[2017] KEHC 2244 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 6 OF 2015

G. N. PLASTICS LTD...........................................APPELLANT

-V E R S U S –

STEPHEN KALELI NDETO..............................RESPONDENT

(Being an appeal from the judgement of Hon. Mrs. M. C. Chepseba SRM Magistrate Court Milimani Civil suit no. 4787 of 2012 delivered on 9/12/2014)

JUDGEMENT

1. Stephen Kaleli Ndeto the respondent herein, was employed by G. N. Plastics Ltd, the appellant herein, as a casual labourer. While in the course of his employment and on duty as a machine operator in the appellant company, he sustained injuries that resulted into amputation of part of his left hand. The respondent thereafter filed a claim against the appellant at the Senior Principal Magistrate’s Court at Milimani and claimed for general and special damages together with loss of future earnings.

2. Hon. Chepseba (Mrs), the learned trial magistrate found the appellant 70% and the respondent 30% liable and awarded the respondent a total of ksh.2,438,200/= in damages in a judgment delivered on 9th December 2014. The appellant being aggrieved by the judgment of the trial court, preferred this appeal.

3. On appeal, the appellant put forward the following grounds in its memorandum;

1. THAT the learned magistrate erred both in law and facts in awarding kshs.2,438,200/= as general damages as the same is excessively high.

2. THAT the learned trial magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the appellant and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of liability and compensation to the respondent.

3. THAT the learned trial magistrate erred in law in failing to find that the nature of injuries sustained by the respondent did not warrant such an exorbitant award of kshs.2,438,200/=.

4. THAT the learned trial magistrate erred both in law and fact by making an award on general damages that was inordinately high as to represent an entirely erroneous assessment.

5. THAT the learned trial magistrate erred both in law and fact by failing to uphold the doctrine of precedent and appreciate and be guided by the prevailing range of comparable awards in cases of similar nature.

6. THAT the learned trial magistrate erred in law and fact in failing to properly taken into account proper legal principles regarding quantum while considering the judgement thus arriving at the excessive award.

7. THAT the magistrate erred both in law and in facts in failing to take into account the medical documents before her whilst making the award.

4. When the appeal was lodged, the appellant moved to court seeking an order for stay of execution of the judgment and decree herein pending the hearing and determination of the appeal already lodged where senior principle magistrate A. Lorot (Mr) on 5th March , 2015 directed that:

1) There shall be stay of execution of the judgment and decree pending the finalization of the appeal, High Court Civil Appeal No. 6 of 2015.

2) The appellant herein shall release to the respondent the sum of kshs.1,218,100/= being half of the decretal sum forthwith, in any event not less than 14 days of this ruling

3) The balance thereof, including the costs and interests computed shall be held in an insurance bond, to be executed with an insurance company of repute within 14 days of the date of this ruling

4) Failing any of the conditions in (2 ) and (3) above, the respondent shall be at liberty to execute on their recourse to the appellant herein.

5. The respondent thereafter preferred a cross appeal against part of the said ruling and orders following there from on the following grounds:

1. THAT the trial magistrate erred in law and in facts in awarding the respondent kshs.2,438,200/- same being very low given the overwhelming evidence on record, the respondents hand was fully crushed as he watched. The pain and suffering was immense.

2. THAT magistrate erred in law and fact in failing to hold that the respondent/plaintiff was illiterate and he could and cannot read and write or even understand the instruction that were written in English. It was sheer negligence on part of the employer to let such an employee operate a dangerous machine with no training at all. The trial court erred in law in penalizing the respondent/plaintiff with 30% liability. The employer appellant was 100% liable for the accident of the respondent.

3. THAT the trial magistrate erred in law and in fact in further punishing the respondent/plaintiff with 50% liability on loss of future earning when the evidence before the court shows he cannot engage in any manual gainful employment with such serious disability of missing hand. The trial court was not considerate or and humane in its ruling.

4. THAT the trial court erred in law and in fact in not taking judicial notice that the statutory minimum wage is ksh.9,700/- per month.

Reasons whereof the respondent in this cross appeal proposes to ask this honourable court for orders that;

1. That the cross appeal herein be allowed and issue of quantum herein be reviewed upwards.

2. The appellant was 100% liable.

3. That 50% liability loss of future earnings be set aside.

4. This honourable court be pleased to make such orders as may deem just in the circumstances of the case.

6. I have already enumerated the 10 grounds of appeal the appellant put forward in its memorandum. Though the appellant put forward 10 grounds of appeal, I am satisfied that those grounds can be summarised to 2 grounds namely

i. Whether the learned magistrate erred in law and fact in apportioning liability at 70% : 30% as against the appellant.

ii. Whether the learned magistrate erred in law and fact in his award on damages.

7. When this appeal came up for hearing, learned counsel appearing in this matter recorded a consent to have the appeal disposed of by written submission. I have re-evaluated the case that was before the trial court and I have also considered the rival submissions.

8. The first ground of appeal relates to the question as to whether or not the trial magistrate erred in law and fact in apportioning liability at 70% : 30% against the appellant. The appellant submits that this honourable court ought to disturb the trial court’s finding on liability. The appellant also argued that the apportionment of liability at 70%:30% against the appellant is unjustified and against the weight of evidence on the following grounds:

i. The respondent claimed in his testimony that he did not have the relevant experience to operate the crusher machine, his supervisor (DW2) in his testimony clearly stated that the respondent had been employed by the appellant for about 4 years as a machine operator. DW2 further stated that the respondent operated injection machine, crushing machine and a heat gun interchangeably. DW2 was the immediate supervisor to the respondent and stated that there were clear instructions for the use of each machine and the respondent was very aware of that as an employer of G. N. Plastics Ltd. This kind of evidence ought to have mitigated the apportionment of liability to a lower percentage on the part of the appellant than what was awarded by the trial magistrate.

ii. The respondent’s case was that on the fateful day he was feeding the hopper machine when his overalls left sleeve was trapped and pulled his left arm into the machine. However, the appellant witnesses DW1 and Dw2 stated that immediately after the accident, they carried out investigation including inspecting the machine and they noticed that a gunny bag was truck in the blades. The defence witnesses at trial explained and demonstrated by showing the court the photographs of the crusher machine and how the machine was designed with in-built safety mechanism.

9. The testimony of DW2 stated that the blades of the machine are far down and at the curved apart of the machine as shown by the pictures as exhibit D2 e and c .Therefore there is no possibility that the blades can be accessed without opening the hopper. DW2 further stated that he saw some gunny bag stuck with the waste and blamed the respondent for dropping the gunny bag and further opening the hoppers, trying to retrieve the gunny bag causing him the crush injury on his left arm.

10. It is the appellant’s submission that the trial court failed to consider the evidence by the appellant on the type of machine in use at the time of the accident and totally ignored the demonstration of how the machine was designed with in built safety measures could have caused the said accident without its blades being open, and it being on at the time of the accident. This evidence was uncontroverted and thus demonstrates that it was not possible for the respondent to have been injured unless he specifically opened the machine and laced his hand while the machine was in motion and power was switched on. If this could have been considered by the trial magistrate, the appellant believe that the honourable magistrate could have apportioned them a liability lower than 70%.

11. Finding that providing gloves would have been safer. The appellant submits that its witnesses clearly explained that the respondent was only required to collect pieces of pre-cut plastic materials load them into a gunny bag and then lift the gunny bag over the hopper of the crusher machine and pour them out into the hopper. DW2 explained that the respondent did not require gloves for these duties and to the contrary the gloves would have made it difficult for the respondent to carry out his work. The finding by the trial court was that the gloves would have been safer, thus disregarding the appellants witness statements. It is the appellant’s further submission that the above facts were facts presented by the appellant and scenarios which the trial court failed to review and consider while making the conclusion on the respondent’s level of responsibility and only based its conclusion on the level of education of the respondent as the only factor (who stated that he is a class 5 drop out)

12. The appellant contends that a proper analysis of the evidence should have resulted in the respondent shouldering full liability or a larger percentage of the blame. Thus this honourable court ought to interfere and or disturb the trial court’s finding on liability as explained above.

13. The appellant relied on facts as crystallised by the Court of Appeal decision in Ephantus Mwangi and another –vs- DuncanMwangi Wambugu CA 77 of 1982 where Kneller JA stated;

“A member of an appellate court is not bound to accept the learned judges findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities, material to an estimate of evidence or (b) if the impression based on the demeanour of a witness is inconsistent with evidence in the case generally.”

