Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NUMBER 74 OF 2018

SPIN KNIT LIMITED....................................................................................APPELLANT

VERSUS

BENARD KIPLANGAT CHERUIYOT.....................................................RESPONDENT

(Being an appeal from the judgment of Hon. JB Kalo (CM)

Delivered on 22nd May, 2018 in Nakuru Civil Suit No. 291 of 2007)

J U D G M E N T

1. By a plaint dated 28th March 2017, the plaintiff/respondent filed suit against the defendant/Appellant seeking judgment against the defendant in the following terms:

a. General damages

b. Special damages; future medical expenses and loss of earning capacity,

c. Costs of the suit

d. Interest on (a) and (b) above at court rates.

2. It was the plaintiff/respondent’s case that at all material times he was employed as an electrician by the defendant who was duty bound to take all reasonable precautions for his safety while he was engaged upon his work and not to expose him to any risk of danger or injury which it knew or ought to have known and to provide him with a safe and proper system of work.

3. That on 31st December, 2006 while the respondent was working he was electrocuted and he sustained serious injuries which he held the appellant responsible. The respondent set out the particulars of negligence and breach of the employment contract in the plaint. He averred that he sustained injuries which included electric Shock with loss of consciousness for about fifteen (15) minutes, electric burns on the forearms and hands. He also set out the particulars of special damages.

4. The defendant/appellant filed its defence dated 28th April 2017 and denied the respondent’s case in toto. The defendant contended that if the accident occurred which was denied then the same was substantially contributed to by the plaintiff/Respondent. The injuries sustained by the Respondent were also denied and the Appellant further averred that the suit was premature and the respondent was not entitled to any costs.

5. After a full trial, the learned trial magistrate entered judgment for the plaintiff/respondent in the following terms:

(i) Liability against the Appellant 100%

(ii) General Damages Ksh.500,000/-

(iii) Special Damages Ksh.92,270/-

(iv) Loss of future earning capacity Ksh.353,070/-

(v) Costs of Future Medication/treatment Ksh.50,000/-

(vi) Costs of the suit.

6. The Appellant being aggrieved with that decision vide its Memorandum of Appeal dated 18th June 2018 appealed to this court on the following grounds;

a.THAT the learned trial magistrate erred in Law and fact in failing to properly evaluate the evidence adduced and thereby reaching conclusions of fact as far as causation is concerned that is at variance with the evidence adduced.

b.THAT the learned trial magistrate erred in Law and fact in holding the defendant liable when there was/is no evidential basis of such liability and when the evidence adduced established that it was indeed the plaintiff who was responsible for ensuring safety in respect of electricity and any failure at the material time could/can only be attributed to the plaintiff as the senior most electrician on duty at the material time.

c.THAT the learned trial magistrate erred in law and fact by failing to appreciate that the subject accident of the plaintiff while foreseeable to the plaintiff as an electrician was not foreseeable to the defendant as an employer and it was incumbent upon the plaintiff himself to take any or all safety measures that were necessary in the circumstances.

d.THAT the learned Magistrate erred in law and in fact in making findings of fact on the absence of switches in the boiler room and thereupon finding the defendant liable in negligence when there was no evidence on record to that effect and when the plaintiff himself could still ensure his safety even if there were indeed no switches at the material place. In other words there was no established causal connection between the particular switches and the accident.

e.THAT the learned magistrate erred in law and fact in making award of damages especially on loss of future earning capacity that was not proved at all and that was not warranted.

f.THAT the learned trial magistrate erred in law and in fact in making award of general damages for pain and suffering and loss of amenities that was excessive in the circumstances.

7. The Appellant thus prayed for the following;

i. The Judgement/Decree of the Honourable Court dated 22nd May 2018 be reviewed and or set aside and in its place substituted judgement/decree that is reasonable and derivative of proper evaluation of evidence on record.

ii. The Respondent be ordered to bear the costs of this Appeal.

