[2005] KEHC 3081 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 76 of 2000 RD

FRANCIS NZIOKA……………………………..….…...........……………… APPLICANT

VERSUS

WYKEM SECURITY CONSULTANTS LTD …….………….........….. RESPONDENT

J U D G E M E N T

The plaintiff was an employee of the Defendant working as a watchman. The Plaintiff states that it was term or an implied term of contract of employment between Plaintiff and Defendant or it was the duty of the Defendant to take all reasonable care for the safety of the Plaintiff while engaged upon the said employment of watchman and not to expose the Plaintiff to risk of injury/damage which they knew or ought to have known and to provide proper working condition to ensure the Plaintiff did his work in safety.

On or about 30. 5.2000 the Plaintiff was at his place of work as instructed by the Defendant while he was attacked by thugs and sustained serious injuries and has suffered loss and damage.

On the part of Defendant statement of defence was filed denying that the Plaintiff was their employee. However this appears false. Exhibit 1 and Exhibit 3 confirm that the Plaintiff was in the employ of Defendant as guard. On the whole the defence is a general denial.

On the hearing date the Plaintiff gave evidence. He states his salary was Sh. 2,200/= per month. On 30. 5.2000 he was at work at Mtongwe at Kaydee Construction Company premises.

It was a large area with houses and buildings but he was guarding 3 houses. As he walked upstairs to check on security, he met two persons coming downstairs. They attacked him and he fell down unconscious. He recovered his consciousness when he was at Coast General Hospital after 8 days.

Exhibit 2 is a hospital card showing that he was taken to hospital at 30. 5.00 and was discharged on23. 6.00. His hands were cut by men at the stairs and they do not perform well. He has many headaches and he feels dizzy. At the time of attack he was not wearing a helmet but had the company’s guard uniform and a whistle. He had no boots. The premises were not fenced by wall or electric wire fence and no alarm to call for help. He was required to look after a large ground which needed more than 1 guard. He denied the allegations made by Defendant in its defence.

On cross-examination he confirmed that he was employed on 29. 12. 1999 and he had been on the job for 6 months. The incident took place during the day and he was not asleep.

In further evidence the Plaintiff called as witness Dr E Maina (PW2). This witness examined the Plaintiff on27. 7.2000. The Doctor referred to some documents from Coast General Hospital. The Doctor found depressed fracture of left parietal skull, subcute left parietal extradural haematoma and contusion of adjacent brain. He had also 5 cm linear scar in upper frontal scalp and 4. 5 cm linear scar in upper right parietal scalp with surrounding depressed skull. His right upper limb was injured and is moderately weakened. He had prolonged inpatient treatment (24 days) and was attending outpatient physiotherapy. This witness confirmed that he was paid Sh. 1500/=, exhibit 7 and for attending court he was paid Sh. 3000/=

On 10. 11. 2004 consent on liability was entered as to 30% against Plaintiff and as to 70% against the Defendant. No witness was called for Defendant. Parties promised to make written submissions but did not do so to date. In the circumstances the court is bound to assess quantum as best as it can.

The plaintiff has filed a list of authorities. The first authority Makala Mantu Mumenbe – Vs – Nyali Golf & Country Club Civil Appeal No. 16/89, Court of Appeal decision in that case, a guard was assaulted by robbers and sustained serious injuries on the head resulting in fracture injury on left jaw and became unconscious. His eyesight was blurred and had serious headaches. Permanent incapacity was reported by the Doctor. The guard had only been provided with a torch, a club and whistle. There was no helmet. In that case the Court of Appeal awarded Ksh. 80,000/= for loss of earning and pain and suffering. That was in 1989.

The next authority is Phyllis Sammy and 2 others – Vs – Tawfiq Bus Service HCC No. 834 of 1995. This was a road traffic accident. However one of the Plaintiffs had head injuries which affected his life seriously and a sum of Sh. 650,000/= was awarded. The 3rd plaintiff had compound depressed skull fracture, fracture of right front parietal. A further examination of the judgement of Nyarangi JA, the matters to be taken into consideration are spelt out. Where exparte judgement has been entered the purpose of trial is only to assess the quantum. The liability in this case is already settled by consent.

Having admitted liability it goes without saying that the Defendant was negligent in not providing helmet or secured the premises (site) with wall or electronic fence or boots and other safe tools of the business of a watchman/guard. By accepting 30% liability the Plaintiff admits the proposition that the employer is expected to exercise of due care and skill only.

The purpose of this judgment is therefore to compensate the Plaintiff for loss of earning and for pain and suffering. He was 50 years old. He said he could not continue in the employment any more. He did not feel fit. His salary was Sh. 2,200/= per month and he could have continued in employment to the age of 60 years.

As in the cited case loss of earning therefore is 10 years X 2200 p.m. X 12 yielding Sh. 264,000/= Special damages pleaded and proved

Sh. 3000/= Doctor’s attendance

Sh. 1500 Doctors report

________

Sh. 4,500/=

Pain and Suffering Sh. 400,000/=

Total award Sh. 668,500/=

The Plaintiff will have interest and costs at court rates. The amount is to be apportioned as agreed 30%:70%.

Judgement entered 70% of 668,500/= i.e. Sh. 467,950/= in favour of Plaintiff with interest at court rates and costs ……

Dated 27th July 2005.

J KHAMINWA

JUDGE