[2017] KEHC 201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

HIGH COURT CIVIL APPEAL NO: 22 OF 2016

G4S COMPANY LIMITED.........................................APPELLANT

-V E R S U S-

ANTHONY KATHENGE MURIUKI......................RESPONDENT

J U D G M E N T.

1. This is the judgement of the court in Civil Appeal No: 22of 2016. The said appeal arises from the judgment of the Chief Magistrate’s court at Thika. In Civil Case Number 547 of 2014, ANTHONY KATHENGE MURIUKI, sued G4S COMPANY LIMITED for general damages and special damages arising out of injuries suffered at the Defendant’s premises while the plaintiff was in the course of his duties. The plaintiff averred that the injuries were due to negligence, carelessness, break of statutory duty and breach of contract on the part of the defendant. The plaintiff set out the particulars of negligence of contract or statutory duty on the part of the defendant/its agent/servant.

2. The defendant filed his defence dated 3rd September, 2014 and filed on the same day. He denied the particulars of as set out by the plaintiff in his claim. In particular he denied that the occupational safety and Health Act 2007 is applicable in this circumstances. He further denied that the plaintiff suffered injuries and put him to strict proof thereof. He further denied that the plaintiff is entitled to damages as set out in the plaint.

3. The case proceeded to hearing in which the plaintiff PW1 - was the only witness in the case for himself. For the defence DW1 appeared for the defence. DW2 – WILLIAN SEWE also appeared for the defence. The court found for the plaintiff to the extent of 80% against the Defendant. In the sum of Ksh. 1,123,126. 90/= itemized as here below:

General damages Ksh. 1,400,000. 00/=

Special damages Ksh. 3,000. 00/=

Less 20% on liability Ksh. 1,403,000. 00/=

Interest at 12% p.a. on special damages Ksh. 280,000. 00/=

Ksh. 3,000/= for 10/07/2014 - 15/07/2014 Ksh. 726. 90/=

TOTAL Ksh. 1,123,126. 90/=

4. The defendant G4S COMPANY LIMITED has appealed against the court judgement delivered on 15th July, 2016.

The appellant’s grounds of appeal are as follows:

1. The learned magistrate erred in law and in fact in failing to properly consider and evaluate the evidence before him which showed that:

a. The respondent was not injured in the course of duty.

b. That the respondent was accosted by thugs and suffered injuries after he had left his assignment.

c. The appellant had discharged its duty of care to the respondent having provided him with all the tools required for the discharge of his duties.

2. The learned magistrate failed to consider the oral testimony of the respondent which confirmed that at the time of the incident, he had left his assignment to give direction to strangers who later on turned against him and injured him.

3. The learned magistrate erred in law and in fact in totally disregarding the appellant’s evidence and the testimony of its witnesses.

4. The learned magistrate erred in law and in fact in holding the appellant liable for the criminal acts of thugs who were neither its employees nor agents.

5. The trial magistrate erred in law in holding that the appellant was liable for the injuries sustained by the respondent, when the injuries sustained in the course of duty and the thugs who hurt the appellant were not the appellant’s agents.

6. The learned magistrate erred in in law and infact in making an award of general damages of Ksh. 1,400,000/= as General damages for the reason that:

a. The learned magistrate erroneously held that the respondent had asked for an award of General damages of Ksh. 2,000,000/= while the respondent had asked for a sum of Kshs. 800,000/= in his written submissions filed on 1st April, 2016.

b. Relied on the decision in Nakuru HCC No: 55 of 2004 Charles Komoso Toton Versus Reuben Cherutich where the plaintiff who suffered multiple and more serious injuries than the respondent herein was awarded Ksh. 1,600,000/= as General damages.

c. Made an award of damaged that was in the any event manifestly excessive.

7. The learned magistrate erred in law and in fact in failing to properly consider and evaluate the appellant’s submissions dated and filed on 1st April, 2016.

8. The learned magistrate erred in law and in fact in failing to find that the appellant had proved its defence on a balance of probability.

