[2014] KEHC 1814 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 256 OF 2008

AL’S REFRIGERATION LIMITED………………………………..APPELLANT

VERSUS

TERESIA NJOKI NJAAMUNYI

EAST AFRICAN GROWERS LIMITED………………………RESPONDENTS

(Appeal from original judgment and decree in Milimani Commercial Courts Nairobi, CMCC No. 574 of 2004 delivered on 18th April, 2008 by Hon. Mr. Were)

JUDGMENT

1. The 1st respondent sued the appellant and 2nd respondent seeking compensation following an industrial accident that occurred on 4th May, 2003. The trial court found the appellant fully liable and awarded the 1st respondent KShs. 80,000/= in general damages and KShs.2000/= special damages.

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

iThe learned trial magistrate erred in law and in fact in finding the appellant fully liable for the incident that occurred on 4th May, 2003 and the subsequent injuries sustained by the plaintiff.

iiThe learned trial magistrate erred in law and in fact in failing to consider the fact that second respondent gave no evidence on whether or not the memorandum dated 2nd May, 2003 was brought to the attention of the second respondent’s employees.

iiiThe learned trial magistrate erred in failing to appreciate that the memorandum dated 2nd May, 2003 was given by the first respondent to the appellant as a confirmation that there would be no employees during the maintenance of 4th May, 2003.

ivThe learned trial magistrate erred in failing to consider the fact the second respondent did not provide protective gear to the first respondent and its other employees.

vThe learned trial magistrate erred in law and in fact in failing to make an adverse inference against the second respondent who failed to call key witnesses to testify during the hearing.

viThe learned trial magistrate erred in fact and in law in holding that Mr. Mwangi, an employee of the second respondent was under the control and supervision of the appellant’s witness during the maintenance on 4th May, 2003.

viiThe learned trial magistrate erred in holding that the appellant’s witness did not place any responsibility on the aforesaid Mr. Mwangi in the exposure of ammonia gas on the 4th May, 2003.

viiiThe entire judgment in the circumstances was erroneous for the following reasons:

a.The judgment is not in accordance with the Civil Procedure Rules

b.The learned trial magistrate failed to consider which party had the burden of proving each matter in issue

c.The judgment is not supported by evidence tendered by the parties

ixThe damages awarded are excessive.

3. The 1st respondent testified that she was on the material day working under supervision of the 2nd respondent when the supervisor Mary Anyango alerted her that they should leave the premises due to ammonia leakage. She stated that the only protective gears she had on was a dust coat. PW2, Dr. Kiama Wangai produced a medical report and confirmed the 1st respondent’s injuries as blunt vision and photophobia, difficulty in breathing chest pain and cough. His prognosis was that the injuries were caused by inhalation of ammonia gas.

4. DW1, Johnstone Papale Shivachi and DW2 , James Kungu Ndatake testified that there were notices issued to the employees and that no employee was to be at work on the day maintenance was being done.

5. It was the appellant’s contention in its submissions that there was no employer-employee contract between it and the 1st respondent therefore it was not liable. On this point it relied on numerous authorities thus:

iSelle v. Associated Motor Boat Co.& Others (1968) E A 123

iiMelitus v. Kericho Highland Service Co. Ltd (1971)EA 318

iiiUganda Commercial Bank v. Kigozi (2002)1EA 302

ivMcDermid v. Nash Dredging and Reclamation Co. Ltd (1987) 1 All ER 878

6. That the appellant could do nothing more than giving notices as they did to alert the workers not to visit the area during maintenance. The appellant argued that the workers were provided with protective gears during working hours and that on the material day, the 1st respondent was at work willingly despite the memorandum alerting the workers on maintenance having been issued. On quantum, it was the appellant’s argument that the award was too high considering that the 1st respondent suffered minor injuries.

7. The 2nd respondent on its part argued that it took precautionary measure by giving a notice of the likelihood of ammonia gas emission on the material day. It relied on several authorities to attribute liability to the appellant.

8. I am fortified by the case of Nawiundu v. A.G (1972) E.A P. 108 where Salmond on Torts 15th Ed at page 620 was quoted as follows:

“It is clear that the master is responsible for acts actually authorized by him for liability won’t exist in this case even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to an employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized that they may rightly be regarded as models although models of doing them. In other words, a master is responsible not only for what he authorizes his servant to do, but also for the way in which he does it.

If a servant does negligently that which he was authorized to do carefully or if he does fraudulently that which he was authorized to do honestly, or if he does mistakenly that which he was authorized to do correctly, his master, will answer for that negligence, fraud or mistake…”

9. The appellant was doing maintenance work under instructions of the 2nd respondent. In the circumstances I find that the appellant was liable for the accident and uphold the judgment of the trial court. On quantum I have considered the age of the cited authorities and the nature of the injury and I find the award to be reasonable.

Dated, Signed and delivered in open court this 14th of November, 2014.

J.K.SERGON

JUDGE

In the presence of:

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

...........................................................................................for the 1st Respondent

………………………………………………………………..for the 2nd Respondent