[2023] KEHC 25398 (KLR)

Broadband Access Limited & another v Kabiru & another (Suing as the Personal Representatives of the Estate of Samuel Macharia Kabiru- Deceased) (Civil Appeal 216 of 2020) [2023] KEHC 25398 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25398 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 216 of 2020

AN Ongeri, J

November 17, 2023

Between

Broadband Access Limited

1st Appellant

Access Kenya Group Limited

2nd Appellant

and

Charles Gitau Kabiru

1st Respondent

Tabitha Kendi Koome

2nd Respondent

Suing as the Personal Representatives of the Estate of Samuel Macharia Kabiru- Deceased

(Being an appeal from the judgment of Hon. E. A. Nyaloti (CM) in Milimani CMCC No. 6297 of 2012 delivered on 21/5/2020)

Judgment

1. The respondents in this appeal were the plaintiffs in Milimani CMCC No. 6297 of 2012 where they sued the appellant for damages under both the Fatal Accidents Act and the Law Reform Act.

2. The brief facts of the case are that the deceased, Samuel Macharia was working on behalf of the 1st and 2nd appellants in installing internet and telecommunications gadgets, radios and equipment on a telecommunication mast at Isinya area, at a mast which was erected by the 2nd respondent.

3. The trial court found that the deceased fell from the mast which was 30 metres high and found the defendants were liable in negligence and awarded damages amounting to 20,000,000.

4. The 1st and 2nd appellants have filed this appeal against the respondent on the following grounds:i.The learned trial magistrate erred in fact and in law in finding that the appellants were 50% liable for the death of the deceased and in awarding damages to the 1st respondent.ii.The learned trial magistrate erred in fact and in law in finding that the appellants were contracted by the 2nd respondent to install internet services on the 2nd respondent premises.iii.The learned trial magistrate erred in fact and in law in finding that the deceased climbed the mast in his capacity as an employee of the 1st appellant.iv.The learned trial magistrate erred in fact and in law in failing to find that the deceased had not been authorized by the appellants to work at the 2nd respondent premises.v.The learned trial magistrate erred in fact and in law in failing to find that the deceased was on frolic of his own at the 2nd respondent’s premises.vi.The learned trial magistrate erred in fact and in law in finding that there was a contract between the appellants and the 2nd respondent.vii.The learned trial magistrate erred in law and in fact in finding that the deceased was working on behalf of the appellants.viii.The learned trial magistrate erred in law and in fact in finding that the deceased suffered fatal injuries as a result of the contributory negligence of the appellants.ix.The learned trial magistrate erred in law and in fact in finding that it was the duty of the appellants to carry out due diligence and confirm that the structure where the deceased was to work was safe and secure.x.The learned trial magistrate erred in failing to consider the evidence produced by the appellants herein.

5. The parties filed written submissions in the appeal as follows; the appellant submitted that any claim by the estate of the deceased ought to have been lodged before the Director of WIBA. That it is trite law that parties cannot grant jurisdiction to a court by consent. That the 1st respondent cannot therefore argue that the appellant conferred jurisdiction on the trial by its defence and participating in the lower court proceedings. In support the appellants cited Manuchar Kenya Limited v Dennis Odhiambo Olwete [2020] eKLR where the court held:“The upshot of the decision by the Court of Appeal as confirmed by the Supreme Court is that all work injury claims arising after enactment of WIBA in 2007 were to be processed within the procedure set out in the Act and the original jurisdiction of the courts was thus ousted.”

6. The appellant submitted that the Supreme Court decision in Law Society of Kenya v Attorney General & another [2019] eKLR was delivered in 2019. This decision was binding on the magistrate’s court. The judgment delivered on 21/5/2020 was delivered in ignorance of the binding decision of the Supreme Court and was therefore per incuriam as the learned magistrate lacked jurisdiction to hear and determine CMCC Number 6297 of 2012.

7. On liability the appellant admitted that the deceased was its employee but had not been instructed to install any equipment on the 2nd respondent’s premises. The deceased was on a frolic of his own at the 2nd respondent’s premises when he fell and died. The 2nd respondent had not contracted the appellants to install any equipment on its mast.

8. There was no proof that a contract existed between the appellants and the 2nd respondent. That in a statement Lillian Njimu testified that while there had been some discussion about installing equipment in the 2nd respondent’s site the discussions never consummated into a contract. additionally, Mr. Macharia during cross examination testified that the deceased was doing work that he had not been instructed to do.

9. The deceased was supposed to get off at KBC Karen for assignment but he went to the 2nd respondent’s site to install equipment on a mast. The deceased was acting completely in his own capacity and did not follow the instructions of the employer and took a major detour from the instructions of the appellants which the trial court failed to consider in its judgement.

10. This being a first appeal the duty of the first appellate court is to re-evaluate the evidence adduced in the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that the trial court had an opportunity to see the witnesses. In Selle v Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanor of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

11. The issues for determination in this appeal were as follows;1. Whether the trial court had jurisdiction to hear the case.2. Whether the trial court was right in apportioning liability at 50:50 between the appellants and the 2nd respondent.3. Whether the deceased was authorized to work at the 2nd respondent’s premises.4. Whether the trial court failed to consider the appellant’s evidence.5. Whether the appeal should be allowed.6. Who pays the costs of the appeal?

12. On the issue as to whether the trial court had the jurisdiction to hear this matter, I find that there is no evidence that the Appellants raised the issue before the Trial court.

13. The Appellants submitted that 1st respondent cannot argue that the appellant conferred jurisdiction on the trial by participating in the lower court proceedings.

14. It is true that any claim by the estate of the deceased ought to have been lodged before the Director of WIBA and that all work injury claims arising after enactment of WIBA in 2007 are supposed to be processed within the procedure set out in the Act since the original jurisdiction of the courts was thus ousted.

15. However, in the current case the Trial court had jurisdiction since the deceased was not working on behalf of the Appellants at the time he sustained the fatal injuries.

16. There is evidence that the deceased was acting completely in his own capacity and did not follow the instructions of the employer and took a major detour from the instructions of the appellants.

17. The evidence adduced by the Appellants’ witnesses was that the deceased did not have instructions from the Appellants and that evidence was ignored by the Trial court.

18. On the issue as to whether the trial court was right in apportioning liability at 50:50%, I find that there is no evidence that the appellants had a contract with the 2nd respondent for installation of internet equipment.

19. Although it was not in dispute that the deceased was an employee of the appellants, there is no evidence that the appellants had been contracted by the 2nd respondent to install any equipment.

20. On the issue as to whether the deceased was authorized by the appellants to work at the 2nd respondent’s premises, I find that the answer is in the negative.

21. The deceased went in his personal car and released the driver of the appellant.

22. I therefore find that the deceased was on frolic of his own and the appellants are not liable for the fatal injuries the deceased sustained.

23. On the issue as to whether the trial court failed to consider the appellant’s evidence, I find that the answer is in the affirmative.

24. The trial court did not rely on the evidence of Raymond Macharia(DW 2) swho said that there was no contract to install equipment at the 2nd respondent’s premises.

25. The court did not consider the testimony of DW 1, David Kyengowho said he was instructed to take the deceased to KCB Karen but the deceased instructed DW 1 to take him to Nairobi West where he picked his personal car and released DW 1.

26. I find that the trial court determined this case against the weight of evidence on record.

27. In the circumstances, I find that the appeal herein has merit and the same is allowed.

28. I set aside the trial court’s finding on liability against the appellants and I replace it with an order that the 2nd respondent was 100% liable for the injuries the deceased sustained.

29. I find that it is not in dispute that the deceased fell from a mast which was 30 meters high while installing equipment at the 2nd respondent’s premises.

30. I find that the findings on assessment of damages have not been challenged and the same are upheld.

31. Judgment be and is hereby entered in favour of the 1st respondent against the 2nd respondent in the sum of kssh.20,000,000 together with costs of the suit and interest at court rates from the date of the trial court’s judgment until payment in full.

32. The 2nd respondent to pay the appellant’s costs of this appeal and of the original suit.Orders to issue accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent