[2004] KEHC 1578 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 96 OF 2000

EASTERN PRODUCE (K) LTD………………………………………….……………..APPELLANT

VERSUS

NICODEMUS NDALA…………………………………………………………………..RESPONDENT

JUDGMENT

This appeal arises from the decision of the Principal Magistrate Kapsabet, in which he awarded Nicodemus Ndala the sum of K.shs.76,000/- for general damages as well as K.shs.1500/- for special damages.

Briefly, Ndala’s case in the subordinate court, was that at all material times he was in the employment of Eastern Produce (K) Ltd as a tea plucker, and that on 4/11/1996, while in the course of his employment, he fell down in a ditch, as a result of which he sustained serious injuries. He attributed the blame to his employer who he claimed was negligent, careless and or reckless. He was treated for the injuries that he had sustained but the company, which dismissed him thereafter failed to meet his medical expenses.

Eastern Produce (K) Limited, which denied the fact that he was their employee, and which I shall hereinafter refer to as ‘the Company’, also denied that the accident had occurred and denied any liability for it. It averred that it was he who was negligent and was thus the sole contributor of his woes. Particulars of his negligence were particularised as, failing to adhere to set safety rules, carrying out his duties recklessly and negligently, inflicting injury upon himself, failing to heed warning and take precautions towards his own safety and finally, exposing himself to danger. It then proceeded to plead volenti non fit injuria, which facts were all traversed in the reply to the defence.

After a full hearing, the learned trial Magistrate found that Ndala was in the employment of the Company on the material date, and that Ndala had sustained the injuries while on duty. He went on to find that by not sealing the hole into which Ndala had fallen, the company exposed its workers to risk and it was thus liable. He apportioned 80% of the blame to the company and 20% to Ndala, after which he granted him the aforementioned award against the company. I shall now refer to Ndala as ‘the respondent’.

The company which feels aggrieved by the trial Magistrate’s finding has now preferred this appeal.

At the inception of the hearing, Mr. Fundi informed the court that he would only urge grounds 1 to 6 of the Memorandum of Appeal, as one, but that he would abandon ground 7.

The said six grounds are that:

1. The learned trial Magistrate erred in law and fact in holding the company liable when there was no evidence in that regard.

2. The learned trial Magistrate erred in holding the company negligent for acts of nature of which the company had no ability to deal with.

3. The learned trial Magistrate erred in law and fact in holding the company liable when no contract was proved and when no evidence was adduced in support of the breach alleged in plaint. 4. The learned trial Magistrate erred in failing to dismiss the respondent’s suit on the grounds:-

(i) That no contract of employment was proved by the respondent.

(ii) That no evidence was given that there was a particular term of contract in the said contract binding the company.

5. The learned trial Magistrate erred in failing to hold that the activities of wild animals in digging holes under the earth could not have been in the knowledge of the company.

6. The learned trial Magistrate erred in failing to evaluate the evidence adduced in its entirety.

It was the submission of Mr. Fundi, that the issue of liability was not established against the company on a balance of probability, as his claim was based on the fact that he fell after slipping in a hole in the company’s farm. He referred to the plaint and noted that the claim was based on a contract, but that he had failed to prove the existence of such a contract to show breach, nor was he not able to prove common law negligence.

It was also his submission that the company could not have foreseen the risk that led to the injuries, which the respondent had sustained, and therefore, the trial Magistrate should not have found the company liable.

It was therefore his contention that the respondent’s claim ought to have been dismissed with costs, as his case was not proven.

He relied on interalia, the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd [1991] 2 KAR 258.

Mr. Omboto was however opposed to the appeal, and it was his submissions that the fact that the respondent was an employee was no longer an issue after DW1 gave his evidence. He also relied on the evidence on record to show that the company went round sealing the holes, and therefore it owed the respondent a duty of care.

As is expected of me, I have had to re-evaluate the evidence on record and to relook at the pleadings with a view to establishing whether or not this appeal is meritorious.

The respondent gave evidence how he had fallen in a ditch which had been dug by a porcupine and which he had not seen, as it was then concealed by leaves. He was then carrying out his duties as a tea-plucker then in the company’s employment. His evidence that the company used to have such holes sealed was not controverted at all.

The company called one of its supervisors as its only witness. He testified that the respondent was his former workmate at Sitoi Tea Estate, and that he was his supervisor at the material time, and that he was on duty when he received a report that someone had been injured while on duty. He went to the scene where he found the respondent who had fallen into a hole, which he described as an ant hole. He then sent him to the dispensary. It was also his testimony that the hole was below the leaves and that it would not have been possible for anyone to see it.

Though he stated during cross-examination that he had not seen the hole prior to the incidence, he however conceded during re-examination that the respondent had stepped into the hole and that the employees covered it after the accident.

From the above evidence it is clear that the respondent was in the employment of the company as at 4/11/1996 and that on the said date, he sustained injuries when he fell into a hole while picking tea, thus while in the course of his employment. I therefore find no reason to fault the learned trial Magistrate’s findings so far, and on that account, the company is bound to fail in its ground 4 of the appeal.

The next issue for my determination is whether the company was liable for being negligent and whether it was in breach of its contractual responsibilities the respondent who was it’s employee.

Did the Company have a duty of care? Mr. Fundi relied on the case of Mumias Sugar Company Limited v Samson Miyienda- H.C.C.C (Kakamega) 58/2000 in which the learned Justice Waweru had found that the employee of the Sugar Company had full command and control of his activities as a cane cutter, and declined to make a finding in favour of the employee. The situation in the appeal before me would however appear to be quite different and the said case can be distinguished in that this company knew very well of the dangers exposed to it’s workers in the field and hence the fact that it had employed people to go round sealing such holes.

This can only be taken to mean that the company was very well aware that such holes existed from time to time and that they posed a danger to it’s employee. This fact was not controverted by the company’s witness. In fact he confirmed it quite clearly. The Company therefore had a duty of care over it’s employees including the respondent, and again, on that ground I would not fault the learned trial Magistrate who having found, that the company was liable to the respondent he however attributed 20% of the blame to the respondent, whom he found, was expected to check where he was stepping. On that account, the company is bound to fail in its grounds 1, 2, 3 and 5. In view of the above I do, find that the learned trial Magistrate evaluated all the evidence that was adduced in it’s entirely and that this appeal is lacking in merit.

I do dismiss it with costs to the respondent. Dated and delivered at Eldoret this 22nd day of July 2004.

JEANNE GACHECHE

JUDGE.

Delivered in the presence of:-