SUBMISSIONS

8. Parties agreed to canvass the appeal through written submissions.

APPELLANT’S SUBMISSIONS

9. The Appellant filed its submissions on 21st April 2021.

10. With regard to grounds 1-4 of the Memorandum of appeal, the Appellant submitted that the respondent is duty bound to prove his case in line with the provisions of Section 107-109 of the Evidence Act.

11. The appellant relied on the following;

i.  Haley vs London Electricity Board (1965)AC 778where the court stated that negligence requires that fault be proved against the defendant. Proof cannot be implied by the fact that an accident occurred.

ii.  Mount Elgon Hardware vs United Millers Limited C.A No.19 OF 1996(UR) where the court held that

“it is elementary learning that in claims involving allegation of negligence the particulars of such negligence must be particularly pleaded …it is still the duty of the party alleging negligence to prove the same”

iii.  Submitting that that the elements of negligence have been known to comprise of duty of care, breach of duty of care and injury suffered as a result of that breach of duty of care, the appellant relied definition of ‘duty ‘ in Charlesworth & Pery On Negligence, 9th Edition,Sweet & Maxwel,(1997)P.19 that the word “duty’ connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances. The appellant argued that unless such duty was established then an action in negligence could not succeed.

iv.  Boniface Muthama Kavita vs Carton Manufactures Limited in which the court held 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.”

12. Making reference to the evidence of the plaintiff who was PW1, the appellant submitted that  the plaintiff testified that someone had turned on the switch while he was fixing a motor causing electric power to flow through the wires resulting in the injuries. However, he never mentioned this person, and provided no proof that he saw this person.  That in any event the plaintiff had been working in the company for more than two years  as an electrician, he was an expert at his job familiar with the company’s electrical connections and switches and he was required to have checked whether the wires he was fixing were live. That to that extent he was negligent. That the fact that the plaintiff confirmed in his testimony that he used insulated materials while at work was proof that he was supplied with safety apparatus and it was not in control of the appellant to ensure that the respondent checked on the wires before fixing the motor. That the plaintiff was duty bound to observe the safety rules and guidelines of the defendant.

13. It was the appellant’s position that the respondent was to blame entirely for the accident. The respondent did not comply with the appellant’s procedure that all injuries pertaining to work place should be reported to the relevant supervisor for the action to be taken. The accident register did not reflect any accidents having occurred on the alleged date.  The Respondent failed to prove negligence allegations against it.

14. The appellant submitted that as per the evidence of DW1 which was corroborated by DW2 it was clear that all appellant’s employees were provided with all and necessary facilities and apparel to ensure safe execution of their work, that they were given all the necessary and applicable training, information and instructions to ensure their safety and as such no negligence or breach of contract was established against the Appellant.

15. The appellant further relied on the cases of Bagologoza vs National Parks Trustee (1974) EA 201, Timsales Ltd vs Stephen Gachie, Statpack Industries vs James Mbithi Munyaoand the case of Purity Wambui Muriithi vs Highlands Mineral Water Co.Ltd [2015] eKLRand reiterated that  accident was foreseeable  to the respondent as an electrician whereas the same was not foreseeable to the Appellant as an employer and it was incumbent upon the respondent himself to take any or all safety measures that were necessary in the circumstances.

16. Citing from the subordinate court’s judgment, the appellant argued that the learned trial magistrate drew conclusions of negligence on the part of the appellant on the fact of the switches being outside the boiler room. The appellant argued that there was no causal connection between the switches being outside the boiler room and the alleged

17. To bolster the above position the Appellant  relied on the case of Mwanyule vs Said T/A Jomvu Total Service Station [2004] 1 KLR 47, where the court affirmed that

“the employer owes no absolute duty to the employee, and the only duty owed is that of reasonable care against risk of injury caused by events reasonably foreseeable, or which would be prevented by taking reasonable precaution”

18. The appellant thus stated that it owed no duty to the Respondent other than that of reasonable care and prayed that this suit be dismissed with costs to it or in the alternative this court do find that if the accident occurred then the same was substantially contributed to by the respondent’s own negligence and therefore liability should be apportioned.

19. On ground 5 of the memorandum of appeal the appellant relied on the case of Sj vs Francesco Di Nello & Another (2015) eKLRwhere the court stated that;

“……it is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earning is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages”

20. The appellant also relied on the case of Mumias Sugar Company Limited Vs Francis Wanalo (2007) eKLR where the court stated that;

“Loss of earning capacity can be claimed and awarded as a part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case……..”

21. The appellant cited the case of Butler vs Butler which set down the principles to be considered in respect of a claim for loss of earning capacity.

22. The appellant submitted that the award of Kshs. 353,070/- awarded by the lower court as loss of earning capacity was excessive in the circumstances and that the same should be awarded as part of general damages. The appellant urged the court to follow Kemfro Africa Limited vs A.M Lubia & Olive Lubia (1985) eKLR and interfere with this award.

23. On  the last ground of appeal, the appellant relied on the case of Joseph Musee Mua vs Julius Mbogo Mugi & 3 Others [2013]eKLR  which court opined that;

“Damages for injuries suffered must be within consistent limits. The damages should represent a fair compensation but should not be excessive.”

24. And the case of Ossuman Mohammed & Another vs Saluro Bundit Mohumed which quoted the case of Kigaragari vs Aya (1982-1988)1 KAR 768 which court stated that;

“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large damages are inevitably passed to the members of public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees”

25. The appellant stated the injuries that were pleaded by the respondent and made reference to permanent disability that was awarded by both Dr.  Kiamba and Dr. Malik and further referred to this court to the cases of Eldoret Steel Mills Ltd Vs Jeremiah Njuguna Karanja [2011]eKLR which awarded Kshs.100,000/- to the plaintiff who has suffered 4% degree burns to the left and right knee joint, bilateral burns to both legs and elbow joint & the case of Devki Steel Mills Ltd vs Jared Osodo [2014]which the court set aside lower court’s award of Kshs. 170,000/- and substituted it with Kshs.80,000/- in respect of burns on the left shoulder, lower abdominal walls, left waist and buttock, both lower legs and feet and on both upper legs .

26. The appellant placed reliance further on the case of Pan Africa Chemicals Ltd vs Benson Kimani Nganga [2019] eKLR where the court awarded Kshs. 400,000/= as general damages to the respondent who had sustained ¾ burns over the forehead and ears, left side of the chest, left side of the abdomen, both arms and both legs and submitted that an award of Kshs.250,000/- is sufficient to the respondent under this head as he has healed and leading a healthy life.

RESPONDENT’S SUBMISIONS

27. The Respondent filed his submissions on 21st May 2021 in which he set out an analysis of the evidence on record as to the circumstances that led, demonstrating the appellant’s negligence.

28. He submitted that the Appellant owed him a duty of care and cited the case of Eastern Produce (K) Limited Kibwara Tea Estate vs Salome Cheptabut Chebangu [2017 eKLR which defined duty of care, negligence and breach off duty and addressed the issue of reasonable foreseeability and proximity.

29. The appellant submitted that it was the Appellant’s responsibility to ensure that standard care is exercised to protect the respondent against risk of harm and failure to do so render them liable for the subsequent injuries and damages.

30. The respondent referred to this court to the provisions of section 3 and 6 of the Occupational Health and Ssafety Actand submitted that it was demonstrated during trial that the appellant failed to meet its obligations as it failed to provide him with a safe system and procedures of work. He concurred with the lower court’s finding that found the appellants 100% to blame for the accident.

31. On general damages, the respondent stated the injuries he pleaded the evidence on record regarding his injuries and submitted that the lower courts award under this head was not inordinately high as he sustained serious injuries that require future surgeries.

32. The respondent placed reliance on the case of Kenya Power & Lighting Co.Ltd vs Nehemiah Wachira [2014] eKLR, which the plaintiff therein was electrocuted and sustained injuries to his hands with 5% permanent disability and the court awarded Ksh.500,000/- as general damages for pain, suffering and loss of amenities.

33. On loss of earning capacity, the respondent submitted that evidence placed on record established he was a trained electrician and was only twenty four (24) years old at the time of the accident. That he is unable to hold his tools of trade because his fingers are now deformed and his hand is weak and as such he cannot engage in gainful employment for the skills and knowledge he trained and qualified for.

34. The respondent relied on the case of Rockmasters Limited vs Isaac Kabue Miringu [2017] eKLR which held that;

“Loss of earning capacity is a diminution of earning power and is usually awarded as part of the general damages and proof of a balance of probability. There is however nothing improper if the award is made under separate headings as long as there is no overlap off the awards”

35. The respondent thus submitted that the trial court applied the relevant factors and principles based on the evidence adduced in court in reaching its award under this head and prayed that the instant appeal is unmeritorious and should be dismissed.

ISSUES FOR DETERMINATION

36. The issues arising from the parties’ submissions are as follows:

a.  Whether the trial court erred in finding that the Appellant was 100% liable for the accident herein;

b.  Whether the trial court erred by awarding the respondent loss future earning capacity;

c.  Whether the award on general damages for pain and suffering and amenities was excessive.

Whether the trial court erred in finding that the Appellant was 100% liable for the accident herein

37. In Common Law, an employer owes a duty of care to his employee.  Halsbury’s Laws of England, 4th Edition, Volume 15 at paragraph 560:-

“At common law an employer is under a duty to take reasonable care for the safety of his employees in all the circumstances so as not to expose them to an unnecessary risk.”

38. But the duty of care must be within specific confines of the law. It must be reasonable and foreseeable in circumstances and situations in question. See KreativeRoses Ltd vs OlpherKerubo Sumo(2014) @ KLR, HC at Nakuru Civil Appeal No.151 of 2008in which Omondi, J. while referring to Halsbury’sLaws of England stated:-

“The Court of appeal quoting Halsbury’s Laws of England in the case of Mwanyale Said T/A Jomvu Total Service Station stated as follows:-

“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 relation of employer and employee to compensate him for any injury which he may sustain in the work upon which he is engaged.  The employer is not liable to the employee for damages suffered outside the course of his employment.  The employer does not warrant the safety of the employee’s working condition nor is he an insurer of his employee’s safety, exercise of due care and skill suffices.”

39. In the case of Segwick Kenya Insurance Brokers vs Price Water House Coopers Kenya, High Court Civil appeal No.720 of 2006 (Nairobi)the learned Lesiit, J. cited the case of Caparo Industries Ltd PLC vs Dickman & Others(1990) 1 All ER, 658, where the House of Lords held thus:-

“The three criteria for the imposition of a duty of care were foreseeability of damage, proximity of relationship and the reasonableness or otherwise of imposing a duty of care.  In determining whether there was a relationship of proximity between the parties the court, guided by situations in which the existence, scope and limits of a duty of care had previously been held to exist rather than by a single general principle, would determine whether the particular damage suffered is the kind of damage which the defendant was under a duty to prevent and whether there were circumstances from which the court could pragmatically conclude that a duty of care existed.”

40. With regard to an action in negligence it is stated in Halsbury’s Laws of England, 4th Editionat paragraph 662 at page 476 as follows with respect to  what is required to be proved in an action such as the Appellant’s:-

“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 connection must be established.”

41. In addition in Winfield and Jolowicz on Tort,Seventeenth Edition the nature of an employer’s duty is explained in detail in paragraphs 8-10 to 8-14 at pages 376 to 382, which in summary is the duty to take reasonable care so to carry on operations as not to subject persons employed to unnecessary risk, and this includes the duty to provide competent staff, adequate plant and equipment, a safe place of work and a safe system of working.

42. The essentials of an action for breach of statutory duty are also stated in Clerk & Lindsell on Torts, Eighteenth Edition at paragraph 11-04 page 600 as follows:

“1. The claimant must show that the damage he suffered falls within the ambit of the statute, namely that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect.  It is not sufficiently simply that the loss would not have occurred if the defendant had complied with terms of the statute.  This rule performs a function similar to that of remoteness of damage.

