[2019] KEHC 6478 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 103A OF 2013

EASTERN PRODUCE (K) LIMITED SITOI TEA ESTATE........APPELLANT

VERSUS

PHILISTER ODERO .....................................................................RESPONDENT

(Being an Appeal from the Judgment of the Senior Resident Magistrate Honourable A. Lorot in Kapsabet Civil Case No. 85 of 2011, dated 25th July, 2013)

JUDGMENT

In the lower court, Civil Suit No. 85 of 2011, the Respondent sued the Appellant seeking both general and special damages arising from injuries she allegedly sustained while working as a tea plucker for the Appellant at Sitoi Tea Estate of E.P.K, on 23rd August 2008. She allegedly slipped and fell in unmarked dug hole which had been covered by the canopy of tea bushes and injured her back and chest. She reported to her supervisor Mr. Adriano and was referred to the company’s dispensary. First Aid was administered and later on went to Nandi Hills District Hospital for proper treatment. Dr. Aluda (PW-1) examined her on 5th March 2011 and found that she had suffered blunt trauma to the chest.

PW2, Mr. Tom Barasa Juma, a clinical officer based in Nandi Hills at the time the cause of action arose, testified that he is charged with handling all legal issues that concerns the hospital. He confirmed that the respondent was treated at the facility and given analgesics and antibiotics. The treatment card was produced as Pexhbit 3.

PW3 was the respondent herein. She claimed that she was an employee of the appellant company at the time of the accident. She produced her payment slip for the month of August 2008, marked as PExhibit 4. She claimed that she slipped and fell into a hole at the appellant’s premises. She was treated at Nandi Hills District Hospital. She drafted a demand letter to the appellants, through her advocates (marked as Pexhibit 5) but there was no response from the appellant company. She instituted legal proceedings against the appellants vide a plaint dated 14th March 2011.

The defence, through DW1, Mr. Joseph Boen, the appellant’s payroll clerk, is that the respondent was not an employee at the appellant’s company.

DW2, Mr. Silas Aselo Oriedo, a registered nurse at the appellant’s premises denied that the respondent was attended to at their station on the day the respondent claims she was injured. He produced records of the patients allegedly attended to on the said day, marked D-exhibit 2.

The issues for determination are whether the Respondent was indeed an employee of the Appellant, whether the Respondent suffered injuries in the course of her employment and if indeed the above two issues were true; whether the injuries were attributable to the Appellant’s negligence of their duty of care owed to the plaintiff. These issues were impressively dealt with by the lower court but some of them are challenged by the appellant in this appeal which is premised on the following grounds:-

I. That the respondent’s case was not proved on a balance of probability as required by law.

II. That the learned magistrate exaggerated the appellant’s liability notwithstanding the evidence on record.

III. That the learned magistrate misconceived the evidence on record as well as all the issues for determination.

IV. That the learned magistrate based his decision on irrelevant considerations.

V. That the learned magistrate should have held the appellant’s case in defence was unchallenged.

VI. That the learned magistrate’s apportionment of liability between the appellant and the respondent was erroneous.

VII. That the learned magistrate erred on all points of fact and law in as far as both liability and award of damages is concerned.

This court is therefore faced with the following issues for determination:-

I. Whether the lower court erred in apportioning liability wholly on the appellants.

II. Whether the quantum of damages awarded was excessive.

The law is that, unless substantial issues of law and facts are raised, an appellate court ought not to disturb the findings and holding of the lower court. This court is guided by the holding in the case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that,

“…..where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.”

In establishing liability and the extent of the same, the court need satisfy itself that the plaintiff was indeed an employee of the defendant and that the tort occurred in the ordinary course of employment. This court is satisfied that these two crucial issues were well established in the lower court and do not wish revisit the same in this appeal.

An employer owes to the employee a paramount duty of care to ensure that the working environment is safe. And much as the foreseeability of an accident may be uncertain and both the employer and the employee ought to take reasonable measures and care to mitigate the likelihood of an accident at the workplace, the lower court was right after evaluation of the entire evidence in holding the appellant 100% liable. As to the quantum of damages, this court is inclined not to vary the lower court award unless such an award is exorbitantly high or unjustly low as not to reflect the true assessment of the injuries suffered. This court relies on the holding in the case of Butt v Khan 1982 – 1988 1KAR where the court pronounced itself as follows:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

This court upon its imposition on the case and with due regard to the above laid down principles hold that the general damages awarded and special damages of Kshs.100,000 and Kshs.1,500 respectively, were not excessively high neither were they paltry. I therefore uphold the finding of the lower court.

This appeal is for the given reasons dismissed with costs to the appellant.

S. M GITHINJI

JUDGE

DATED, SIGNEDand DELIVEREDatELDORETthis 20thday of May, 2019

In the presence of:

Mr. Kibyego for the appellant

Mr. Z.K Yego for the respondent

Sarah – Court assistant