[2015] KEHC 2120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 603 OF 2006

ALI BHAI SHARRIF& SONS LIMITED.....................................……APPELLANT

VERSUS

JACKSON LUMUMBA SHIJENGA…........................................….RESPONDENT

(Appeal from the original judgment and decree of Hon. J. Were (RM) in Milimani Commercial Courts, CMCC No. 12166 of 2004 delivered on 2ndAugust 2006)

JUDGMENT

1. The appellant Ali Bhai Sharrif & Sons Limited was sued by the respondent Jackson Lumumba Shijenga, seeking compensation following an accident which occurred on 16th February, 2002 when the respondent was working for the appellant. Upon hearing the matter, the trial court apportioned liability at 70:30 in favour of the respondent. The magistrate further, held that on the issue of quantum, an award of general damages amounting to a sum of kshs 90,000/= and special damages amounting to kshs 1,500/= together with cost of the suit and interest.

2. Being dissatisfied with the trial court’s judgment, the appellant filed this appeal on the following grounds, where pertinent that:

a. The Learned Magistrate erred in law and in fact in finding that the respondent's back pain was aggravated by the accident yet it was proven that the accident would not have caused it as it was entirely an independent condition;

b. That the Learned Magistrate erred in law and fact by finding that the respondent was entitled to damages;

c. That the Learned Magistrate erred in law and fact in entering judgment in favour of the respondent at the same time holding that it was the respondents responsibility to call for help or seek weight which he could have stabilized himself.

3. This being the first appeal, it is my duty to re-evaluate the evidence tendered before the trial court and arrive at an independent conclusion taking into account the fact that I did not have the advantage of hearing the witnesses. (See: Peter v. Sunday Post (1958) at Pg. 429).

4. The appellant’s case was that, in 2002, the respondent fell sick and produced a resignation letter and asked for his dues and leave. He had a letter from Glory clinic that confirmed the sickness since 2000. According to the letter he was suffering from aestima. His request was granted and was paid in full. They have no record of injury of the respondent. Procedure demands that once an employee is injured, they should report to the Human Resource manager and necessary treatment is undertaken. On cross examination, he testified that; they paid the respondent his dues in full according to payslip number 2792. They paid him using cheque dated 23rd March 2002. They do not have a file for recording injuries only but in case of such injuries, it is recorded in the personal files.

5. The appellant called Dr. Simon GithauWairagu,who testified that he saw the respondent on 30th August 2005. He examined him and he did not find any scar to suggest that he had suffered any injury. He sought an x-ray report that showed osteoarthritis. He opined that the osteoarthritis could have been caused by age, lifting heavy objects, injury to the back and poor sitting position. The fall did not cause the degree of osteorthritris but it contributed to it getting worse. The erectile disfunction could only happen if there was pressure on the nerves that supply the genitals.

6. The respondent’s case was that, he was an employee of the appellant where he was tasked with selling and arranging wares including cement. On 16th June 2002, he was arranging the cement bags. To arrange them, he was required to climb on a shelf, lift the cement and place it on the higher shelf. The weight eventually overwhelmed him causing him to fall on a shelf that was behind him. He hurt his lower back and the manager who was present at the time took him to town and offered him kshs 200 for ointment. He went to Kenyatta National hospital for an x-ray. A report was compiled to that regard and a receipt issued which were marked as exhibits 1 (a) and (b). He was further treated at glory medical clinic where he was issued with a card, treatment notes and receipts marked as exhibits 3 (a) -(e). He still cannot carry heavy loads, walk for long or bend due to the fall. He blamed the appellant for failing to employ enough workers or providing a ladder to use to reach higher shelves.

7. The respondent called PW1, a Doctor Moses Kinuthia who examined him on 25th August 2004 and perused his treatment notes from Glory Health Clinic. He stated that he examined the respondent on 25th August 2004. He confirmed that the respondent complained of pain on the lower back, unable to bend or carry heavy load. He examined him and found moderate tenderness on palpation of lower lumbar spine and left iliac crest. He concluded that the injury was of moderate severity and had hampered his productivity predisposing him to early osteoarthritis. On cross examination, he testified that the back pain was not prudent to obtain an x-ray. He could not tell the onset of the osteoarthritis and the respondent did not inform him of pain prior to the fall.

8. The appellant submitted that the respondent had pains before the accident. The trial court acknowledged that the back pain was not purely as a result of the accident and acknowledged that the respondent ought to have sought for help knowing the nature of his work. Subsequently, since the back pains were not caused by the accident, the appellant should not have been held liable.

9. The respondent submitted that the respondent did indeed suffer from back pains prior to the date of the accident but the same was aggravated after the accident. The respondent argued that he fell from a height and no evidence was adduced to rebut that fact. He also argued that liability apportioned at 70:30 was fair. On the issue of damages, he submitted further that, it is not in dispute that the respondent was an employee of the appellant and that he suffered injuries causing him pain and suffering in the course of business hence being entitled to damages. He argued that the appeal should be dismissed as it holds no water and that it is intended to deny the respondent the fruits of his judgment.

10. I have considered the submissions and the law. Issues of determination include:

i. Whether the appellant was liable for the accident,

ii. If liable; whether the damages awarded were reasonable.

11. The main issues that arise in this case as an industrial matter is; Firstly, was the respondent injured? Secondly, was the employer negligent? Thirdly, if so, what is the favorable quantum of damage? The relationship between the employer and employee is crucial as the employer owes a duty of care to his employee.

12. In this case, it is not disputed that such relationship existed. It is also not disputed that the respondent suffered from back pains before the accident. Both the doctors adduced evidence that the fall might have aggravated the pain. They both diagnosed the respondent with a condition referred to as osteoarthritis. According to doctor Moses Kinuthia,the respondent did not inform him of having pain prior to the fall. He termed the injury as of moderate severity. Doctor Simon Githauon the other hand said that he did not identify any scars on the respondent that would signify that he had suffered from a fall. However the x-ray he was presented with showed that the respondent suffered from osteoarthritis. He went further to explain the circumstances under which an individual can acquire the condition. He stated that the same can be caused by aging, lifting heavy objects, injury to the back and poor sitting position.

13. Firstly; I note that none of the doctors could squarely attribute the back pains to a fall. They opine that in the event that there was a fall, it could have worsened the osteoarthritis. Taking into consideration the causes of osteoarthritis, then this court is left with doubt as to whether the fall really occurred and if it did indeed occur, was it the sole cause of the worsening of the back pain? Doctor Simon Githau, in his expert opinion stated that that, the back pain would have arisen due to other conditions which apply squarely to the respondent due to the nature of his work. The respondent daily duties included lifting heavy objects. He was also of an age that could have contributed to the problem.

14. Secondly; on the issue of apportioning of liability, it is purely discretionary. The principles upon which the appellate court can interfere with the decision of the trial court as far as apportionment of liability is concerned are well settled. In the case of Karanja –Vs- Malele[1983] KLR page 142), the court held that;

“Apportioning of blame represents an exercise of discretion with which this court will interfere only when it is clearly wrong or based on no evidence or on the application of a wrong principle.”

15. In my view, therefore, the issue of liability cannot be established by the doctors but by the party asserting such a right. At what point should an employer be deemed negligent? I believe it is when it is established that he omitted to do that which was required of him or committed actions that were negligent. In the Court of Appeal case of Purity WambuiMurithii v Highlands Mineral Water Co. Ltd [2015] eklr,the court held that:

“…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.”

16. I would therefore find that the learned magistrate erred in finding that contributory negligence on the part of the employer was proved at the ratio of 70:30. The issue was an alleged fall that has not been proved to have contributed to the condition of the respondent. I don’t see how the employer in this case would be said to have been negligent as to be held liable. I therefore agree with the submissions of the Appellant that no liability was established by the Respondent against the employer for being negligent.

17. Having found liability against the employer was not established, the appeal against liability must succeed. Consequently, the order entering judgment on liability is set aside and is substituted with an order dismissing the suit.

18. The Appellant is also awarded costs of the appeal.

Dated, Signed and Delivered in open court this 25rd day of September, 2015.

J. K. SERGON

JUDGE

In the presence of:

.....................................................for the Appellant

.....................................................for the Respondent