2. It must be proved that the statutory duty was breached.  The standard of liability varies considerably with the wording of the statute, ranging from liability in negligence to strict liability.

3. As with other torts, the claimant must prove that the breach of statutory duty caused his loss, which he will fail to do if the damage caused his loss, which he will fail to do if the damage would have occurred in any event.

4. Finally, there is the question whether there are any defences available to the action.”

43. In Kenya the employers statutory obligation to ensure safety at the workplace is domiciled in the Occupational Safety and Health Act (Chapter 514 of the Laws of Kenya), under section 3 it is stated as follows:

“(1) This Act shall apply to all workplaces where any person is at work, whether temporarily or  permanently.

(2)  The purpose of this Act is to—

(a)  secure the safety, health and welfare of persons at work; and

(b) protect persons other than persons at work against risks to safety and health arising out of, or in connection with, the activities of persons at work.”

44. Section 6 (1) and (2) of the Occupational Safety and Health Act that an employer’s duty of providing a safe working environment is not restricted only to it areas of control. The said provisions are as follows:

“(1) Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace.

(2)  Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes—

(a)  the provision and maintenance of plant and systems and procedures of work that are safe and without risks to health;

(b)  arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c)  the provision of such information, instruction, training and supervision as is necessary to ensure the safety and health at work of every person employed;

(d)  the maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks to health;

(e)  the provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employees welfare at work;

(f)  informing all persons employed of—

(i) any risks from new technologies; and

(ii) imminent danger; and

(g)  ensuring that every person employed participates in the application and review of safety and health measures.

45. 52. The Court of Appeal sitting in Purity Wambui Murithii vs Highlands Mineral Water Co. Ltd, [2015] eKLRstated as follows:

“Section 6(1)of the Occupational Safety and Health Actprovides:-

“Every occupier (employer) shall ensure the safety, health and welfare at work of all persons working in his workplace.”

It, therefore, follows that as a general rule the employer is liable for any injury or loss that occurs to his employees while at the workplace as a result of the employer’s failure to ensure their safety. Does this mean that the employer would always be liable in all circumstances regardless of what caused the accident in question? We do not think so. We say so because where an accident happens due to the employees own negligence it would be unfair to hold the employer liable. Further Section 13(1) (a) of the Occupational Safety and Health Act provides: -

“13(1) Every employee shall, while at the workplace –

(a) ensure his own safety and health and that of other persons who may be affected by his acts or omissions at the workplace.

Therefore, the employee is also required to take reasonable precaution to ensure his/her safety at the workplace while performing his/her duties.”

46. In the instant case, the respondent testified before the lower court that on the material date he was assessing a breakdown on the boiler suction fan motor. That the motor is three meters above ground and it is accessed via a ladder. He confirmed that he switched off power supply from the main switch and climbed up and started reconnecting the motor and while connecting the second wire he was electrocuted on both his hands.

47. On cross examination he confirmed that he had been working with the appellant as an electrician for a period of two years and that he knew the steps he was supposed to take.  He switched off the main switch before changing the motor. He stated that he informed the operator and the production supervisor that he was working on the motor. He testified that he had not been supplied with gloves by the Appellant and while he was working on the motor someone switched on the main switch and as a result he was electrocuted and he sustained severe injuries. He stated that the switch should have been near the machine he was operating.

48. DW1 confirmed that the respondent was electrocuted while on duty on the material date of 30th December, 2016. He was informed some machines did not have enough steam and was being worked on by the plaintiff. He stated that since the motor is heavy he assigned the plaintiff two people to assist him lift the same and fix it. At around 6. 00 p.m. he heard the attendant shouting that the plaintiff had been electrocuted and he switched off the main distributor board while the boiler attendant switched off the switch supplying electricity to the boiler. He blamed the plaintiff for not switching off power and that being an electrician switching off power was his responsibility.

49. On cross examination he stated that he confirmed he did not see the plaintiff remove the old motor and install the new one. That he was not there when the plaintiff was electrocuted and that he switched off the main distribution board and the boiler attendant switched off the switch supplying electricity to the boiler which was outside the boiler room.

50. DW2 testified that while on duty on the material night there was a steam failure. He stated that the plaintiff was the shift electrician who was to replace the defective motor. He stated that the plaintiff was assisted by another employee the lift the motor. While the plaintiff was installing the motor he was electrocuted. He stated that they switched off the power on the main panel and took the plaintiff to the hospital. He stated that the plaintiff knew the precaution to be taken more than anyone else.

51. On cross examination he stated that he plaintiff removed the defective motor and returned with a replacement motor accompanied by three employees. That the replacement was being done above ground and one had to go up the stairs.

52. From the evidence on record it is apparent that the plaintiff was injured while lawfully carrying out his duties as an electrician. It is evident from the record that the respondent upon being informed that the motor had a problem, went and removed it to replace it with another one. He did so with the assistance of other employees. To do so they must have switched off the power. It is after the other employees had left him working on the motor that the respondent was electrocuted. Clearly someone switched on the power. It is admitted that the switches were outside the boiler room. The respondent was inside the boiler room somewhere off the ground. He had been working on the motor. The fact that the switches were not within his sight as he worked created the danger that a person outside could switch on the power without his knowledge. This fact was clear from the subordinate court’s judgment. The trial magistrate was not wrong to draw the conclusion that this very important aspect of the case was wholly within the control of the appellant. The court was right in its holding since it is the statutory duty of the appellant/employer to know the risks posed by installing the main switch outside the boiler which is accessible also to other employees. He owed a duty of care to the plaintiff as its employee in ensuring that the main switch is installed in an area where one could monitor while fixing a defective motor

Whether the trial court erred by awarding the respondent future earning capacity which had not been proved;

53. The plaintiff pleaded that due to the injuries he sustained he has not been able to work as an electrician and earn a living as the bread winner of his family. He was employed as an electrician earning a monthly income of Kshs.19,615/= gross pay and he prayed for loss of earning capacity. During hearing he testified that he has not fully healed and he could not carry heavy loads, or use a screw driver because his fingers were deformed and weak.

54. Dr. Kiamba in his Medical report dated 24th May 2017 opined that the respondent’s wounds on the fingers healed forming contractures on the right index and middle finger and the left 3rd and 4th fingers and has a hypertrophic scar on the right thumb. The function of both hands are reduced and awarded him a permanent disability of 20%.

55. Dr. Malik in his medical legal report dated 25th May 2017 also opined that partial incapacity of a permanent nature to date. He awarded the respondent 2% permanent disability for the flexion deformities in his right index and middle fingers and the left middle finger. He also awarded 6% permanent disability for the left ring finger which according to him was slightly more stiff than others cumulatively the plaintiff suffered 10% disability.

56. Both doctors were in agreement that the respondent suffered permanent disability even though the assessed degree thereof differed. The doctors reports corroborated the respondent’s testimony that he could not lift heavy objects or use a screw driver as an electrician due to deformities occasioned to him as an electrician. The plaintiff capability was clearly reduced as a result of the accident.

57. In the case of Cecilia Mwangi & Another vs Ruth W. MwangiCA No. 251 of 1996as hereunder;

“Loss of earning is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as proved on a balance of probability.”

58. Butler vsButler[1984] KLR 225, the issue of awarding damages for loss of earning capacity was carefully considered and Chesoni Ag. JA (as he then was) said,

“Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading ---. Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable.”

59. It is evident from the authorities herein that it did not matter that the subordinate court made the award under a separate head. What mattered was whether the plaintiff had established that loss. Indeed, from the two medical reports, the plaintiff’s capacity to earn had been reduced.

GENERAL DAMAGES FOR PAIN & SUFFERING, LOSS OF AMENITIES

60. The court in the case of Ossuman Mohamed & Another vs Saluro Bundit Mohumed,Civil Appeal No. 30 of 1997 (unreported)wherein the following passage, in the case of Kigaragari vs Aya [1982 – 1988] IKAR 768 is employed;

“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees.”

61. An appellate court can interfere with a trial court’s assessment of general damages, the principles for interfering with the trial court’s award are well established in Salim Zein And Another vs Rose Mulee MutuaCivil Appeal No. 147 of 1994where the court stated that;

“The appeal court must be satisfied either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damage.”

62. In  Mbaka Nguru and Another vs James George RakwarNRB CA Civil Appeal No. 133 of 1998 [1998] eKLR it was held that:

“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

63. In Telkom Orange Kenya Limited vs I S O minor suing through his next friend and mother J N [2018] eKLR it was held;

"General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed inStanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLRthat: ‘Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.’”

64. According to the plaint, the respondent sustained electric shock with lost consciousness for a period of about fifteen (15) minutes and electric burns on both forearms and hands. After the accident he was admitted from 31st December, 2016 to 1st January 2017.  He was discharged home and later readmitted 11th January, 2017 up to 20th January, 2017 when he was discharged home on treatment and followed up in the outpatient clinic. The respondent at the time he was first examined by his doctor and later re-examined by the appellant’s doctor he complained of stiffness of the right index and middle fingers, stiffness of the left middle and ring fingers. During hearing he told the court that he had not fully healed.

65. The trial court award was based on the parties written submissions. The respondent proposed Kshs. 900,000/= as general damages based on Kenya Power & Lighting Co.Ltd vs Nehemiah Wachira[2014] eKLR where the plaintiff was electrocuted and sustained injuries to his hand and Dr Malik awarded 5% permanent disability. The court awarded a sum of Kshs.500, 000/= as general damages.

66. The appellant submitted that Kshs.150, 000/= as general damages citing the case of Eldoret HCCA NO.64 OF 2007, Eldoret Steel Mills Ltd vs Jeremiah Njuguna Karanja[2011]EKLR in which the plaintiff sustained 4% degree burns to the left and right knee joint, bilateral burns to both legs and elbow joints and the court awarded Ksh.100,000/= and also the case of Devki Steel Mills Ltd vs Jared Osodo [2014]EKLR where the plaintiff sustained burns on the left shoulder, left lower abdominal walls, left waist and buttock, both legs and feet and on both upper legs and the court awarded him Kshs.80,000/= as general damages.

67. After considering the evidence and parties’ submissions the trial magistrate awarded the Respondent Kshs.500, 000/= under this head.

68. Court of Appealin Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLRstated that;

“In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exact.”

69. In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensation (see Kigaraari vs Aya[1982-88] 1 KAR 768 Ugenya Bus Service vs GachokiNKU CA Civil Appeal No. 66 of 1981 [1982] eKLRand Jabane v Olenja [1986] KLR 661).

70. The respondent provided the trial magistrate with the recent and relevant case that enabled him assess damages under this head. The Appellant on the other hand cited old precedents.

71. In the instant appeal the appellant cited the case of Civil Appeal No. 201 OF 2012 Pan Africa Chemicals Ltd vs Benson Kimani Nganga [2019] eKLR where the court awarded Kshs. 400,000/= as general damages to the respondent who had sustained ¾ burns over the forehead and ears, left side of the chest, left side of the abdomen, both arms and both legs and submitted that an award of Kshs.250,000/= is sufficient award to the respondent under this head as he has healed and leading a healthy life.

72. The above injuries did not result in any permanent disability as compared to the ones sustained by the plaintiff herein. Contrary to the appellant’s assertion the respondent had not healed as both doctors confirmed that he would require future treatment at a cost of Kshs. 50,000/= which the subordinate court awarded.

73. Having considered the authorities set out it is my view that the award under this head was not inordinately excessive as to warrant any interference.

74. From the foregoing I find that the appellant was rightly found as 100% liable for the accident, damages awarded do not call for my interference as they are supported by the evidence and authorities cited. I come to the conclusion that the appeal is not tenable and is dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 14TH DAY OF JANUARY, 2022.

MUMBUA T MATHEKA

JUDGE

Edna C/A

Sheth & Wathigo for the Appellant

Saringi Momanyi&Company Advocates for the Respondent