[2018] KEHC 3759 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL CASE NO. 113 OF 2015

EASTERN PRODUCE (K) LTD – CHEMOMI TEA ESTATE.....APPELLANT

VERSUS

BONFAS SHOYA..............................................................................RESPONDENT

(Being an Appeal from the judgment and decree of Hon. E.A. Obina PM,

dated anddelivered on the 8th day of September 2015 in Kapsabet

Principal Magistrate’s Court Civil Case No.339 of 2010

JUDGMENT

1. The respondent (BONFAS SHOYA) had sued the appellant (EASTERN PRODUCE (K) LTD – CHEMOMI TEA ESTATE) seeking special and general damages following injuries he sustained on 6th September 2010 while working for the appellant, when he got pricked by a dried pruned tree stump. He attributed this to the appellant’s negligence. The appellant denied liability saying the respondent contributed to the accident

2. The trial court held that the respondent had proved his claim to the extent that the appellant was 80% negligent, while the respondent shouldered 20% liability. Judgment was thus entered in his favour in the sum Kshs 50,000 less 20% contribution plus special damages at Kshs 1500/-

3. PW3 (Boniface Ashioya) told the court that while was working at Chemomi Tea Estate as a tea plucker on 16th September 2016, as he was making his way to the weighing shed, a dried tree stump pricked his right leg. He testified that on that day, he had been assigned work by JOHANA MASUMBUCHI who was a Supervisor, so when got injured, he reported the same to the said Supervisor, who referred him to the company dispensary where he received first aid before seeking further medical attention at Nandi Hills District hospital.. He maintained that he had signed a contract as an employee of the appellant and upon cross-examination. He produced a record to show that he was present at work in that particular day. PW3 stated that he did not have any document to show that he was treated. He stated that he did not know of any resignation letter in his file. He blamed the company for the injury, lamenting that no protective apparel was issued to him.

4. PW1 (Simon Kiplagat Rono) a clinical officer at Nandi Hills District Hospital told the trial court that Boniface Shioya was attended to at their hospital on 16th September 2010 with a history of having been pricked on the right leg by a tea stump while picking tea. He said that the patient was put on antibiotics and treated by senior Dr. Mutai. On cross examination, he classified the injury suffered as a soft tissue injury amounting to harm. The treatment document was produced as exhibit.

5. PW2 (Dr. Samuel Aluda) confirmed to the trial court that he examined the respondent who had been injured in the course of work. He stated that the injury had healed at the time of examination, i.e. 3 moths from the time the injury had been sustained and confirmed that it was a soft tissue injury. He produced a medical report as exhibit.

6. DW1 (IRENE CHEPKORIR) a nurse working at Chemomi Estate said that there was no record of the respondent’s injury or treatment in DW1the Out-patient register-which would mean that he was not treated at the health facility . While conceding that the dispensary was not in the practice of giving treatment notes to patients, she however maintained that after capturing all the details in the register, a chit is issued to the patient to take to his supervisor who retains the same. On re-examination, DW1 was adamant that it is not possible to treat a patient and fail to make entries in the books.

7. LAMECH ARUSEI (DW2) who worked as a supervisor for the appellant confirmed that the respondent used to work for the appellant as a tea picker but insisted that the respondent stopped working in June and that his name was reflected in the Check-list for terminated employees which was produced as Ex3He stated that if the respondent was injured at work, then he ought to have reported to his supervisor Johana/Yohana.

8. The TM found that DW1 was not in employment during the period in question, having been employed in November 2012, and could therefore not know the systems which were in place prior to her employment. The trial magistrate also inferred an act of bad faith by the appellant, pointing out that despite the fact that there were two health facilities at the appellant’s estate, only records from one facility were presented.

9. The trial court also found that despite claims that the respondent stopped working in June 2008, what was presented with regard to terminated employees was dated Boniface told the court on final cross-examination that he did not have anything to show that he was at work on the said date. He did not have any evidence from the dispensary or work place. Further, that the appellant did not avail the respondent’s supervisor, instead presenting DW2 who was not his immediate supervisor, and there was no evidence that DW2 was on duty on the date in question. The evidence by DW2 was described as not very credible and not very strong since he did not even produce an accident register to show that no accident occurred on the alleged date. It was thus held that an employment contract existed between the parties, and the respondent was an employee of the appellant on the date stated

10. The trial magistrate held that the appellant owed the respondent a duty of care and should have provided the respondent with protective gear such as gum boots. However, considering the nature of the injuries and the circumstances, the respondent ought to have known that it was dangerous to work under such conditions, and he ought to have taken mitigating measures, instead he voluntarily exposed himself to those conditions. The trial court thus awarded the sum of of Ksh. 50,000 as general damages, and special damages of Kshs.1500/-. Having found that the respondent was 80% liable the amount owed to the respondent by the appellant was reduced to Ksh. 41,200/- which is now contested by the appellant based on the grounds outlined above.

