[2017] KEHC 2535 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 608 OF 2006

EVERFLORA LIMITED.............................................APPELLANT

VERSUS

RAPHAEL MWENDA MUGWIKA........................RESPONDENT

(Appeal from the judgment of Hon. E. Boke in Milimani Civil Case No. 26 of 2005 delivered on 22/08/2006)

JUDGMENT

The Respondent was the Plaintiff in the Lower court and by virtue of a Plaint dated 9th March, 2005, he claims that on or about June, 2003 and several months before and thereafter, the Respondent was carrying on his duties at the Appellant’s premises as a cleaner and a sweeper, when due to the Appellant’s, its agent’s or servant’s negligence, he was exposed to dust and other foreign bodies which he was forced to inhale as a result of which he sustained a severe chest infection. He averred that his injuries were occasioned as a result of the Appellant’s failure to provide him with protective gear. The Respondent therefore filed a suit claiming general damages for pain and suffering and special damages of Kshs. 2,000/=

The claim was denied by the Appellant who filed a Statement of Defence dated 16th November, 2005 and averred that no such accident occurred and if any, it was wholly caused by and/or was substantially contributed to by the negligence of the Plaintiff.

The trial Magistrate found the Appellant wholly liable for the Respondent’s ailment and entered judgment in favour of the Respondent in the sum of Kshs. 70,000/= in general damages and Kshs. 2,000/= in special damages.

Aggrieved by the decision, the Appellant filed this Appeal on the grounds that;

(a) The Learned Magistrate erred in law and in fact in holding the appellant liable in negligence in total disregard of the evidence on record.

(b) The Learned Magistrate erred in law and in fact in transferring the onus of proof to the defendant rather than the Plaintiff.

(c) The Learned Magistrate erred in law and in fact in awarding excessive damages contrary to law ; and

(d) The Learned Magistrate erred in law and in fact in disregarding the Appellant’s evidence and submissions on both liability and quantum..

From the grounds of appeal as well as the submissions of the Appellant, the issues which this court will seek to determine are;

a) Whether the Respondent proved his case on a balance of probability.

b) Whether the damages awarded were excessive in the circumstances.

c) Whether the Respondent was an employee of the Appellant at the material time

This being a first appeal, the role of this court will be to re-evaluate the evidence that was before the lower court and determine whether the appeal is to stand or not. In the case of Ephantus Mwangi and Geoffrey Ngugi Ngatia v. Duncan Mwangi Wambugu [1982]-88 1KLR 278the principle is that a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or the judge is shown to have acted on wrong principles.

In the case of Mbogo & Another -v- Shah (1968) EA 93 at 96, it was stated that

“an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

The Respondent who testified as PW2 stated that he was employed by the Appellant between April, 2003 and August, 2004 as a cleaner which duties included cleaning toilets within the Appellant’s premises. No protective gears were provided and he started experiencing chest congestion. He informed the Appellant and its employee, one Kamau, gave him tablets. Symptoms persisted and in September, 2004 he went to a hospital in Juja complaining of chest pain, headache and eye ache. The doctor recommended the use of protective gear at his place of work. In cross examination the Respondent clarified that the Appellant had two sections of operations, the section dealing with Coffee was called Pamuma while the other one dealing with flower was called Flora. That later on, it changed to everflora limited.

The Respondent was first examined by Patrick Gataiya Kamau (PW3), a clinical officer who testified that on 4/9/2003, the Respondent visited his clinic complaining of chest pain and coughing. He recommended the use of nose mask. The Respondent went back to him on 2/8/2005 and he diagnosed him with bronchitis. He concluded that if one is not exposed to the condition for about 2 months the problem clears.

Dr. Kiama (PW1) testified that he examined the Respondent on 6/8/2005 and found that he was suffering from conjunctivitis and bilateral chrapitations and formed the opinion that he suffered from severe harm and he requires long term consultation and medication. He also noted that the cause was allergic exposure to fumes and if the exposure stops, the conjuctivity clears but the bronchitis doesn’t.

The Appellant relied on the medical report by Dr. P. M Wambugu dated 3/4. /2006. He examined the Respondent and found that he did not have symptoms related to any form of occupational ailment.

The Appeal was canvassed by way of written submissions which I have duly considered.

On the issue of liability, the court is alive to the requirement that being the first appellate court, it must re-evaluate and analyse all the evidence that was produced in the lower court and arrive at its own independent conclusion, keeping in mind that it did not get the chance to see the witnesses and observe their demeanor.

The Respondent gave his testimony that he worked with the Appellant Company as a cleaner and that he was not provided with the protective gear. As a result of exposure to fumes, he suffered chest pain, head ache, eye ache and was diagnosed with bronchitis. During the medical examination, he stated that he was working for pamuma, which entity the appellant denied knowledge of. The Respondent in cross examination clarified that the Appellant Company had two sections, one dealing with flowers called Flora while the other section dealing with coffee was called Pamuma. Being a casual labourer, he was not given employment documents. I take notice that it is a normal practice within our jurisdiction that casual labourers are not given letters of employment in which case, the Respondent’s averment that he did not have any, is not unreasonable. In my view, the Respondent was able to describe and identify the entity that had employed him. He even knew and mentioned some of his colleagues who were working with him.

That being the case, the Appellant had a duty to ensure a safe working environment for the Respondent. PW3, who first examined the Respondent, recommended the use of a nose mask while sweeping. The Respondent requested for the same from the Appellant Company but this was ignored and he was told to quit the work if he could not work without. I find that the learned magistrate was right in holding the Appellant liable.

That said, I will now address the issue of damages. It is a well-established principle that the assessment of quantum of damages in a claim for general damages is a discretionary exercise. The Appellate court will interfere only if, the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. These principles were set out by the Court of Appeal for Eastern Africa, the predecessor of the Court of Appeal of Kenya, and were subsequently approved and adopted by the Court of Appeal in several cases among them; Kanga v Manyoka [1961] EA 705, Lukenya Ranching and Farming Co-op. Society Ltd v Kavoloto [1979] E. A. 414, Butt v Khan [1981] KLR 349, Kemfro Africa t/a Meru Express & Another v. A. M. Lubia & Another [1982 – 88] 1 KAR 72 and Mariga v Musila [1984] KLR 257.

The Respondent was examined by three doctors. PW1 and PW3 concurred that the Plaintiff’s complaints were genuine and that he was suffering from the chest pains and breathing complications. The medical report by Dr. Wambugu produced by the Appellants show that the complications were non existent and in his opinion, it is likely that the Respondent never suffered from the alleged complications. It is worth noting that PW1 and PW3 were in agreement that if a patient in that state stops being exposed to the allergic conditions causing the ailments, the complications would clear. In deed PW3 stated that if one is not exposed for a period of 2 months he would heal. The medical examination conducted by the Appellant’s doctor was done almost one and a half years after the Respondent stopped working for the Appellant by which time the condition could have cleared.

My re-evaluation of the evidence on record reveals that the Respondent suffered from the ailment but the same was not severe. I find that the award of Kshs. 70,000/= in general damages was not excessive. The special damages awarded were specifically proven and I will not disturb the award of Kshs. 2,000 made.

In the end, I find that the Appeal has no merits and the same is hereby dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

……….............

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent