[2022] KEHC 11371 (KLR)

Devki Steel Mills Limited v Geoffrey (Civil Appeal 76 of 2018) [2022] KEHC 11371 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11371 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 76 of 2018

MW Muigai, J

May 4, 2022

Between

Devki Steel Mills Limited

Appellant

and

Mauti Ondara Geoffrey

Respondent

(Being an appeal against the decree and judgment delivered on 30th day of May, 2018 by Hon. L. Kassan (SPM) IN Mavoko PMCC No. 1138 of 2015)

Judgment

Background: 1. The Plaintiff’s Plaint dated November 30, 2015and filed in Court on December 16, 2015. It is the Plaintiff/Respondent’s case that on or about December 3, 2012he was lawfully working in the course of his employment within the defendants premises at Athi River, when the Defendant by its directors or supervisors, negligently and in breach of its statutory duty assigned the plaintiff duties of feeding the jiko with scarps which were to be smelted when an explosive device exploded extremely loud causing partial deafness and as a result the plaintiff sustained serious body injuries.

2. The particulars of the breach of contractual obligation by the defendant’s agent or supervisor were listed as follows:-(a)Assigning the plaintiff duties without due care and attention(b)Exposing the plaintiff to risk of damage or injury which they knew or ought to have known.(c)Failing to provide a safe place of work.(d)Failing to provide the necessary working implements.(e)Failing provide any protective devices

3. Particulars of breach of contractual obligations by the defendant pursuant to statute were listed as follows:(a)Failing to fully instruct the plaintiff as to the dangers involved in the said work and precautions to be observed.(b)Failing to provide any and/or adequate supervisions(c)Failing to provide any protective devices.

4. As a result of the aforesaid accident, the Plaintiff sustained severe bodily injuries. Particulars of the injuries being deafness on h the right ear.

5. The Plaintiff sought for special damages amounting to Kshs.3,000/-.

Defendants Statement of Defence 6. The Defendant denies the allegations and puts the Plaintiff to strict proof thereof.

7. That the defendant states that the Plaintiff was in course of his lawful duties on the instructions of the defendants, its agents and/or servants when the Plaintiff was negligent which resulted in the Plaintiff‘s injury.

8. That if the Plaintiff was injured as stated in the Plaint which is denied, then the Defendant was not in any way to blame and the same was solely caused by the Plaintiff who was the author of his own misfortune by failing to follow the instruction of the defendant with respect to the involved work, failing to keep proper concentration which attending to his duties and failing to wear protective gears at the work place all the time at the place of work.

Replying Affidavit by the Plaintiff 9. That the suit is not time barred.

10. That the cause of action arose on or about 3rd December, 2012 which he was executing his official duties at his place of work at the Defendant’s premises.

11. That upon treatment, the Defendant/and the Plaintiff started negotiations for compensation and was informed to wait for the payment and the defendant was liaising with the insurance company.

12. That the Plaintiff had waited for the negotiations for two years and some few month’s until August, 2015 when he verbally terminated form the employment.

13. That upon request for compensation he was told that the same will be communicated and it was then he instructed his lawyers to follow up on the same.

Preliminary Objection dated January 24, 2017 14. The Defendant filed a preliminary objection and sought the following prayers:(a)That the plaintiff is time barred to file this suit on account of Section 90 of the Employment Act cap 226 Laws of Kenya.(b)The continued pendency of the suit is an abuse of the process of this Court.(c)The entire claim herewith dated 30/11/2015 is an abuse of the process of this Court ought to be dismissed with costs.

15. A ruling of the preliminary objection dismissing the same was delivered on June 30, 2017.

Evidence Plaintiff’s Evidence 16. The Plaintiff called 2 witnesses while the defendant called one witness.

17. PW.1 Geoffrey Mauti (the Plaintiff) in examination in chief stated that he lives in Athi River and used to work for the Respondent. He adopted his statement and stated that he was injured on 3/12/2012. He was treated by the company doctor and later went to Athi River Health Centre and then to Machakos. He reported the accident to HR called Stephen Kariuki. That he got injured with others on the same day and his name filled in accident register but the name was later omitted from the said register. After the accident he had to leave work.

18. On cross-examination he reiterated that he got injured on 3/12/2012 and not 3/11/2012; that he was taken to the company hospital and doctor wrote a referral to the hospital which he took to Machakos Level 5 where he was treated.

19. PW.2 Dr. Ndeti Titus stated that he examined the complainant and prepared medical report. The Dr.’s opinion was that the plaintiff suffered maim due to excessive noise and he will require right ear hearing aid.