For these reasons wherefore the appellant for this appeal to be allowed ; the judgment of 15th July, 2016 be set aside and be substituted thereof with an order dismissing the respondent’s suit against the appellant; and that the first respondent do pay the costs of the appeal and of the lower court.

5. SUBMISSIONS.

a) The appellant’s submissions were as follows:

(i) The respondent testified that he was not injured at his assignment – while in the course of duty.

(ii) That the employer cannot be held liable to an employer for damages sufficient outside the course of his employment.

(iii) The respondent gave a lift to strangers who injured him.

(iv) That it was unjust for the court to the appellant liable for actions that were beyond his control.

b) The respondent’s written submissions were as follows:

(i) The respondent testified that he was not provided with protective devices more importantly a whistle.

(ii) The respondent therefore he submits it is expected that an employer when assigning his employer to work in an environment where there is potential risk of injury, the employer is under obligation to provide all the requisite tools and equipment to safeguard the employee. That this was not done.

6. FIRST APPEAL.

This being a first appeal, we are reminded of our primary role as a first appellate court namely; to re-evaluate, re-assess and re-analyze the extent on the record and then determine whether the conclusion reached by the learned trail judge are to stand or not and give reasons either way.

7. The analysis of the proceedings of the lower court Case No: 547 of 2014 at Thika Chief Magistrate’s Court. It is not in dispute that the respondent was at material times an employee of G4S COMPANY LIMITED the appellant herein.

On material date i.e. on 19th September, 2012 he was on duty as a security at Alliance One Tobacco. It is also not in dispute that he was injured by two unknown people who attacked him. He suffered injuries and damages. PW1 testified that he was not supplied with a whistle or baton.

8. QUESTIONS FOR DETERMINATION.

i) Was the Respondent injured while on duty?

ii) Was the Appellant responsible for the Respondent’s injuries?

The analysis of the proceedings, indicate there is scanty information, the court would rely on to determine the matter at hand otherwise than for the Respondent. The evidence of DW1 and DW2 is not helpful.

It is true that the appellant ought to have produced a material witness who had replaced the Respondent after his shift and whether a whistle or baton or general tools or protective devices for work were duly handed over to the said Respondent. Having read the proceedings of the lower court together with the judgment thereof, and having read the respective submissions and the authorities therefore, I am satisfied that:

1. The Respondent was injured while on duty. And therefore accordingly, since the Respondent was not supplied with both the whistle and batons, to help in raise alarm in the event of danger, the Appellant must be construed to be responsible for the Respondent’s injuries.

Therefore on question of security second question for determination must be answered in the affirmative. I am satisfied that the Respondent proved his case on balance of probabilities because his defence was not challenged.

9. FINDINGS.

For these reasons, this appeal be and is hereby dismissed.

10. On the issue of quantum of damages, this court can only interferewith the award of damages if it finds the same to be too high or toolow in the circumstances and/or if it is clear that the trial courtconsidered irrelevant factors to come up with the award. Theprinciples on which an appellate court can interfere with an award ofdamaes by a lower court are well set out in Case of KEMERO AFRICALTD and Gathongo Kanini Vs A.M. Lubia & Olive Lubia [1982 -1988]KAR 727 – 730 as follows:-

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages of a trial judge were held by former Court of Appeal for Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of an account a relevant one, or that short of this, the account is so in ordinately low or so inadequately high that it must be a wholly erroneous estimate of the damage.”

11. In the instant case the trial court, considered thatKsh. 1, 123,126. 90/= as general damages, was in my view fair compensation for the injuries sustained by the Respondent. No adequate reason has been given to me by the Appellant that the award is inordinately low or inordinately high in the circumstances. I therefore will not interfere with the trial court’s finding on that. In conclusion and for reasons herein, appeal is dismissed with costs.

JUDGMENT WRITTEN AND SIGNED BY:

C. B. NAGILLAH

JUDGE

JUDGMENT DELIVERED, DATED AND COUNTERSIGNED INKIAMBU BY:

JOEL NGUGI

JUDGE

THIS 10TH DAY OF OCTOBER 2017

In the presence of:-

………………………………..for Appellant.

………………………………..for the Respondent.

………………………………..Court Clerk.