementary record filed on 9th November 2015 with leave of court.

This being a first appeal, this  court is  called upon and obliged  to apply  the principles espoused in Section 78  of the Civil Procedure Act  and as set out  in various  decisions  of the Court of Appeal including Selle V Associated Motor Boat Company Ltd [1968] EA 123,that this court’s   role is to re-evaluate, re-examine and reassess the extract on record and then determine the appeal on whether the conclusions reached by the trial court are to stand or not and give reasons either way.  The cases of Abok James Odera  V John Patrick Machira  CA 161 of  1999; and KPA V Kuston  (K) Ltd [2009]  2 EA ,212 are also  relevant.  In the latter  case  the Court of Appeal held that:-

“ On a first appeal from  the High Court, the Court of Appeal should reconsider  the evidence, evaluate it itself  and draw its  own conclusions though  it should always bear in mind that it has neither  seen nor  heard the witnesses  and  should make due  allowance in the respect.  Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties I the evidence.”

In their submissions  dated 20th  November 2015 and filed  in court on the same day, the appellants  in support of the grounds  of appeal submitted that  the respondent did not discharge  the burden  of proving  that he got  injured  or proving that he got injured  at the appellant’s  premises  which burden  was shifted  by the trial  court to the  appellant.  Reliance was placed on the case of KWFT V Isa Adhiambo Okayo CA No. 9 of 2014  where it was held that :

“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.  That is the purport of Section 107 (1) of the Evidence Act Cap 80 Laws of Kenya, which provides:

107 (1) whoever desires  any court to give judgment as to any legal right or liability dependent  on the existence  of facts  which  he asserts  must prove those facts  exist.”

The appellant  also relied  on Sections  109  and 112  of the  Evidence Act  which enact that the evidential burden is  cast upon any party the burden of proving  and particular  fact which  he desires  the court  to believe  in its existence as augmented by the Court  of Appeal  decision in Jenipher Nyambura Kamau V Humphrey  Mbaka  Nandi [2013] e KLR.

In this case  it was  submitted  that the trial  court relied  solely on the  respondent’s testimony  to establish that the injuries  sustained  on 12th November  2016 were sustained  from the premises  of the appellant  and that the testimonies  and documents  produced   by the appellant’s witnesses  were completely discredited  even though they were  sufficient  enough to rebut  the respondent’s oral testimony.  That the trial court  disregarded  the evidence  by the supervisor and  an employee  who were  both present  on the day and stated on oath  that  the respondent had not  been  injured at all, which evidence  was not rebutted  by the respondent.  It was contended that  the trial magistrate’s  reasons that the employee  and supervisor  still worked   for the appellant  and thus could lie on its behalf  was not only baseless but also  unfounded since it was  upon  the respondent to prove his case  and not shift  that burden  upon the appellant.  Reliance  was placed on  Maithiya  V Housing  Finance Corporation of Kenya  HCC 1129 of 2002,where the court held that  the burden  of proof lay on  he  who alleges.

The appellant  also contends  that since  the medical report of  Dr. Ikonya and treatment  notes  produced  by the respondent  were not  produced  by  the maker, there was no proof of injuries  by the respondent and the  trial court  therefore erred  in awarding  damages  for injuries  which had not been proven.  It  was further  submitted  that the  respondent  having veered  away from the procedure  laid  down by the appellant  for  its employees to acquire  treatment for injuries  sustained  at work, the medical report  and treatment  notes issued to the  respondent  outside  the recognized  procedure should  have been  vigilantly verified.  The appellant relied on Ol-Njorowa Ltd V Titus Chemati HCCA 205/2009 where the court cited Amalgamated Saw Mills Ltd V Stephen Mutuunguru HCA 75 of 2005 where it was held:

“A plaintiff must prove a causal link between someone’s negligence and his injury.  He must adduce evidence from which, on a balance of probabilities a connection between the two may be drawn.  An injury alone is not proof of negligence.”

The appellant  further submitted  that  even if  the treatment  notes  and medical report  indicated  that the respondent had been injured  the same cannot  be relied  on to  prove that  his injuries    were sustained  at the appellant’s premises. The appellant  again maintained  that the respondent did not  discharge  the burden of proof and relied on Miller  V Minister  of Pensions [1947] and implored the court  to allow the appeal, set aside  the judgment  of the lower court  and dismiss  the respondent’s suit with costs.

I have carefully considered the record; submissions and the authorities relied on by the appellant.  As  earlier  indicated, this court in making  its decision, being  the first appellate  court, must, nonetheless assess the  evidence  as adduced  in the lower  court and arrive at  its own independent  conclusion, having  regard  to the fact  that it  neither heard  nor saw  the witnesses  as they testified  and therefore  giving due  allowance  to that.  Re-examining  the evidence on record  and on determining  whether  or  not the  respondent discharged  the burden  of proof on a  balance of probabilities, the respondent  Samson Ogutu Rachar  testified as  PW1.  He stated on oath that on 12th December 2006 he was working in the factory washing coffee with Kenya nut Company Ltd at Kiahora.  When performing that job, some workers enter into a ditch while others are at the open place.  That  there are  trenches  with walls  for washing coffee and the workers alternative  such  that  the one in the trench  walk out  while the  ones out  go inside.  As he was coming out of the trench, he slid and fell hitting his chest on the wall and injuring his leg.  He produced his NSSF card to show his employer was the appellant herein.  That he reported to Mr Mbugua who was his supervisor, who advised the respondent to attend hospital for treatment.  He was treated at Kimuyu Medical Clinic and discharged.  He produced treatment notes.  The next day he returned to his place of work and continued working.  He  blamed  the appellant company  for the accident  and injuries  because  he had no protective  gears  like gumboots  which would have  stopped him from sliding  or if he  slid it would have protected his  leg from injury.  He later visited  a doctor  in Ruiru  in Plains view Nursing home, who examined him and prepared  for him a  medical report  after he paid  shs 3000/-.  He produced the medical report in question and receipt as exhibits.  He also produced a demand notice done by his advocate and send to the appellant.  He prayed for damages, costs plus the expenses he incurred.

In cross  examination, the respondent  stated that  they (workers) worked on  Sundays when there  was a lot  of work  and that on the material  day there  was a lot of  coffee to be washed as it  was  harvesting  season so that  is why he was washing on that day.  He also stated that he was a general worker since 2003.  That he used to pick coffee, macadamia nuts and even wash coffee.  He stated  that he  required  gumboot  because  he was working inside water  and  that  he  had asked  for them from the  store  on 11th but he continued  working  without them because he  had to earn  a living and fend  for his family.  He stated that he was injured on the knee and chest due to the sliding and that if he had gumboots he would not have slid.  That he reported the accident to his supervisor as was required.  That the company referred injured workers to Naidu Hospital but that the supervisor   never referred him there.  He denied going to Kimuyu with the intention of making a false report.  He denied telling the doctor at Plains view that he was injured by a moulding machine.  He  stated that he left  employment  with the appellant  after being  attacked by thugs  and on  reporting the incident  to the manager  he was told with  others to  record  a statement.

The respondent admitted that he was facing criminal charges in court but denied that he stole from the appellant and left, making him revenge by suing it.  He stated that on that material day he worked with Stephen Wafula among others.  Further, that he signed the verifying affidavit witnessed by Stephen Wafula.

In re-examination the respondent stated that gumboots would have protected him because they were not slippery.  That he explained to the Plains view doctor what he had testified about but he could not tell what the doctor recorded.  That   he was injured   at about 10. 30 am albeit he had no watch hence he could not recall the exact time.  He also stated that it was not mandatory that one had to go to Naidu Hospital. The plaintiff/respondent had anticipated to call a Mr Wafula who did not attend court so he closed his case.

The appellant called three (3) witnesses.  DW1 Gerald Mwangi testified  on oath that   he worked with  the appellant  at Kiahoha Estate  as office clerk in charge  of payroll  issues  and that issues  relating to injury  while at  work fell in his docket since he was  the one to  issue  money for attending  hospital and  recorded such reports  since the victims of  injury were paid  for the days  they  got injured while on duty  and  it was  normally indicated   in the register.

DW1further testified that where a worker fell sick and had to be assisted by the appellant, his name must be in the medical register.  He produced as D exhibit 1a and b and D exhibit 2 being Muster roll and medical register respectively.

According to DW1, he never received any report concerning the respondent’s accident or injury and that in any case, it was on a Sunday.  On that day, that there was Boniface a supervisor who would have received the report.  That the respondent was paid for having worked full hours and if he was injured the records would have indicated that he was sick.  The witness acknowledged that on Sunday persons at work were never recorded in the Muster roll or payroll but on a different register and were paid for overtime.  He produced the payroll D exhibit 3 showing that the respondent worked full time with his colleagues and was paid full 6 hours on the fateful day.  That he worked with Peter Mutiso on the overtime payroll.  That since  no accident  was reported on that  day, the respondent   was not injured  at the appellant’s premises, and  that  if he had  no protective  gears  the  supervisor  would not have allowed  him to work without them.

In cross examination DW1 stated that no accident report was made.  He admitted that he was personally not on duty on the material day because it was on a Sunday.  That the supervisor was Boniface and still worked with the appellant.

In re-examination DW1 stated that  when one  was injured he was given  a sick sheet  which he  would take to Naidu  hospital and that if the respondent  was injured he would  have been entered  in the medical  register by his supervisor then  given a  sick sheet  to attend  the  Naidu  Hospital.

DW2 Boniface Mboko Kimani testified that he worked with the appellant in the factory department as supervisor.  That he knew the respondent who worked under him.  That on 12th November  2006  he  was on  duty at the factory where the  respondent  was also working  and that  there was no  incident   of injury on that day and that if  there was any he would have received the report  as the supervisor  and he would have  taken that  report  to the manager  and got  some of his co-workers who witnessed the accident to  record  their statements.  That thereafter the victim would have been taken to the office for first aid then taken to hospital.

In cross examination DW1 confirmed that the respondent was on duty on that material day but denied that anybody was injured.  He also denied  receiving  any injury  report from the   respondent  and or stating  that it  was  a minor  injury  which he  could not  bother with.  He named other people who worked with the respondent on that day like Emmanuel Majengo, Gerald Karomi, David Gitahi and Mutiso and the ladies.  He also stated that the respondent worked until 3. 30 pm as per the overtime payroll.  He denied refusing to assist the respondent after receiving the accident report.

In re examination, the witness stated that if he had refused to assist the respondent, the latter would have gone directly to the manager who was in the office.

The appellant  also called DW3 Peter Mutiso Kamuya  who testified that he knew the respondent and that  he was on  duty with him on   12th November  2006 together  with many others   but that  the respondent  was never  injured as no report  was made  to the supervisor  Boniface Mbugua  who would  have called  the witness  and others  with the respondent  to record  statements  after which  the respondent  would  have been taken to hospital which was not the case here.

The witness maintained that there is no way the respondent  could have  been injured on that day and failed  to notify any of  his colleagues  since he  never worked  alone.

In her judgment  delivered on 4th September  2007, the trial magistrate found the  appellant   herein liable   in negligence/breach of statutory duty of care  in that  it failed to  supply the respondent  with gumboots  and that on  the evidence available  the respondent  had proved that he  was  injured  on the material day while on duty at  about  10. 00a.m and  went to  hospital  the same  day.  Further that the defence used the procedural twist to evade liability. She therefore entered judgment for the respondent on liability in the ratio of 30:70 and quantum of shs 65,000 general damages and kshs 3000 special damages together with costs and interest at court rates.

It is that judgment that the appellant herein has challenged by this appeal in its 6 grounds of appeal.

From the above  reassessment/reconsideration  of the evidence  and the record of  the lower court, and considering  the submissions  and authorities  relied on by the appellant, in my  humble  view, the following  issues  arise for determination:

Whether the respondent was injured on 12th November 2006 while he was engaged upon his work at the appellant’s premises/usual place of work.

it must  first  be emphasized  that there is no dispute  that the  respondent  was an employee of  the appellant  and further, there  is no contest that  on the material day when he alleges that he  was on duty, the respondent  and the appellant’s own records showed  that the respondent  was  indeed  on duty  on that  material  day which  was a Sunday. Nonetheless, the appellant  contends that  the respondent  never reported  any injury  on that day; that none of  his workmates  including  DW3 saw him  injured at the premises and that the  respondent  never told  anyone of his  injury and neither  did he  follow  the procedures  laid down by the appellant’s  establishment whenever one was  injured  while on duty.  Reliance was placed on Sections 107, 109 and 112 of the Evidence Act Cap 80 Laws of Kenya which are clear that whoever asserts must prove those assertions.  They also relied on the cases of Kenya Women Finance Trust V Isca Adhiambo Okayo (supra) and Jenipher Nyambura Kamau V Humprey Mbaka Nandi (supra).  The appellant’s counsel strongly submitted that the evidence of the respondent   was discredited by the defence witnesses and rebutted and that therefore the trial magistrate erred in law and fact in disbelieving the appellant’s   evidence.

Albeit   the respondent  has not  filed any submissions  in opposing   this appeal, I  have  had the  opportunity  to reassess and reevaluate the evidence  on record  and considered the analysis  by the trial court.  The  respondent in his evidence  maintained that he was injured  while at  work and while he was  coming from  the trench, he slid and  fell  hitting  his chest  on the wall and injured his leg.  He  reported  to his supervisor  Mr Mbugua who advised  him to go  to hospital  and he went for treatment  at Kimuyu Medical Clinic  and  was  discharged.  He reported back to work and  continued   as usual.

On the other  hand, the appellant’s  witnesses  maintained  that the respondent  did not  get injured  while at  work since there is  no record of  a report of injury made  by the respondent  to his supervisor who would have given him a sick sheet  before going  to hospital which  was Naidu Hospital.  That the injured personnel were usually recorded in the medical register.  DW3 who worked with the respondent on the material Sunday did not witness any injury accident involving the respondent.  The trial  magistrate  believed the respondent  and discarded  the defence  evidence  on  the ground  that the documents  produced  ( Master roll)  were  doctored.  She also found that  the pay roll  produced  as D exhibit  3  had alterations  against  the respondent’s  name on the amount paid to  him in the total dues  column and the total  hours column using white wash and written afresh.  Further, that the amounts due and hours worked were altered and no explanation was offered to court for such alterations.  She also found that the accidents register was not   conclusive and disbelieved the defence/ appellant’s witnesses who were still employees of the appellant.

From the defence exhibit accidents register produced in evidence, indeed there is no indication that any accident ever occurred on 12th November 2006 involving any person leave alone the respondent.  However,  it is  indeed  disturbing that  in the  Muster roll at page 86, the name  of the respondent is  deleted  in original hand by crossing it out completely, which also had the effect  of altering  the total dues  and total hours worked on that material day.  Similarly on page 87 of the Muster roll, the respondent’s name is No. 3 from the top and surprisingly, his total hours is charged from 6. 5 to 8. 5.  It is also indicated that on 13th November 2006 he worked for 2 hours only whereas on 12th November 2006 he worked for 6. 5 hours.  The total dues   are also altered from 270 to 370 using wite out erasure.  Whereas  this court  would  accept   as inadvertent  errors in the entries  regarding rates falling under  Nos. 318,372,165,282 and 360, since  the figure  276  was inadvertently  written under “rate” instead  of “total dues,” I refuse to be persuaded that the  erasures and  insertions under the  respondent’s  name were in any way inadvertent. Furthermore, the appellant has not given any explanation for such erasures.

Further, no explanation was offered by the appellant’s witnesses as to why there were such alterations on a carbon copy paper by original hand. For that reason,  I am  in agreement  with  the trial magistrate  that in the  absence of any explanation as to the  obvious alterations specifically targeting the respondent, the exhibit pages  create  serious  doubts in the mind of the court  as to the genuineness  of the entries, and  given that  the appellant is/was  the custodian  of those  exhibits, there was a high  possibility that its officials doctored their documents to disadvantage  the  respondent.  In addition, this  court finds that the trial court had the opportunity to see and  hear the witnesses as they testified  and she believed  the evidence  of the respondent  that he did inform Mr Mbugua the supervisor of the accident   injury and  the supervisor  told him to go to  hospital  which he did and he  produced  treatment  notes to that effect.  The respondent  also did  by a Notice to Produce dated  1st March 2007 seek for  production  of among  others, LD No. 104 filled in respect  of the incident  (Workmen Compensation Forms) but the  appellant  never produced  and no reasons  were  given for non production thereof.  P exhibit 2 is clear that it was issued on 15th November 2006 indicating trauma while on duty the same day at 10. 000a.m.  The appellant’s witnesses did not deny that the respondent   was on duty on 12th November 2006 at 10. 00a.m.  They however  deny that  he  was injured, or that  he reported  to the supervisor and moreso, they  insist  that   without  following the  laid down procedure  for reporting  an accident  and attending  at unauthorized  Naidu Hospital then  the respondent  was not injured while  at  work.  I beg to disagree with the appellant on that point and concur with the trial magistrate who believed the respondent’s   evidence that the respondent reported to his supervisor who advised him to go to hospital.  With the clear evidence of tampering  with records  without  any explanation, it is also possible  that the  appellant’s supervisor did not   want  that accident   recorded and  that  is why he simply told  the  respondent to go to hospital  without any written referral as to which specific hospital.

Further, there was no evidence tending to prove that the respondent could have been injured at any other place or premises other than the appellant’s premises. In cross examination, the appellant’s counsel tended to suggest to the respondent that the respondent had told the doctor that he was injured by a moulding machine.  However, no evidence  was tendered  by the appellant  to demonstrate  that the respondent  had lied to  the doctor  or that he  was  injured  while outside  the  appellant’s place of work.  There was also no evidence that the respondent was such a dishonest person that he could not be believed   by the court in his evidence.  Albeit the line of cross examination was tilted towards painting him as a criminal, this court has not found any evidence linking the respondent to dishonesty.

In my humble view, the respondent did prove on a balance of probabilities that he was injured while at work and at the appellant’s premises.  There is no justification placed before this court to warrant the court to interfere with the trial magistrate’s findings of fact on the occurrence of the accident.  On the contrary, the appellant’s  own evidence   was wanting  in  credibility  and hence its  probative  value  was seriously watered  down by the alterations on documents  without counter signatures and or explanations leaving an  inference  that the  documents  were altered  to the detriment  of the respondent.

In addition, it cannot be an absolute  truth and  it was not  proved on a balance  of  probabilities that failure to follow the  laid  down procedure  in reporting  an  accident perse  is prima facie  evidence  of no accident or injury having occurred  at the appellant’s  premises  involving  the respondent.  From the verifying affidavit  which was only  thump printed  by the respondent  this court takes  judicial  notice that  the respondent  was  illiterate and not well informed  hence being advised  to go to hospital without any reference  document and or  in the  absence  of any evidence that  he deliberately refused to go to Naidu hospital, this court  is unable  to find any evidence that  the respondent   was lying on the occurrence  of the accident.

In addition, this court is curious that  the appellant  did not  produce  the  workmen’s compensation form L.D. No. 104  in respect  of  the accident  and  neither  did they write  to the respondent’s  counsels  to explain  why they could not  produce it.  Neither did the appellant in their defence produce any record showing the  time when the respondent left the premises  to rule out the  possibility  that he could  have left work immediately upon being  injured and  not worked for  8. 5 hours recorded  after  erasing  6. 5 hours from the register.  That conduct  on the part of the appellant casts  doubt as to the credibility  of its evidence  by its witnesses  and leaves this  court making  an inference  that the appellant was  hell bent  to obstruct  the  course of  justice  for the respondent  by interfering   with records and deliberately  failing to record the  occurrence of accident and injury sustained  by the respondent  while  at  work on the material  day and refusing to refer him to the hospital  where  employees  ordinarily  received  treatment  for injuries  while at work.

The second issue then would be who was to blame for the material accident and resultant injury sustained by the respondent? The respondent testified on oath that he was not provided with gumboots.  That the trench where he worked washing coffee was slippery and that he blamed the defendant/appellant company because it never provided him with protective gears like gumboots.  He testified that gumboots would have stopped him from sliding   or if he slid   the said gumboots would have protected his leg from being injured.

In defence, DW1 Gerald  Mwangi the office clerk employed  by the  appellant insisted  in his testimony that no accident  occurred  to the plaintiff  and when asked concerning  provision of protective  clothing, he responded  that “ it is  not true  that plaintiff  was  not  given any protective  gears, because the supervisor  would not  have allowed  him to work  without  protective gears.  The gears are available in the store and if one does not have any or his has a problem can go to the store and get them.”

The supervisor named by DW1 was Mr Boniface Mbogo Kimani who testified as DW2 and confirmed distributing work on the material accident day and that the respondent worked under him. The said supervisor Mr Boniface Mbogo never testified that the respondent was ever provided with any protective gears while he worked in the trenches washing coffee.  Neither   was any  record  produced   to show that all the other workers   or the respondent  were issued  with the  gumboots  or any other  protective  gears  to protect them from any  foreseeable  injury while they were engaged upon their work.  In this case, therefore, the respondent’s evidence that he was injured because he worked without any protective gears/gumboots was not rebutted, and or challenged in any way.  In Halsbury’s Laws of England 4th Edition paragraph 662 page 476, it is stated that:

“ 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 convention must be  established.”

In Boniface  Muthama Kavita V Carton Manufactures  Ltd  [2015]  e KLR  Onyancha J observed that

“The relationship between the appellant 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.”

Winfield and Jolowicz on Tort, 13th  Edition  at page  2013 defines  employer’s  liability as:

“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  even 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 in what  relevant  respect it  was not  observed.”

In this case the respondent pleaded and testified that he was not provided with protective gear e.g. gumboots.  The appellant pleaded contribution and or negligence on the part of the respondent.  However, it never led any evidence to prove any of the particulars of contributory negligence.  Its witnesses  only maintained that no  accident  took place  on that day and  that no injury was suffered  by the respondent simply because  that accident  and injury  were never recorded  in the books kept by the supervisor, which this court has dismissed  on several grounds  including a finding  that there  was doctoring  of records by the appellant’s  staff as  produced with a view to obstructing  the course of  justice  for the respondent which has the effect of  discrediting  the  witnesses  and evidence   by the appellant.

There  was no evidence  led to the effect that  the respondent  failed to  use the  protective apparel if any had been provided or that he  disregarded  the  safety measures  which formed  part of  his contract   of employment.  That contract of employment was never   produced in evidence.  There was also no evidence that the respondent undertook unauthorized duties and hence, exposed himself to injury, to attract invocation of the doctrine of volenti-non fit injuria.  There  was also no evidence  adduced that  the respondent was careless, inconsiderate of his own safety  and welfare  while on duty or  that  he  was not sober and vigilant and that he failed to do all that  was possible  to avoid getting  into harm’s way; or  that he failed  to pay proper  attention to the surrounding  circumstances   to avoid  being   injured.  With persuasion that the  respondent   sustained  his injury  while in the  course  of his employment  following  admission by the  appellant’s  witnesses that indeed  the respondent was  on duty on  the material date of  accident, and in the absence of  any rebuttal of the manner  in which  the accident  occurred injuring  the respondent, and this court  being persuaded  that the respondent’s injury could not  have been sustained  elsewhere  other than in the appellant’s premises and while  the respondent   was engaged upon his work, it is  unbelievable  that such  injury  could be  mysterious or  solely caused by respondent.

The Court of Appeal in the case of Embu Public Road Services Limited  V Riimi [1968] EA 22 stated  as follows:

“ where   the circumstances of the accident  give rise to the inference  then  he defendants, 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.”

In Mumias Sugar Company  Ltd V  Charles Namatiti CA 151/87 the Court of Appeal  held that:

“ An employer  is required  by  law to provide  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.”

On the basis  of the sufficiency of evidence  adduced  by the respondent, and applying  the legal  principles s espoused  in the authorities  that I have  cited, I find  and  hold that  the appellant  had a  statutory and common law   duty of care  to provide a safe  working environment and protective  gears/gumboots  to the respondent while  engaged  upon his  duties.  I also find that the appellant failed in that duty to observe the common law duty of care by an employer of ensuring that the respondent was safe at work.  The appellant did not provide any protective gears to the respondent employee while he was engaged upon his work. The appellant was therefore to blame for the occurrence of the accident wherein the respondent slipped and fell in the trench.

The ancillary question  that  the court must pose  and  ask at this point is whether  the respondent  in the circumstances  of this case  could have  contributed to the  occurrence of the accident or  whether  he exposed  himself  to the risk of injury. From the manner  of signing of  the verifying  affidavit  by the  respondent, this court  can infer  that the  respondent  was an  illiterate  person.  In Halsbury’s Laws of England  3rd Edition  VOL 28 Paragraph 28 it is  stated  thus:-

“ where  the relationship of master  and servant  exists, the defence  of volenti non  fit injuria  is  theoretically available  but is  unlikely  to succeed.  If the  servant  was  acting  under the  compulsion of his  duty  to his employer, acceptance  of the  risk will rarely be  inferred.  Owing to his contract of service, a servant is not generally in a position to choose freely between acceptance and rejection of the risk and so the defence does not apply in an action against the employee.”

The Court of Appeal in the case of  Makala Mailu Mumende  Vs Nyali Golf County Club [1991] KLR 13 stated thus:

“ 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.”

In other words, in as much as  the employer’s duty of care towards   its employees  is not absolute  and  neither  are employers  expected to baby sit  their employees, (see Stat Pack  Industries  V James  Mbithi Munyao Nairobi HCC 152/2005), and whereas  the respondent may have   taken  upon himself  the risks  incidental to his employment, this  was subject to the employer’s  duty to take reasonable  care of  him.

In the instant case, the reasonable care was not too much.  It  was  the provision  of protective  gears to wit gumboots  which  I agree   with the respondent’s  evidence that  the boots  would have  prevented him sliding  on the slippery ground and  if he slid, he would mitigate  the injury.

Accordingly, I dismiss the assertions  by the appellant that the  respondent  failed to prove  that the appellant  was liable for the injuries  he sustained  and or that  the trial magistrate erred in finding  that the respondent  had proved  his case against  the  appellant  on a balance of probabilities.  The evidence by the respondent overwhelmingly pointed to the fault by the appellant.

However, as the respondent did not  challenge  the apportionment of liability  in the ratio of 30:70, in favour of the respondent, I would not interfere with the  trial magistrate’s finding that the respondent should shoulder  some  liability  because he was expected to see well the  environment  under  which he was working.

On the issue of whether  the general  damages  of shs 65,000 and specials  of shs 3,000/- as awarded  to the respondent  was manifestly excessive  in view of the injuries sustained  by the respondent, the court  observes   that the respondent  pleaded that he sustained  injuries involving cut  wound on the medial side of the upper part of both legs  below the knee, which was  as per doctor Ikonya’s medical report  dated 1st  December  2006 produced as  P exhibit  3.  The respondent’s initial treatment notes dated 12th December 2006 show that the respondent sustained double cut wound lower limbs.  He had not fracture or sprain.  He was treated for soft tissue injuries which had healed leaving residual pain but no permanent incapacity anticipated.  The pain, according to Doctor Ikonya, would subside. The respondent’s counsel submitted proposing an award of shs 120,000 to the trial magistrate while the appellant’s counsel did not file any submissions proposing any figure.  The trial magistrate considered the nature of injuries sustained by the respondent and the inflation factor and awarded him shs 65,000/- general damages.  The trial magistrate considered that the authorities relied on by the respondent’s counsel were not comparable as the claimants therein sustained more serious injuries.

In the present appeal, the appellant asserted in its ground of appeal No. 6, that the award of damages was manifestly excessive in view of the injuries sustained by the plaintiff.  However, there was no mention or submission regarding that ground challenging the award of damages and what it considered to be appropriate damages in the circumstances having regard to the injuries sustained by the respondent. The Court of Appeal in Butt v Khan (1982-1988) KAR 1 Claw JA  laid down principles which have  settled the law that:

“…..an appellate  court will  not disturb an award of  damages  unless it is so inordinately  high or low  as to represent  an  entirely erroneous  estimate.  It  must be  shown that  the Judge  proceeded  on wrong  principles, or that  he misapprehended  the evidence  in  some material  respect, and so  arrived at a figure which  was  either  inordinately  high or low……”

As stated earlier, the trial magistrate in the lower court took into account several factors before arriving at shs 65,000/- general damages.  It has not been  demonstrated  that he proceeded on  wrong principles   or that he  misapprehended  the evidence  in  some material respect and  so arrived at a figure  which  was inordinately high.  Accordingly, I find no justifiable basis to warrant this court to interfere with the said award of general damages.  I uphold the award of shs 65,000/- general damages and shs 3,000 special as proven and dismiss the appellant’s ground No. 6 of the appeal.

The upshot of all the above is that I find no merit in the appellant’s grounds of appeal as contained in the Memorandum of Appeal dated 2nd October 2007.  I dismiss the appeal in its entirety both on liability and quantum and uphold the   trial magistrate’s findings and decision.

On costs, I note that the respondent did not participate in the final hearing of this appeal. He never filed any submissions/arguments against the appeal.  That being the case, I order that the appeal is dismissed with each party to bear their own costs of the appeal.

I further order that the decretal sums of  money deposited  in court on 22nd October  2007 in the sum of kshs 70,000/-  by the appellant as security for due performance of decree, which  sums of  money as deposited  do not  earn any interest, be released  to the respondent forthwith.

Dated, signed and delivered in open court at Nairobi this 8th day of March 2016.

R.E. ABURILI

JUDGE