[2017] KEHC 1384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 90 OF 2013

EUNICE ADOYO ONYANGO................................................ PLAINTIFF

-V E R S U S –

EAST AFRICAN GROWERS LIMITED ............................... DEFENDANT

JUDGEMENT

1) Eunice Adoyo Onyango the plaintiff herein, was employed by East African Growers Limited, the defendant herein as a packer/general worker in the carton processing section of the defendant’s JKIA complex. On or about the 6th of May 2010,while in the course of her employment at the re-gluing section to reprocess defective carton, it is alleged that, the plaintiff was electrocuted while inserting a plug into a wall socket. It should be noted that the glue needed for reprocessing was heated on a hot plate in a sufuria plugged to a power point socket on the wall.

2) The plaintiff thereafter by the plaint dated 18th March 2013, filed this compensatory suit and sought for both special and general damages from the defendant herein. The defendant filed its defence dated 15th April 2013 denying the plaintiff’s claim.

3) When the suit came up for hearing, the plaintiff summoned two witnesses to testify in support of her case. The defence summoned two witnesses to testify in support of its defence.

4) Eunice Adoyo Onyango, (PW1) told this court that she was employed by East African Growers Limiteds at Jomo Kenyatta International Airport as a general worker. On 6/5/10 she was at work sealing damaged paper boxes and in the process of inserting the hot plate plug into the wall electricity socket. She said there as fire emanating from a live wire. She was pushed onto the floor unconscious and woke up to find herself at Nairobi West Hospital. At the time, she was 5 months pregnant. She was admitted for injuries caused by the electric shock. PW1 said she suffered pain in the right side of the body, persistent headaches, lost the hearing ability of her right ear, and was unable to lift her leg and arm. She also stated that that she never used protective gloves all the time at work.

5) PW1 said in cross examination that she worked for the defendant company since 2006 and was moved to the hot plate and given work in January 2010 where one Mr. Abednego was her supervisor. She was seen by Dr. Qureshi and at that time she was 24 weeks pregnant. She had initially been involved in a road accident three months before the accident at the defendant company where her left foot was injured. The switch where she worked was not in order and she had informed Mr. Abednego, about it and it had never been repaired despite reporting the same.

6) PW1 was re-examined by Mr. Okeyo and she stated that on the day of electrocution, she was alone, she shouted when she was electrocuted. Her supervisor found her lying on the floor.

It is the evidence of PW1 that the wire near the socket was not insulated and it was exposed. This was reported to the supervisor to inform the manager to enable it to be rectified.

7) Dr. Moses Kinuthia (PW2),in his medical report stated that the plaintiff sustained electrocution injuries with light hemiparesis in pregnancy. It had been over one year since the accident occurred and that there has not been any improvement. She required prolonged occupational and physiotherapy at an estimated cost of kshs.200,000/=.Total permanent incapacity due to the permanent hemiparesis, forticolis and deafness is assessed at about 80%

8) PW2 stated that in reaching his opinion he combined physical examination of PW1 and the discharge summary from Nairobi West Hospital where the injuries sustained by the plaintiff were classified as grievous harm.

9) PW2 noted the medical report of Dr. Qureshi was somehow contradictory to his own. It is PW2’s view that for the nerve conduction tests to be reliable should be done soon after the accident. The test was done two years after the accident. Burns may not show on the skin on every electrocution.

10) PW2 in cross examination stated that he had seen Dr. Qureshi’s medical report. The said doctor corroborates his findings that the plaintiff suffered electric shock.

11) Dr. Qureshi based his reports on Prof. Kioi’s report dated 28/4/12. Who concluded that the patient motor capacity on the right side is much lower than on her left side.

PW2 further stated that one year down the line after the alleged accident, the patient had not recovered in any significant way hence his conclusion that the injury was permanent.

12. The defence called two witnesses to testify . The first was Julius Mwangi. DW1 stated that he is employed by the defendant herein as an electrical technician. He is aware of the plaintiff case before this court. He was not present when the accident occurred on 6/5/10. He later checked the hot plate and socket on which the plaintiff was working on when the accident occurred, he found that they were in perfect working condition.

14. DW1 stated cross examination stated that he maintained electrical appliances and wires at the defendant company. The socket where the plaintiff worked was fixed on the wall to the hot plate. It also had a circuit breaker. The circuit breaker works when there is a shot. He checks the appliances every morning and keeps a record although he did not bring the record to court. On re-examination by Mr. Shah, he stated that he checked the switch and the wires after the accident and there was nothing wrong, he doesn’t know where the electricity which hit the plaintiff came from.

15. The second defence witness to take the witness stand was Abednego Mutinda(DW2). DW2 who stated that the was employed by the defendant herein as a supervisor of workers. On 6/5/10 while at work he heard screams and went to check and he found that the plaintiff was screaming. He found her leaning on the wall but standing, when asked PW1 said that she had been electrocuted.

16) In cross examination DW2 stated that when he met the plaintiff she was in a state of shock. He did not see any live wire and the plaintiff had not reported the existence of any live wire.

17) In re-examination DW2 stated that the company had gloves and it was upon a worker to use those protective equipments.

18) At the close of evidence learned counsels were invited to written submissions.

19) The crux of this case is to determine whether or not the plaintiff was injured while at the defendant’s work place, and if so who is liable and what is the quantum payable. The plaintiff submits that the accident occurred on 6/5/2010 at the defendant company’s premises. What is in dispute is whether the injuries sustained by the plaintiff were as a result of a live wire or exposed socket. The evidence of the injuries as per Dr. Kinuthia’s medical report states that the plaintiff sustained electrocution injuries with right hemi-paresis in pregnancy. The plaintiff stated before court that she was electrocuted while at work. Professor Kioy’s (Neurologist) medical report dated 28/4/12 confirms that the plaintiff suffered injuries related to an electrocution accident.

