[2022] KEHC 9827 (KLR)

Ayoki Fabricon PVT Limited v Maru & another (Civil Appeal 24 of 2017) [2022] KEHC 9827 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9827 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 24 of 2017

PJO Otieno, J

July 14, 2022

Between

Ayoki Fabricon PVT Limited

Appellant

and

Benard Maru

1st Respondent

Mumias Sugar Co. Limited

2nd Respondent

(Being an Appeal from the Ruling and Order in Butere SPM’s Criminal Case No. 206 of 2013 delivered by Hon. C. A. S. Mutai (Principal Magistrate) on 25th November 2016)

Judgment

1. The 1st Respondent brought a suit against the Appellant and claimed general damages for personal injury he allegedly suffered while at work and blamed the Respondents under the tort of negligence and or breach of statutory duty.

2. The cause of action was pleaded to the effect that on or about the October 29, 2022 while on duty and performing work as directed by the Appellant, and in pushing a wheelbarrow, the Respondent sustained blunt injuries; to the chest, head and both legs and knees. The Respondent pleaded that he was employed by the Appellant who had been contracted by the 2nd Respondent to carry out construction works on the 2nd respondent’s premises.

3. The suit against the second Respondent was withdrawn on the February 27, 2014 by consent. Accordingly the suit proceeded against the 1st Respondent only and I do consider that the joinder of the 2nd Respondent to this appeal was erroneous. I will thus view the appeal as solely against the 1st Respondent.

4. In the defence filed by the Appellant, all allegations of employment of the Respondent, the grant of a contract to the Appellant including the duty to provide safe system of work, the occurrence of the accident and the pleaded injuries were denied together with the blame worthiness attributed to the Appellant. All the particulars of negligence, injuries and special damages were all denied with an alternative prayer that if any accident ever occurred out of which the Appellant was injured, then the same was occasioned by the sole or contributory negligence of the Respondent. Such particulars were set out to include, volunteering to the injury, working while intoxicated, being a trespasser, performing duties not instructed, failing to use commons sense, failing to adhere to the safety regulations laid, placing himself in a latently dangerous position and being careless in the circumstances and causing the accident.

5. There was an additional without prejudice and alternative plea that if the accident ever occurred, then the same was outside the scope and control of the Appellant in that no amount of exercise of care, diligence and skill could have obviated the accident which was solely due to the negligence of the Respondent; that the 1st Respondent deals in mechanical engineering involving no civil works at all and lastly that the Appellant was never its employee. On those facts the Respondent prayed that the suit be dismissed with costs. To that defence no Reply was filed.

6. After the matter was set down for hearing, the Appellant called two witnesses being himself and a doctor while the Respondent did not adduce any evidence despite the matter being adjourned twice to enable him avail the witnesses. In those circumstances, the pleadings filed by the Appellant amounted to no more than bare allegations devoid of any probative value

7. In evidence the Respondent said that he was on the material day engaged as a casual worker with the Appellant when he was assigned the duty of carrying metal bars on a wheelbarrow. He was executing such duty when he hit a metal bar hidden on the slippery floor and fell on the wheelbarrow he was pushing and got injured on his head, both legs and chest.

8. He sought treatment at Mumias Medical Centre and issued with sick sheet which he produced as Exh.P1. He also produced a gate pass as Exh.P2 while medical report was produced as Exh.P3. He blamed the Appellant for the injuries because the wheelbarrow was overloaded and the piece of metal on the ground was hidden so as not to be seen to avoid being hit.

9. On cross examination the Appellant asserted having worked for the Respondent for a period of twenty nine (29) days and was paid by it the sum of Kshs. 9,000/= at the end of the month. He said payment was after a period of month and confirmed that the month of October has 31 days and that on payment he was not given any document to show engagement or even payment. He said he never went back to work after the accident and affirmed having been employed by the Appellant and not Mumias Sugar Company Limited, and that the treatment sheet was taken away from him by a Supervisor called Mr. Alwanga.

10. The second and last witness was Dr. Charles Andayi who gave evidence to the effect that he saw and examined the Respondent with a history of an industrial accident on the October 29, 2011. He picked from the history that the Respondent having suffered blunt injures to the head, chest and both legs and was treated at Mumias Sugar Company Medical Centre and was shown a photocopy of a Referral form from the cogend company, Mumias Sugar.

11. Systematic examination revealed nothing significant but he concluded that the Respondent had suffered moderate soft tissues which had healed completely by the date of examination on the August 9, 2013. He then produced the medical report as Exhibit P11(Sic).

12. In cross examination, the witness admitted doing medical reports for advocates and that when he saw the Respondent after years, did not see treatment notes and thus he could not be specific.

13. In the Judgment, now appealed against, the trial court in its assessment of the evidence isolated eight (8) issues for determination and in its conclusion found that the Respondent were (sic) lawfully employed by the Appellant and was at the material time engaged in such employment and that the accident was occasioned by negligence of Appellant through his agents from which it was liable. The court however apportioned liability at 70:30 in favour of the Plaintiff. The court proceeded on its task and mandate in assessment of damages and made an award of Kshs. 180,000/= subject to the contribution.

14. That decision aggrieved the Appellant who preferred the current appeal setting out nine (9) grounds of appeal. Even if so escalated and cleaved the attack on the Judgment is that the trial court failed to sufficiently consider and evaluate the evidence led and thus misdirected itself thus arriving at an erroneous decision on whether or not there had been proved negligence and that in the assessment of damages the trial court failed to apply the correct principles and thus arrived at an assessment of damages which was inordinately too high.

15. The task of the court as a first appellate court is to reevaluate and reappraise the evidence on record afresh and to come to own independent conclusion, of course always keeping in mind that it lacks the benefit enjoyed by the trial court in seeing and hearing the witnesses testify and observing their demeanour.

16. The burden of proof in civil cases remain firmly upon the Plaintiff as the person who wishes the court to believe on the facts of his claim and he would failed if no evidence at all was led

17. As pleaded, the court needed to be satisfied that there was evidence of employment, the fact of injury causation thereof and the extent thereof. In an attempt to discharge such onus, the Respondent produced copies of a gate pass and a Referral letter from Mumias Sugar Company Limited, Factory Cogen Project. No explanation was given why the originals could not be produced and no attempt was made to shed light on the evident overwriting on the dates on the rubber stamp and date of the said document. Unfortunately even the defence did not seek clarification on those anomalies during cross examination. A clarification would have been important for example why there is a consistent overwriting on the four dates on the Referral letter to change the year from 2020 to 2010. There is even overwriting on the date to read 29th from a different date.

18. The first point is that the primary evidence rule should have been upheld with the court complying with the provisions of Sections 67 & 68 Evidence Act which provides that the content of a document are proved by the document itself. Before the trial court, there was no compliance with Section 68 before a document other than the original was produced and admitted in evidence. In addition the documents produced were bare copies not even certified as commanded by Section 66 to constitute secondary evidence. Furthermore there was no compliance with Section 69 of the Evidence Act prior to the evidence other than primary evidence being tendered and admitted.

19. I do find that the documents availed to prove employment were produced contrary to the mandatory requirements of the law and thus were unlawfully so produced. If unlawfully produced, the same cannot be the basis to prove employment of the Respondent with the Appellant. The unlawful production of the documents and the obvious alterations thereon leads the court to the conclusion that the evidence availed did not prove the case within a balance of preponderance. On that basis alone, I would allow the appeal and find that the pleaded fact of employment between appellant and the Respondent was not proved so as to enable the court to proceed to the next level of determining whether or not there was negligence proved against the Respondent.

20. That decision could rest the outcome of the appeal but I would delve briefly on whether the evidence led did prove negligence or breach of statutory duty of case. In his own evidence the Respondent was allegedly instructed to perform menial/unskilled duty of carrying metal bars on a wheel barrow and was in the cause of pushing the same wheelbarrow when he allegedly lost control of the same after hitting a metal bar on the ground leading to him falling upon the wheelbarrow and its load atop and sustaining the pleading injuries. The question the trial court would have posed for answer is what is it that an employer of such a worker would do to obviate them from getting hurt by falling upon the wheelbarrow one is pushing. It is important to note that there was never allegation that the tools provided were not the appropriate tools for the performance of that task.

21. This court finds that the Respondent was fully in control of the wheelbarrow and how it was to be pushed and operated and that the Appellant had no residual control in the manner and speed the wheelbarrow was to be pushed. In the circumstances no liability ought to have touched against the Appellant and in apportioning liability as the trial court clearly erred. The error is more apparent that there was no reason advance at all on how the apportionment of liability was arrived at.

22. It merits stating that a judicial pronouncement must be a conclusion derivable from evidence led and any deductions made even if based on inference ought to be backed by reasons. Where there is no reason advance, the decision ceases to be judicial. When no judicial it loses the clothe of a judgment and an appellate court has no otherwise but to set it aside.

23. On the question of the quantum assessed, the court takes the view that assessment of damages is known to be a difficult task and rested upon discretion and it takes a very strong case for an appellate court to interfere with a decision made upon exercise of judicial discretions. On these principles the court finds no reason to interfere. The court does not view the sum of Kshs. 150,000/= to meet the description as too high and inordinate to manifest an outright error in assessment of damages.

24. In conclusion, the appeal succeeds to the extent that the finding on liability against the Appellant is set aside and in its substituted a Judgment dismissing the claim for want of sufficient proof. The costs of the appeal is awarded to the Appellant.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 14TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the AppellantMs. Wanyonyi for the RespondentCourt Assistant: Kulubi