11. The appellant being aggrieved by the decision of the court in the afore mentioned case, filed an appeal based on the following grounds;

· There was no legal basis for making a finding in favour of the respondent as he had not proved the appellant’s liability on a balance of probabilities.

· The trial magistrate erred in both law and fact in disregarding the documentary evidence produced by the appellant without any proper basis in law and fact and as a result thereof she reached a wrong decision on liability.

· The trial magistrate failed to exhaustively evaluate the evidence and therefore reaching wrong conclusions.

· The trial magistrate erred both by shifting the burden of proof to the appellant and awarded general damages that were so excessive in the circumstances.

12. The appeal was canvassed y way of written submissions where the appellants counsel argued that it was upon the respondent to prove that he was on duty on the date in question-so he should have presented some documentary evidence to support that. Counsel urged this court to be guided by the decision in NANDI TEA ESTATES LTD VS EUNICE JACKSON WERE ELD HCCA No 66 of 2004. It was his contention that the respondent ought to have presented evidence showing that he was paid on the material date. He faulted the trial magistrate for relying on the contract of employment to establish an employment relationship, because although on the face of it the contract was to lapse in May 2010, the Check-list produced by DW2 did not bear the respondent’s name, and infact another check-list showed that his services had been terminated. Counsel urged this court to find that the respondent’s failure to produce a payslip for the month of September that he was by then not in the appellant’s employment.

13. Counsel submitted that this, when taken into consideration alongside the fact that the respondent’s name did not appear in the treatment records then was adequate proof that the respondent was not on duty when he got injured. The trial court was also faulted for insisting that the respondent’s supervisor (Johana ought to have been called as a defence witness, stating that particular individual had retired and it was unreasonable to expect the appellant to get him to attend court as it’s witness.

14. The burden of proof in civil cases on the balance of probability was defined in the case of KANYUNGU NJOGU VS DANIEL KIMANI MAINGI [2000] eKLR that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.

15. The respondent’s counsel pointed out that the appellant’s witness produced records relating to KAPSAGIK dispensary (which the appellant did not attend) instead of the records for CHEMOMI dispensary (which the respondent had attended), saying this was clearly geared towards defeating justice, and the respondent’s evidence remained un-rebutted.

16. Counsel also pointed out that the much touted check-list for terminated employees did not bear the name or signature of its maker, and DW2 could not have vouched for its credibility- the person best suited to do that being JOHANA who was not called as a witness.

17. In civil cases, a plaintiff is required to prove his claim against the defendant on the balance of probabilities. This position was clearly stated in the case of KIRUGI & ANO. -VS- KABIYA & 3 OTHERS [1987] KLR 347 wherein the Court of Appeal stated that the burden was always

on the plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.

18. In TREADSETTERS TYRES LTD –VS- JOHN WEKESA WEPUKHULU [2010] eKLR where Ibrahim J. allowed an Appeal quoted Charles worth & Percy On Negligence, 9th edition at P. 387 on the question of proof, and burden thereof where it is stated:-

“In an action for negligence, as in every other action, the burden of proof falls upon the Plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferior and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

19. Moreover, according to Section 109 of the Evidence Act, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

20. The trial magistrate duly considered and analysed the evidence, taking into account the existence of the employment contract, the failure to call his immediate supervisor (pointing out (correctly) that the mere fact that he had retired was not a bar to his being called).Indeed the trial magistrate observed an apparent mischief by the respondent, in presenting medical records from a facility other than the one the appellant attended, an act which can only be termed as bad faith. There was no letter of termination or dismissal from employment, and all that the appellant presented was an unsigned list whose authorship could not be verified. How could the respondent produce payslips for that month, when it was his evince on cross-examination that he was not even paid for that month! The appellant’s own conduct tilted the balance of probability in the respondent’s favour as it suggested deliberate withholding of information it perceived would favour the respondent. I am unable find fault with the trial court’s analysis and determination on the issue of liability.

I am unable find fault with the trial court’s analysis and determination on liability.

21. In the case of BUTT VS KHAN(1977) 1KARwhere Law JA stated that;

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

I hold and find that taking into account the nature of injuries, the damages awarded would not in my view be described as inordinately high or excessive, and I decline to interfere with the said award. Consequently the appeal lacks merit and is dismissed with costs to the respondent

Deliveredanddatedthis 3rd dayof October 2018atEldoret

H. A. OMONDI

JUDGE