20) Another issue in contention is whether the electrocution was caused by the presence of a live wire near the plug supplying electricity to the hot plate used by the plaintiff to boil glue while at work. PW1 stated that there was a live wire near the socket. DW2, the general electrician at the Defendant company stated that there was no live wire because he was the one in charge of maintenance at the company. He said he checked the hot plate and the socket alleged to have caused the accident, after the incident and found them to be working well. In as far as the plaintiff was competent to use the hot plate, and the work related to the boiling of glue in an open sufuria and thereafter using it to seal the boxes the plaintiff stated that she had worked on it from January 2010 until the date of the accident. Whether she was trained on how to use it is unknown.

21) The plaintiff was involved in a traffic accident 3months before her electrocution accident. The plaintiff submits that the injuries sustained during the motor accident did not in any way aggravate the injuries of the electrocution. The motor accident caused her minor injuries to her left leg while the electrocution accident affected her right side of the body (the right ear, right arm, and right leg).

22) The defendant on the other hand submits that there is no doubt whether the plaintiff got injured as a result of electric live wire. The defendant further submitted that the plaintiff should not have risked to work in a place where there is live wire. The medical report of Dr. Kinuthia states that the plaintiff suffered electrocution. The medial report of Dr. Qureshi tries to rebut this position but at some point agrees with Dr. Kinuthia’s analysis that the plaintiffs injuries are consistent with an electrocution. The defendant contends that under such circumstances’ of inconsistencies on what or who caused the accident, the defendant’s liability is lowered and is further away from shouldering full responsibility. The defendant submits that the plaintiff took upon herself the risk to work near a live wire.

23) In light of the foregoing I am convinced that the plaintiff was injured while working at the defendants company’s premises. The fact that the plaintiff was working without gloves and continued to work well knowing that there was a live wire near the socket, as stated in her testimony in court, she somehow contributed to the accident. I am inclined to apportion liability in the ratio of 60% : 40% as against the defendant.

24) On the issue of quantum payable, the plaintiff relied on the case of Joseph Kiptanui Koskei –vs- Kenya Power and Lighting Company Limited (2010)e KLR,Kisii HCCC No.147of 2009,where the plaintiff sued the defendant for an electrocution accident. The injuries after the accident rendered him incapacitated not to work again, the plaintiff was awarded Ksh.3,326,000/- for (general damages for pain and suffering and loss of amenities, future medical expenses and special damages)

25) The plaintiff also relied on the case of James JosephRughendo-vs- Kenya Power and Lighting Company Limited (2011)e KLR Nairobi HCC No.539 of 2004,where the plaintiff suffered 70% disability after an electric shock at work. The court awarded Kshs.3,780,000 for (general damages for pain and suffering and loss of amenities, cost of prosthetics, maintenance and cost of domestic help)

26) The damages payable as submitted by the defendant is that it is a fundamental principle that a defendant ought not to be punished for injuries suffered as a result of some mishap. The defendant can only be ordered to compensate in such a sum as is reasonable.

27) It has to be noted that in the defendant’s submission, it does not peg a specific amount as adequate compensation for the plaintiff. The defendant invites this court to look at damages as compensation vis-a-vis the same damages when paid to the plaintiff is invested in a good interest earning bank, this would give the plaintiff a monthly earning leaving her lump sum intact until the end of her working life.

28) For instance in a case a plaintiff is awarded damages of Ksh.1,000,000/- invested in bank earning interest at 10% per annum, the plaintiff would getKsh.8,000/- per month leaving her lump sum intact. In the same spirit, Ksh.4,000,000/- in damages to a plaintiff at 10% would attract a monthly income of Ksh.33,000/-. When explaining this proposition, the defendant relied on the Court of appeal case of Auni Bakari –vs- Hadija Olesa (1982-88)1 KAR 1033.

29) The defendant in persuading this court on the amount commensurate for damages payable, relied on the case of Ngugi-vs- AG HCCC No.15 of 1994,where Rawal J, (as she then was) awarded Ksh.1,500,000/-in an electrocution accident where the plaintiff suffered severe brain injury and 63% disability in 2003. The defendant is of the view that the injuries in those cases were more severe than those obtaining in this case.

30) The defendant calls on this court to remember that the sum of Kshs.630,000/- has been paid to the plaintiff by the defendant under the Work Injury Benefit Act.

31 Having considered the competing arguments of the parties on quantum, I am of the considered view that the following awards which are commensurate with near similar awards should be made as follows:

i. General damages for pain, suffering and loss of amenities Kshs.500,000/-

ii. Special damages (for medical expensesand Doctor’s Report) Kshs. 43,476/-

iii. Future medical expenses(Physiotherapy) Kshs. 200,000/-

Loss of future earning (9000monthly salary 12x35 multiplier) Kshs.3,780,000

the above award to be subjected to 40%contribution and Kshs. 630,000/- paid to the plaintiff under the Work Injury Benefit Act.

Total Ksh. 2,336,085. 60/-

v. Costs to the plaintiff.

vi Interest on (i) – (iv) above at court rates from date of judgment until payment in full.

Consequently judgement is entered as stated hereinabove.

Dated, Signed and Delivered in open court this 6th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

..................................................... for the Defendant