20. On cross – examination he stated that he is not an ENT specialist but he relied on the medical summary to arrive at his decision.

Defence Evidence: 21. DW.1 Obwoge stated that he works for the Respondent as a Supervisor; that on 3/12/2012 the Plaintiff was at work. He asked the Court to adopt his statement dated 9/03/2016. He further stated that the Plaintiff was not injured on that day. According to the biometric machine that shows lock in and lock out the plaintiff locked in at 7. 00 a.m. and locked out at 7. 00 p.m. he produced a register in support. According to the register of that day it is only a Mr. John Munyao who got injured.

22. On cross – examination he reiterated that the register of 3/12/2012 shows that only one person was injured. The injury register is made by a doctor who makes the injury book and it is competed when an injured patient is brought and if the plaintiff was injured on that day he could have known before the name could be entered into the report.

23. The Trial Court in its judgment dated 30th May, 2018 entered judgment for the plaintiff against the defendants as follows:- General damages awarded Kshs.380,000/-

Special damagesMedical report - Kshs.3,000/-Court attendance - Kshs.8,000/-

Respondent liable - 100%

Costs for Plaintiff

The general damages shall attract interest for the date this judgement is read. Special damages to attract interest for the date this suit was filed.

Appeal 24. Aggrieved by the Trial Court judgment, the Appellant herein filed his Memorandum of Appeal dated 29th day of June, 2018 on the same date based on the following grounds:-(a)That the Trial Magistrate erred in law and fact to consider the submissions of the respondent.(b)That the Trial Magistrate erred in law and fact to consider that the evidence of the Respondent Dr. Titus Ndeti.(c)That the Trial Magistrate erred in law and fact to consider and admit secondary evidence of the Respondent.(d)That the Trial Magistrate erred in law and fact by failing to consider the whole of the Appellant’s submissions on and authorities on quantum.(e)That the Trial Magistrate erred in law and fact by failing to consider and admit suit that was statutory time barred.(f)That the Trial Magistrate erred in law and fact in neglecting to consider the Appellant’s Doctor’s second medical report and opinion to assess the injuries sustained.(g)That the Trial Magistrate erred in law and fact by dismissing the preliminary objection of the Appellant.

25. The Appellant sought the following orders:(a)That the Appeal be allowed and judgment inMavoko Pmcc No. 1138 of 2015: Mauti Ondara Geoffry –vs- Devki Mills Limited be set aside.(b)For costs of the appeal and of the trial suit.

Submissions 26. On the issue of whether the suit was time barred the Appellants submitted that the suit was statute barred because it was filed 15 days after the statutory time limit as indicated on their record of appeal where the plaint was filed on 16th December, 2015; that the accident happened on or about 3rd December, 2012 therefore it means that the plaint was filed after the statutory time limit hence it is time barred.

27. Section 90 of the Employment Act states as follows:-“90. LimitationsNotwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”

28. The Respondent stated that there were ongoing negotiations which necessitated the delay in filing the suit but did not produce any evidence to prove the same the respondent only produced averments without proof of documents.

29. Section 109 of the Evidence Act provides that the burden of proof as to any particular facts lies on the person who wishes the court to believe in its existence.

30. PW. 2 testified that he is a General Practioner. He saw the Respondent 3 years after the injury and that he only relied on the medical summary prepared by Dr. Okore and further stated that the case summary from Devki was not sufficient to make conclusive opinion but did not produce the documents hence makes the report irrelevant and inadmissible

31. Section 67 of the Evidence Act states that documents must be proved by primary evidence except in situation mentioned in Section 68 in this case the medical summary was only marked as MFI3. The general rule is that a copy of a document is generally inadmissible unless rules allow it. Section 4(1) of the Evidence Act states as follows:-“Section 4(1)Whenever it is provided by law that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”

32. The Court of Appeal in Kenneth Nyaga Mwige –vs- Austin Kiguta & 2 others[2015] eKLR held as follows:-“The marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation or it authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the documents produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would be hearsay, untested and unauthenticated account.Guided by the decisions cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.”

33. The Appellant further submitted that the Court erred on relying on PW.2 Medical Report as PW.2 relied on MFI3 that was not produced in Court neither did it bear the Appellant’s stamp as is the norm.

34. The Appellant concluded by praying that the Appeal be allowed and judgment of the lower court be set aside and costs of the appeal and trial of suit.