14. The respondent on the other hand submitted that; the appellant had a duty to ensure that the working conditions and environment were favourable to the employee. The respondent gave uncontroverted evidence in the trial court on how he was left alone with a crusher machine to operate yet he was inexperienced. The respondent was illiterate and the employer knew it being a standard 5 drop out. The respondent further submits that there is no way the respondent could have opened the running machine and none of the witnesses produced a profile or manual of the machine to show exactly where the blades are. The photograph produced before the trial court did not show the position of the blade. There was no one to switch off the machine when it caught the left cloth of the respondent’s overall he was wearing on the fateful day. This makes the appellant liable for the injuries sustained by the respondent leading to the amputation of the respondents’ left hand.

16. The appellant was fully aware that the respondent was not able to read and was not experienced in operating the machine but chose to leave the respondent alone without any supervision to operate the machine.

16. It’s for this reason that the respondent is urging this court to set aside the decision of the trial magistrate and substitute it with 100% liability as against the appellant. The respondent relied on the case of Isinga Roses Limited –vs- Zakayo Nyongesa (2016) eKLR where judge Nyakundi set aside the decision on contributory negligence apportioned by the trial magistrate at a ratio of 15% for the respondent and 85% for the appellant and substituted it with 100% liability as against the appellant.

17. After a careful consideration of the rival submissions vis-a-vis the evidence tendered before the trial court, I am convinced that the learned trial magistrate applied the correct principles after analysing he evidence to determine liability. The trial court’s decision on liability cannot therefore be faulted.

18. The second ground of appeal relates to whether or not the learned magistrate erred in law and fact in her award on damages. The trial magistrate upon hearing the case delivered judgment in favour of the respondent herein as follows:

i. General damages for pain and suffering ksh.2,000,000/=

ii. Less 30% contribution ksh. 600,000/=

iii. Loss of earning capacity ksh.1,400,000/=

iv. Special damages ksh.1,036,200/= ksh. 2,000/=

v. Total ksh.2,438,200/=

vi. Plus costs and interest

19. The appellant submits that the award was inordinately high amounting to a wholly erroneous estimate of damages compared to the laid down principles in awarding damages in such claims. The appellant made the following submissions

a) Pain and suffering

The appellant proposes kshs.500,00/= as opposed to kshs.2,000,000/- that was awarded.

b) Loss of future earning

The trial court awarded Kshs.1. 036,300/= calculates as 8,635x12x20(Multiplier)x50%

The appellant submits that the court should have taken into account the fact that the appellant was still willing to employ the respondent and went ahead to continue to pay him despite him not being at work. The respondent discontinued working on his own volition. The appellant also submits that the award should be set aside, but should this court find that an award should be made, then the appellant propose as it was in their trial submission as follows 8,536x12x15(Multiplier)50%=777,150/=

c) The appellant further challenge the award on future earning capacity for not being subjected to contribution by respondent. The appellant submits that all damages should be subjected to the extent of the finding on liability which would reduce the award under general damages for pain and suffering, and general damages for loss of earning.

20. The respondent on the other hand submit that the award for general damages by the trial court was not excessive in any way as claimed by the appellant but very low given the overwhelming evidence on record the respondent suffered loss and tremendous pain as a result of the accident which led to amputation of his left hand. The respondent urges this court to allow his cross appeal based on the evidence on record and to go ahead to award damages higher than the ksh.2,000,000/= awarded by the trial magistrate.

21. The appellant relied on the case of Kipkebe Ltd –vs- MosesKauni Masaki, Kisii High Court Civil Appeal No. 127 of 2004, while the respondent relied on the case of Paul Kipsang Koech & Another –vs- Titus Osle (2013) eKLR.

In the two cases the court stated inter alia:

“It is trite law that an award of general damages is an exercise of discretion by a trial court and the award depends on the peculiar facts of each case. The award must however be reasonable and neither extravagant or oppressive. The trial court has to be guided by such factors as previous awards for similar injuries and such other relevant factors.”

I have carefully considered the competing arguments and further re-evaluated the evidence and I find no fault in the manner quantum was assessed. I am satisfied that the trial magistrate was properly guided in arriving at the award of ksh.2,000,000/=.

22. As regards the Cross appeal, the appellant submits that all the issues raised in the cross appeal have been addressed in their submissions and the cross appeal should be dismissed on the basis of the said submissions.

23. With respect, I agree with the submission of the appellant.

Consequently, the cross appeal will suffer the same fate as the appeal. The appeal and the cross-appeal are hereby dismissed with each party bearing its own costs.

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

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent