[2017] KEHC 2937 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCA NO. 80 OF 2015

BONFACE MASHEDI ANGOLO ……………. APPELLANT

VERSUS

GENERAL EQUIPMENT CO. LTD. ……….. RESPONDENT

(Being an appeal against the judgment of Resident Magistrate Madam A. Odawo delivered on the 26th August 2015 in KISUMU CMCC No. 382 of 2006)

JUDGMENT

The appellant was employed by the respondent as a general labourer. The respondent was in the business of selling steel at its premises situated in Kisumu.

On 15th June 2016 the appellant together with about six of his colleagues were loading what he described as a metal when it fell on his right toe. As a result he sustained a fracture on the neck of the phalanx of the toe. He therefore sued the respondent for compensation for the injuries sustained. He faulted the respondent for neglecting to provide him with protective clothing and a safe system of work.

At the hearing the appellant stated that the iron plate was 4feet by 3feet wide and 1. 5 feet thick and it overwhelmed him and his colleagues. As a result it fell on his toe. He was given first aid at Kericho Nursing Home and thereafter was taken to New Nyanza Hospital in Kisumu. He tendered medical proof of the injuries he sustained. The respondent called a witness who while admitting that the appellant was involved in the accident and that he sustained the injury alleged attributed the accident to negligence on the part of the appellant.

After considering the evidence and submissions from the parties the trial magistrate found that the appellant had not proved his case on a balance of probabilities and dismissed it. Being aggrieved the appellant filed this appeal. The grounds for appeal are-

1. “The learned trial magistrate erred both in fact and law by holding that the appellant failed to prove:-

a. That the respondent failed to supply the appellant with protective clothing while on duty.

b. That the respondents failure was the cause of the injury, while in the contrary there is evidence on record pointing out the aspects of negligence of the respondent and its results thereof.

2. The learned magistrate erred in law and fact by completely disregarding the evidence of the witnesses on record on account as how the accident occurred and the facts apparent immediately before and after the accident.”

The appeal was canvassed by way of written submissions and this court has considered those submissions and the evidence before the trial court. The appellant based his claim on breach of statutory duty and negligence neither of which he proved on a balance of probabilities. On breach of statutory duty he alleged that the respondent did not provide him with an apron but on being questioned how the apron would have protected him in the event of such an accident he was candid that it could not. That he was not provided with metal boots was an afterthought as it was not pleaded. It is also clear from the evidence that the respondent had put in place sufficient measures to ensure the appellant's safety. It was his own evidence that he was not lifting the iron bar alone but with five other colleagues. He did not demonstrate that that size of a bar could only be lifted by a crane and indeed whether that was the first time he was required to load a bar of its size other than with a crane. On the issue of negligence he did not give sufficient evidence upon which this court can find the defendant negligent. He did not explain how the accident occurred with clarity instead being content with merely stating that the metal bar fell on his leg. How did it fall? How come it only fell on his side? These were crucial facts whose answers which he only could provide. By not providing the answers he failed to prove his case on a balance of probabilities. Accordingly there are no grounds upon which this court can interfere with the trial magistrate’s findings of fact and law. This appeal has no merit and is dismissed with costs to the respondent.

Signed, dated and delivered at Kisumu this 12thday of October 2017

E. N. MAINA

JUDGE

In the presence of:-

Mr. Omondi T for the Appellant

Mr. Ragot for the Respondent

Court Assistant – Serah Sidera