Respondents Submissions 35. The Respondent submitted that the Appellant raised a preliminary objection dated January 24, 2017, before the learned Trial Magistrate it was dismissed vide Ruling dated January 24, 2017which ruling the Appellant never appeared against; The Suit proceeded thereafter for full trial hearing where the Appellant cross –examined the Respondents witness and further called his own witness DW.1. Then the Appellant cannot be heard to argue today that he is dissatisfied with the Trial Court Ruling dated 29th June, 2017 since if he was dissatisfied the Appellant should have appealed against the same right from the date it was delivered and within the stipulated timeframe or thereafter but with the appropriate leave of the Court as per the law.

36. In the case of David Bett & Another –vs- Joseph Njuguna Nganga & Another[2019] eKLR Civil Appeal No.139 of 2018 the Court held that:-“the general trend, following the enactment of sections 1A, 1B 3 and 3B of the Civil procedure Act and Article 159(2)(d) of the constitution is that courts today place heavy premium on substantive justice as opposed to undue regard to procedural technicalities. A look at recent judicial pronouncements from all the three levels of Court structure leaves no doubt that the courts today abhor technicalities in the dispensation of justice.”

37. On the issue of Dr. Ndeti PW.2 testimony and medical report, it’s not in doubt that indeed the Respondent was examined by Dr. Ndeti on 1st February, 2016. Further he prepared a medical report dated 1st February, 2016 and same was produced before the Trial Court who confirmed that he is a general medical Practioner and on 1st February, 2016 he examined the respondent physically on his hearing ability; that while relying on the client history, the physical findings during examination and clinic summary form Devki Steel Mills, he prepared a medical report dated 1st February, 2016; that he was cross – examined by the appellant and he proceeded to produce the said medical report as respondents’ evidence before Court.

38. In the case of Timsales limited –vs- Harun Thuo Ndungu [2010] eKLR Civil Appeal 102 of 2005 the Court held that;“The Doctor's report of the date of injury corroborates the evidence of the Respondent. The injuries were suffered on 30th June 2002. Dr. W. K. Kiamba verified the injuries suffered by the Respondent including the nature of the treatment the Respondent received. He was a professional and since his report was admitted by consent, no evidence was led by the Appellant to discredit his Report. The Appellant had opportunity to either summon the Doctor and put questions to him on his Report or seek and obtain an independent examination of the Respondent and tender its own report to the Trial Court.”

39. It was not in doubt that the Respondent was involved in an accident and sustained injuries well in court of his employment. In support of his case e produced the following documents;-(a)Dosh form from the directorate of occupational safety and health services(b)Case summary from Devki Steel Mills limited recorded on the company letter head and signed on December 10, 2021(c)Medical report by Dr. Cyprianus Okere dated September 11, 2015(d)Medical report by Dr. Ndeti dated February 1, 2016.

40. It is further submitted that there is no record/prove of the Appellants allegation of a second medical report by the Appellants doctor hence this allegation is malicious with ill intentions to mislead this Court.

41. In the upshot the Respondent prayed Court to dismiss the Appellant’s appeal as the same is not sustainable and uphold the learned Trial Magistrate’s decision as the same remains sacrosanct and takes it away.

Determination 42. The Court has considered the pleadings and submissions by parties in the matter.The issues that emerge for determination are condensed as follows;1. What was is the role of an Appellate Court on appeal?2. Was the preliminary objection legally dismissed and admitted the suit that was statute barred?3. Whether the Trial Court erred to consider the evidence of Dr Titus Ndeti and ignored the Appellant’s 2nd Report?4. Whether the Trial Court erred in relying on secondary evidence of the Respondent/Plaintiff?5. Whether the Trial Court erred failed to consider submissions by both Appellant & Respondent.

1. What was is the role of an Appellate Court on appeal? 43. The jurisdiction of the matter arises from;(a)Article 165 of the Constitution of Kenya 2010 provides in part the High Court jurisdiction;(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;….(e)any other jurisdiction, original or appellate, conferred on it by legislation….………..(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

44. Although the subject matter relates to contract of employment between the Respondent and Appellant, the cause of action is negligence within work circumstances and therefore squarely falls under Article 165 CoK 2010 as an appeal from the Trial Court.

45. This being a first appellate court, the Court’s role is well captured in the case of Selle vs. Associated Motor Boat Co[1986] EA 123 as follows: -“The Appellate Court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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.”

46. In Gitobu Imanyara & 2 others vs AG(2016) eKLR quoted in Jackson Kaio Kivuva vs Penina Wanjiru Muchene ( 2019) eKLR to buttress the point; 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 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 either seen nor heard the witness and should make due allowance in that respect.

47. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:-“Denning J, in Miller vs. Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

2. Was the preliminary objection legally dismissed and the Trial court admitted the suit that was statute barred? 48. The essence of a preliminary objection was stated by Law, JA and Sir Charles Newbold P. In Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors(1969) EA 696. At page 700, Law, JA stated that:“….. a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

49. The Appellant raised Preliminary Objection dated 24/1/2017 and filed on 25/1/2017 on the following grounds;a)The plaintiff is time barred to file suit on account of Section 90 of the Employment Actb)The continued pendance of the suit is an abuse of the process of the Courtc)The entire claim herewith dated 30/11/2015 is an abuse of the Court process.

50. The Plaintiff/Respondent filed Replying Affidavit of 13/2/2017 and deposed that the cause of action commenced on 3/12/2012 while in employment of the Defendant/Appellant’s premises when he sustained the injury partial deafness to the right ear.

56. The Defendant/Appellant/Employer started negotiations and asked him to wait as the Employer was liaising with the Insurance Company.

57. After 2 years, he was verbally terminated from employment.

58. The Trial Court heard and determined the Preliminary Objection vide Ruling delivered on 29/6/2017 and dismissed the P.O.

59. The Trial Court relied on the following decisions as submitted by parties;

60. The Defendant/Appellant relied on the case of Phillip Gitonga Mbiriti vs Equity Bank Ltd Nairobi ELRC Cause 867 of 2014 where Mbaru LJ held;“The Constitution does not oust the provisions of Section 90 of Employment Act [that prescribes that the civil action/proceedings arising out of a contract of service shall commence within 3 years after the act, neglect of default complained] with regard to operation of time and the Court’s reading of Article 159 of the Constitution is that where there is a legal procedure to be applied, then the Court is so guided. There is no room to disregard on a matter regulated by law.”

61. The Plaintiff /Respondent submitted as follows on when time under Section 90 Evidence Act begins to run;In Kenya Scientific Research International Technical & Allied Workers Union vs Ronald Schumera (2012) Wasilwa LJ held that limitation period in employment and labor matters does not begin to run until conciliation process is exhausted.In Francis Muthini Mue vs Rakesh Anand t/a Raunaq RestaurantNairobi cause 2331 of 2012; L. Ndolo LJ held that time did not begin to run against the Claimant until the deadlock reached by the Respondents failure to respond to the instructions issued by the District Labor Officer.In Kenya Plantation & Agricultural Workers Union vs Mununga Leaf Base [2013] eKLR Abuodha J held that the cause of action accrued when it became clear that the Respondent would not honor the Conciliator’s recommendation.

63. Guided by the above cited case-law, it is clear there is legal process/procedure/timelines within which the suit or claim arising from employment contract ought to be filed within 3 years after cause of action arose, where parties are engaged in negotiations, conciliation or any of the prescribed forms of alternative dispute resolution processes by Article 159 (2) ( c) CoK 2010 as follows;(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles(c)Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

64. The limitation period shall be from when the negotiations failed or there was a deadlock or no response.In the instant case, the Plaintiff /Respondent was injured on 3rd December 2012 and negotiations commenced as deposed by the Plaintiff’s Replying Affidavit and he was told by the Employer to wait as they consulted the Insurance Company. The Defendant/Appellant failed to respond and instead sacked the Plaintiff from employment. Thereafter he instructed Counsel on record to commence the suit.In the circumstances, the Trial Court found and rightly so that the Limitation period prescribed by Section 90 of Employment Act was vitiated by ongoing negotiations by the Plaintiff and Defendant and time ran excluding the period the Plaintiff was put on hold to await consultations between the Defendant and the Insurance Company.

65. The Plaintiff’s right to pursue legal redress within the legal timelines was curtailed by the Appellant’s promise that the claim was under consideration. The justice of the matter demands the Plaintiff’s claim be ventilated on its merits and not irregularly ousted by Defendant’s misrepresentation. For the above reasons, I uphold the Trial Court’s Ruling dismissing the Preliminary Objection.

Liability1. Whether the Trial Court erred to consider the evidence of Dr Titus Ndeti and ignored the Appellant’s 2nd Report?2. Whether the Trial Court erred in relying on secondary evidence of the Respondent/Plaintiff?3. Whether the Trial Court erred failed to consider submissions by both Appellant & Respondent.

