Maoboo Kithama Munyalo v Slapper Shoe Industries Ltd [2020] KEHC 3602 (KLR)

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO. 155 OF 2015

MAOBOO KITHAMA MUNYALO............................APPELLANT

VERSUS

SLAPPER SHOE INDUSTRIES LTD......................RESPONDENT

(Appeal from the judgment of Honourable L. T.Lewa, Resident Magistrate delivered on 25th September, 2015 in Mombasa CMCCNO. 421 of 2013, MAOBOO KITHAMA NUNYALO VRS  SLAPPER SHOE INDUSTRIES LIMITED)

JUDGMENT

1. The appellant, MAOBOO KITHAMA MUNYALO, was the plaintiff in  Mombasa CMCC No. 421 of 2013, were he sued the Respondents,  SLAPPER SHOE INDUSTRIES LIMITED seeking for general  damages, special  damages, costs and interest as a  result of an accident  which occurred  in the course of his duty causing him to suffer injuries .

2. Vide a plaint dated 7th March, 2013, the appellant stated  that on 19th July, 2012, he was working as a machine attendant for the  Respondents. He stated that he was in the course of operating the   lamination  machine which is used to  combine material used to make  shoes when the same  stopped and his right hand got trapped between  the  rollers. He explained that  he inserted the material in  the machine   so that the same  could be pressed together with other pieces of  material and glued together via a steam chamber  beneath the   lamination  machine.

3. The appellant stated that he sustained serious  injuries and suffered  loss and damage for which he blamed the respondent as  particularized  at paragraph 5 of the plaint.

4. The  respondent  ( Defendant) filed its defence dated 15th April, 2013 in   which he  denied the  allegations at paragraphs 4,5 and 6 of  the defence. The respondent averred that if there was any accident, which it  denied, the same  was  occasioned  by the sole negligence of the  respondent, particularized  at paragraph 5 of the defence.

5. At the close of pleadings, each party called evidence  in support of  their  pleadings and thereafter  filed their  respective submissions to buttress their  positions.

6. Inher judgment, the trial magistrate  considered the pleadings and  testimonies by either party and came to the  conclusion that the  pleadings were at variance with the testimonies of the witnesses, and  she proceeded to dismiss the plaintiff’s suit with costs on 25th September,2015.

7. This  triggered the appeal by the appellant’s vide  a memorandum of  appeal dated 12thOctober, 2015 in which he has raised six (6) grounds as follows.

(a) The learned magistrate erred in law and fact in dismissing the appellant’s case  in its  entirety.

(b) The learned magistrate erred in law and fact in dismissing the appellant’s case while the plaintiff had    proved his case on a balance of probability.

(c) The learned magistrate erredin law and fact in requiring the appellant to proof the civil case   beyond     reasonable doubt.

(d) The learned magistrate erred inlaw and in fact in failing to exercise the discretion given to her by Order 2   Rule 6 (1) of the Civil Procedure Rules.

(e) The learned magistrate  erred in law and fact in failing to appreciate the fact that none of the defence    witnesses  witnessed how the accident occurred.

(f)The  learnedmagistrate erred in law and fact in relying on the submissions of the defence.

8. The appeal was admitted for haring  on 7th April, 2017 and on 7th August, 2018, parties were directed to  canvass the same by  way of  written submissions.

9. The appellant’s counsel filed their submissions on 18th May, 2018  wherein he submitted that the appellant’s case had been proved on a  balance of probabilities as required in civil case since the occurrence of  the accident and injuries sustained by the appellant is not denied by  the respondent. He also submitted that the respondent’s   evidence was  by a witness who came to the scene after the accident. He further  submitted that the court ought to have exercised discretion as  provided for under Order 2 Rule 6 of the Civil Procedure Rules and  tried the unpleaded cause of action which came into issue in the course  of cross examination .He relied on the case of DHANJI RANJI VRS  RAMBHAI& Co. (Uganda) LTD (1970) E.A 515.

10. On the other hand, the respondent’s counsel submitted that clearly  the plaintiff’s pleadings and testimony were at variance. He   emphasized this by restating/reciting the specific paragraphs of the  plaint where the appellant stated where, how and when the accident   happened and the evidence he gave in court. He submitted that from  his pleadings and evidence, the appellant did not fault anyone for the   occurrence of the accident.

ANALYSIS AND   DETERMINATION.

11. Under Section 78 of the Civil Procedure Act,the appellate court’s   responsibility is to evaluate and consider the evidence that was  adduced before the trial court and come to its own conclusion in  accordance with the law. However, in doing so, the court has to give  allowance to the fact that it neither saw nor heard the witnesses (see  also the case of SELLE VRS ASSOCIATED MOTOR BOAT COMPANY (1968) E.A. 123)

12. In considering  this appeal, I have taken  into account the grounds of  appeal, the pleadings and evidence  that was tendered before  the  trial  court, the  trial  magistrate’s judgment , submissions by either party,  cited statute and  case law.

13 I am of the view that the  issues for determination  are whether  (a) the appellant failed to prove his case to  the  required standard in   civil cases;

(b the trial  magistrate  ought to have  exercised her discretion as  provided for under Order 2 Rule 6 (1) of the Civil Procedure  Rules.

13. With regard to whether the appellant proved his case  tothe  required  standard  of civil cases, Section 107 (1)  of the Evidence Act provides   that:

“Whoever desires any court to give judgment as to any    legal right or liability dependanton the existence of    facts which he asserts must prove that these facts    exist”.

Section 108 of the Evidence Act is clear that;

“ The burden of proof in a suit or  proceedings  is on    that  person who would fail if no evidence at all  were   given on either side”.

And Section  109 of the Evidence Act provides  for proof of a particular  fact;

“That  burdenof proof as to any particular fact is on    the  person who  wishes   the court to believe in its    existence, unless it is provided by any law that the    proof of fact shall lie of any particular  person”.

14. Thus, it was upon the  appellant to prove that the respondent  was liable   in the  negligence that resulted to  the accident in which he sustained  injuries, loss and damage.

15. In matters related to industrial accident, what parties  ought to  establish are the duties that each  one   owes the other in the first  instance. The victim, such  as the appellant, is required to  show,  through  pleadings and evidence  that he was employed  by the   industrialist ( the respondents) and  was working at the time of the  accident; that the  accident occurred and  he was injured due to some   omission or  commission on the  part of the respondent and that the  accident could have been avoided or its  impact  minimised had certain  measures been taken.

16. This information, which is derived from the conditions of safety  embedded in the Employmentcontracts, is what has become  standard  pleadings of plaints as  in the instant case where at paragraph 4 it  reads;

“It was  a terms of the said employment between the plaintiff  and the defendant and/or  it was  the duty of    the  defendant  to take all reasonable precautions for the safety of the plaintiff while  he was engaged upon    the said  employment  not to expose the  plaintiff to any  risk of damages or injures of which the  defendant   knew  or ought to have known and to  provide and maintain a safe and proper system of  work”

17. For the industrialist (Respondent), the brackets of pleadings and  evidence establish the safely measures that have been put in place   and show that it has complied with the safety measures set by the factories  Act. For example, it ought to have enumerated what it has  done to  minimize accidents occurring and  to  lessen the  impact, if  at  allthey occur, say, by showing they have  provided head gear, industrial  boots and gloves, fences, guard and  stoppers  at the work  place/premises. They should also show the working system and its  safety  alongside the trainingprogrammes provided for the  workers.

18. The appellant’s(Plaintiff’s ) evidence, which is uncontroverted, was  that  there  were  three persons at the place of  work. He said that the  other two were  at the rear  where one  was to  controlthe machine with  a switch while the other  one washolding the  material . He said that  the  third one, was himself and he  was at the  front where he was   checking whether the  material was well aligned. He went on to state   that he had  bend to check  on the material when it flapped upwards  and   covered his head. And that in a struggle to  uncover his face, his   hand got sandwiched between the  roller  and the  steam tank. He said  that  he had only been issued with an overall but  no gloves.

19. The respondent’s only witness, JACOB KING’ORI MATHU (Dw1)  confirmed that he knew the appellant/plaintiff as they had worked  togetheron  the  lamination machine. Healso confirmed that they were  three of them  on the day the appellant got injured and  he was the one  standing at the  rear of the machine to switch off the same and  feed it  with  material while the appellant aligned the material. He further said  that   he heard a scream and someone telling him to switch off the   machine. He confirmed that  after  he  switched off the machine he  went  round and  saw the appellant with a  burnt and scaled had. He,  however shifted blame to the appellant by stating that the machine was  in very good condition and the material wasperfectly  the way it was   supposed to be. He went on to  state  that even if the  material was   cramped.The plaintiff ought to have told  him to switch off the machine  so that he can straighten it but he only told him to do so after  being  injured.

20. From the Appellant’s evidence to court, the uncontroverted  immediate  cause of the  accident  was the  flapping of the material  which suddenly  covered his face and in a  flurry  to free  himself,  his hand got caught  upand trapped between the rollers . I find this information was not  pleaded but it arose from the appellant’s evidence in chief and when   he was cross-examined. The respondent did not controvert this  testimony.

21. I find that the appellant’s said evidence ought to have been admitted   and taken into account as happened in the  case of  DHANJI RAMJI  VRS RAMBHAI LTD (UGANDA). The  appellant gave an account of his reaction  which I find to be a  normal reflex action expected of a  reasonable  man in the circumstances he found himself  in after  his   hand  had been Sucked up in rollers . What the respondent/defendant ought to have done was to tell  court the  measures it had put in place  to prevent the material from flapping which was evidenced to have  been  a common and expected occurrence whenever  the material was   moving.

22. Having come to this conclusion, I find  that the learned  trial magistrate misdirected herself on the law. I thereforeset aside her orders and decree dismissing the suit in its entirely and substitute the  same  with judgment in favour of the  appellant on liability.

23. However, having regard to the fact that the appellant accepted to work in a risky environmentand had not filed any request with his  supervisor for his safety,I apportion the said liability. Consequently,  the appellant is held liable at 20% and the respondent at 80%.

24. On the issue of damages, I do wish todisturb the same owing to the  severeinjuries the appellant suffered and rate of inflation. I therefore   award the  appellant .

General damages   Ksh 300,000/=

Special damages    Ksh 200,000/=

Total   Ksh 302,000/=

25. I award no costs  in the lower court  but award the appellant costs of  the appeal.

It is so ordered.

Dated and deliveredand signed this 20th day of May, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measure  restricting court operations  due to the COVID-19 pandemic and in light  of the directions issued by His Lordship the Chief Justice on …….., this Ruling has been delivered  to the parties  online with their consent they have waived  compliance with Order 21 Rule 1 of the CivilProcedureRules  which requires that all judgments and rulingsbe pronounced in open court.

JUSTICE D O CHEPKWONY