Sanate Boi Khaukha v Warimwe General Contractors Ltd [2015] KEHC 6009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CIVIL APPEAL CASE NO. 5 OF 2013

SANATE BOI KHAUKHA........................................APPELLANT

VERSUS

WARIMWE GENERAL CONTRACTORS LTD........RESPONDENT

[Being an appeal from the judgment of the Webuye Principal Magistrate's court[C. Cherono (PM)

delivered on 23rd January 2013in  Webuye P.M's  civil case no. 198 of 2011]

JUDGMENT

1. Vide plaint dated 23rd  December, 2011,  the applicant SanateBoi Khaukha sued the respondent Warimwe General  Contractors Ltd seeking for general and special  damages arising from an  incident that occurred in the course of his employment  with the  Respondents. It was his claim  that he sustained injuries and as  a result he lost his  right middle finger  which  was amputated due to the said injuries.

2.  The Respondents filed  a defence  on 3rd January 2011 where it was   admitted that the appellant was  its employee. The defence however denied that it failed to provide protective  gear, further all allegations of negligence  on its part were equally denied.

3. The matter was heard and  judgment delivered.  On the  23rd of January, 2013 . The  judgment is what triggered this appeal. The trial magistrate  did not find the respondent negligent and went ahead to  dismiss the suit. He assessed general damages at Kshs. 150,000/= .

4.  This is the first appeal and the court is charged with  the duty of looking at the  evidence  a fresh having  in mind that the trial court saw and heard the witnesses. The court must take this into account while arriving at an independent opinion.

5. In  his plaint the appellant stated that  he  was an employee of the respondent a fact which was admitted and  that on  or about 12th day of October, 2011 while on duty he sustained injuries within the premises of Nzoia Sugar Company a site where the respondent had been contracted to lay slabs. It was his evidence that while laying stones a  colleague brought  more stones  on a wheelbarrow and dropped them  where he was and  in the process one of the stones fell on him severely injuring his finger. He was taken to Nzoia Medical Centre where he was treated.

6. The Respondents admitted the facts   above save that it denied that   it had failed in its  duty of care towards the appellant as an employer.

7.  In dismissing  the case the trial court was of the view that   no negligence  was  proved against the respondent and that the appellant needed to have been careful. That  the  appellant  was the sole author  of his misfortune.

8. As regards the issue  of liability I agree  with the appellant's contention that the trial court erred.  The respondent in my view    should  have furnished the appellant with  protective  gear    which  admittedly it did not.  Secondly the colleague who placed the stones ought to have been careful. All these  against the background that the appellant ought to have taken  care of   himself so  as to  avoid   the accident.  He did not inform  the court  what steps he took so as to avoid the accident. He is not   blameless. I will apportion  negligence on his part to  25%.

9.  As regards quantum the authorities given by the parties are at variance. The court  without saying what  authorities it relied   upon gave  quantum as Kshs. 150,000/=.  The appellate court can only interfere where the   sum is inordinately low or high  so as to arrive at an  enormous estimate.  Taking into account the fact that the appellant lost a finger which has left him  with a permanent loss the sum of Kshs. 150,000/= inordinately low.  I assess  damages at Kshs. 250,000/=.

I am  guided by  Sher Agencies Ltd. V. Felix  Musumba  Civil        Appeal  no. 7 of 2010 [Nakuru],  Longonot  Horticulture Ltd.    Vs.  Isaac Omoch Kichama Civil Appeal  no. 39 of 2005 (Nkr).

10. The  trial court had assessed  special damages  at Kshs. 1,500/=,  I will not interfere with this. The appeal succeeds and since I found contributory negligence the amount will be reduced by 25% to read as follows;

Kshs.   237,500 as general damages.

Kshs.    1,175

Total.  238,675.

Costs to the  appellant.

Dated at Bungoma this 17th day of March 2015.

ALI-ARONI

JUDGE.