66. The Plaintiff/Respondent’s claim as outlined in the Plaint, against the Defendant Appellant is that he was employed as Furnace Changer boiling metal to be smelted. On 3/12/2012 in the course of carrying out his usual duty an explosive device exploded loudly causing partial deafness and as a result the Plaintiff sustained serious body injuries. The Plaintiff outlined breach of contractual obligations by the Defendant, agents or supervisors pursuant to statute specifically providing safe working environment and providing protective devices.

67. The Defendant/Appellant vide the Defense deposed that the Plaintiff who was the author of his own misfortune by failing to follow the instructions of the defendant with respect to the involved work, failing to keep proper concentration which attending to his duties and failing to wear protective gears at the work place all the time at the place of work.

68. The Defendant Appellant relied on evidence of DW1 who worked for the Defendant in the Furnace Department. He confirmed that the Plaintiff was an employee of the Defendant and he was on duty on 3/12/2012 as shown by Defense Exhibit 1 but he was not injured as the Register shows that one John Munyao was the only one injured. He refuted that the Medical Summary marked as MF1-3 it was not genuine as it was not the original document and had no Defendant’s stamp.

69. The Appellant took issue with reliance on MFI-3 the Medical Summary as it was not produced as an Exhibit and hence by virtue of the case of Kenneth Nyaga Mwige –vs- Austin Kiguta & 2 Otherssupra where the Court observed;“Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation or its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the documents produced as an exhibit and be part of the court record.”

70. The said case summary could not be considered as evidence by Trial Court. The Trial Court stated as follows in judgment of the medical summary;“Plaintiff Exhibit 3 is a document that the Plaintiff said came from the Respondent. It is a copy showing that the Plaintiff was injured as alleged. This document was produced as an Exhibit. There was no objection on the terms of the Defense. The Plaintiff was not charged with forgery of the said document which bears the Respondent Letterhead and has a signature. I could tell that this Document proves that the Plaintiff was injured and overrides injury record produced by the Defense which was not produced by the Maker.”

71. PW1’s testimony The Plaintiff produced his Witness Statement and List of documents which were produced as Plaintiff Exhibit 1-6. Others were produced as MFI 2, 3, & MFI 4- Case Summary was MFI -3.

72. The Trial Court record refers to 6 documents in the List of Documents produced as Exhibits and no objection was raised by the Defense as reflected in the judgment. However, there is also MFI – 3 Case Summary which was not produced by the Author.Let us assume that the Case Summary on the Defendant’s letter-head and signed and contested that it lacked the Defendant Company’s stamp was not original and produced as Exhibit and therefore could not to be relied upon as legally it was not produced as Exhibit and it is hereby expunged , the evidence of PW2 a doctor who examined the Plaintiff and filled the Report and produced it in Court as Exhibit 7, confirmed the injuries the Plaintiff sustained as partial deafness of the right ear and that is sufficient evidence. The effect and probative value of Expert opinion and /or doctor’s/medical evidence was considered in various decisions as follows;In the case of Sentongo and Another vs. Uganda Railways Corp. Kampala HCCS No. 263 of 1987 in which the Court held, citing Sarkar on Evidence 12th ED pp 506. R. that:“Medical evidence based on the evidence of other witnesses or prescriptions without observing the facts is not of much value compared with the evidence of a Doctor who personally attended the patient as this is hearsay. Medical reports have to be proved by the person giving them. The Evidence of an expert is to be received with caution because they often come with such a bias in their minds to support the party who calls them that their judgement becomes warped and they become incapable of expressing correct opinion.”Litigation Skills for South African Lawyers by Chris Marnewick SC pg 237 states;“An expert is a person who by virtue of his or her qualifications, experience or research or combination of all of them is able to give relevant evidence in the nature of information and opinions not generally available to the public....Judges draw inferences from facts that are proved in the case before them. Expert witnesses are used to explain subject's outside the Court's normal experience and to express opinions on inferences to be drawn from those facts.”Republic Vs. Lanfear1968 1 ALL ER 683 where DIPLOCK, L. J. gave the correct English position in regard to doctors’ evidence thus:“… Our view is that the evidence of a doctor, whether he be a police surgeon or anyone else, should be accepted, unless the doctor himself shows that it ought not to be, as the evidence of a professional man giving independent expert evidence with the sole desire of assisting the court.”

73. The Plaintiff was examined by Dr. Titus Ndeti Nzina, General Practitioner following history of injuries that the Plaintiff was involved in an industrial accident on 3rd December 2012 while working in Devki Steel Mills Ltd when a heavy explosion occurred. The Plaintiff sustained deafness in the right ear and was given 1st Aid at the Company’s Clinic and was referred to ENT clinic for further management. The Plaintiff’s present complaints included poor hearing in the right ear. Findings on examination, the doctor found partial deafness in the right ear. There was no legal requirement that the Plaintiff was to be examined only by an ENT. The qualifications and experience of Dr Titus Ndeti Nzina were not interrogated and found wanting by the Defendant’s Counsel. The findings from examination of the Plaintiff were not challenged in cross examination or by another medical report.

74. As the Appellate Court, the Court upholds findings by the Trial Court based on viva voce evidence and documents produced. The doctor, PW2 gave direct evidence of the interview and examination conducted on the Plaintiff and made his findings contained in the medical report Exhibit 7. The doctor was subjected to cross examination and the findings were not successfully challenged save for the fact that he was not ENT Specialist but General Practitioner. I uphold the findings of PW2.

75. The Appellant alluded to the fact that the medical report of their doctor was not considered by the Trial Court. The said medical report was not referred to by DW1 in his evidence nor did the Defendant apply to Court to be allowed to call the doctor or agree by Consent with Counsel for the Plaintiff to produce the said medical report as evidence in the absence of the maker or witness who would be subjected to cross-examination. In the absence of any of the above legal steps, the Trial Court was right in ignoring the said report if at all it was referred to during trial.

76. This Court has considered that the Plaintiff deposed that he was employed by the Defendant and worked as Furnace Changer and on 3/12/2012 he was on duty at the Defendant’s establishment. The Defendant through DW1 an employee of the Defendant confirmed the same and produced copy of the record showing the Plaintiff reported to duty on the day in question.

77. The Plaintiff stated that on 3/12/2012 an explosion occurred that caused him Hearing challenges. He reported to the Human Resource Personnel specifically, Mr. Stephen Kariuki even though Evans (DW.1) was his Supervisor. The Defendant did not controvert that there was HR Mr. Stephen Kariuki and that he received the report. He was attended to by the Defendant’s doctor, Mr. Francis Ndetto, again this fact was not controverted by any evidence by the Defendant.

78. On the other hand, the Defendant through DW1 presented evidence that although the Plaintiff was on duty on 3/12/2012, he was not injured as the Injury Register had only 1 person John Munyao. Just as the Defense refuted the Case Summary by the Defendant’s Company doctor to be relied on as it was not an original, was not stamped and produced by the maker, the same rule applies, the copy of injury register was not produced by the maker, it was not the original register nor signed and stamped and could not also be relied on. In summary, there was no tangible and cogent evidence to controvert the Plaintiff’s claim that he was injured while at work at the Defendant’s premises.

79. The Defendant did not as employer of the Plaintiff tender evidence to show that the Plaintiff was working in a safe environment and the Plaintiff was provided with protective and/or preventive gear or devices in this case ear muffs or ear plugs.

80. The Defendant did not adduce evidence of any act or omission by the Plaintiff that he failed to follow the instruction of the defendant with respect to the involved work, or failed to keep proper concentration while attending to his duties and he failed to wear protective gears if offered by the Defendant at the time at the work place all the time at the place of work.

81. Therefore, this Court finds from the evidence on record and submissions by parties’ the Case Summary was produced as Exhibit part of Exhibit 1-6 in the List of Documents attached to PW’s Statement and there was no objection raised by the Defense during the proceedings.

82. However, if it was only marked for identification as alleged it was not an exhibit to be relied on, but the evidence of PW1 and PW2 is sufficient to satisfy the standard of proof required on a balance of probability, that the Plaintiff was injured on 3/12/2012 by an explosion while working for the Defendant and suffered partial deafness.

83. On liability, I uphold 100% liability against the Defendant for the Plaintiff.

84. The Court has considered both written submissions made by parties’ during trial and on appeal as confirmed by the record.

85. On quantum, although not contested or raised on appeal, the Trial Court considered the following cases submitted by the Plaintiff through Counsel;Everest Odhiambo vs Gilgil Tele Communications Industries Ltd (2007) similar injuries was awarded Ksh 800,000/-Ann Chebet Cheruiyot vs Samuel Kipkurui Bore [2014] eKLR Civil Suit 2004, the Court awarded 500,000/-The Trial Court awarded Ksh 380,000/- general damages.

Disposition1. The Appeal is dismissed with Costs and Trial Court judgment of 30/5/2018 is upheld.

DELIVERED SIGNED & DATED IN OPEN COURT ON 4TH MAY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE