[2017] KEHC 7239 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL APPEAL NO. 62 and 63 OF 2015

(CONSOLIDATED)

GABRIEL OWE OKELLO........................APPELLANT

VERSUS

UJENZI QUARRIES LTD......................RESPONDENT

(Being an Appeal from the Judgment of the Resident MagistrateHon. A.A.Odawa

in Kisumu CMCC NO.165 of 2013 delivered on 16th June 2015)

JUDGEMENT

Gabriel Owe Okello(hereinafter referred to as respondent) sued Ujenzi Quarries Ltd(hereinafter referred to as appellant) in the lower court claiming damages for in the lower court claiming damages for injuries allegedly suffered on 28th April 2012 while the appellant was lawfully working for the respondent.

On the other hand, the respondent filed a statement of defence and denied the claim and urged the court to dismiss the plaintiff’s claim with costs.

In a judgment delivered on 16th June 2015, the learned Magistrate found that the appellant had proved his case on a balance of probability, apportioned liability at 100% in favor of the appellant as against the respondent but made no award for general damages.

The Appeal

The Appellant being dissatisfied with the lower court’s decision preferred this appeal and filed the Memorandum of Appeal dated 13th July 2015 which set out 3 grounds of appeal that:-

1. The Learned trial Magistrate erred in law and in fact by holding that the appellant failed to prove that he sustained injuries

2. The Learned trial Magistrate erred in law and in fact for failing to quantify the claim under the law

3. The Learned trial Magistrate erred in law by completely disregarding the evidence of the clinical officer on account of injuries suffered by the appellant

Subsequently, on 16th July 2015, the respondent filed memorandum of cross-appeal seeking an order that the decision that respondent was liable at 100% be reversed. The cross-appeal is based on two main grounds namely:

1. The Learned trial Magistrate erred in finding that the respondent was liable for the accident in the absence of evidence to support the said liability

2. The Learned trial Magistrate erred in finding that because the respondent did not call any witness to contradict the plaintiff’s evidence, the respondent was 100% liable for the accident

SUBMISSIONS BY THE PARTIES

Appellant’s submissions

The appellant’s counsel Mr. Onyari submitted that having found the respondent negligent and liable at 100%; the learned trial magistrate was under an obligation to quantify the amount payable as general damages. He further submitted that the variance between the pleadings and appellant’s statement is not sufficient ground to deny him damages for injuries suffered.

Respondent’s submissions

The respondent’s counsel Ms. Nishi submitted that the burden of proof rested wholly on the appellant to prove the particulars of negligence set out in his plaint, and that the fact that the respondent did not call any evidence did not discharge appellant from that burden.

The evidence

This being the first appeal, it is my duty under section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to my own independent conclusion taking into account the fact that I did not have the advantage of seeing and hearing the witnesses as they testified.

This principle of law was well settled in the case of SelleVs Associated Motor Boat Co. Ltd (1968) EA 123where Sir Clement De Lestang stated that:

“This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul HammadSarif – Vs – Ali Mohammed Solan (1955, 22 EACA 270).”

Appellant testified that he was removing water from a hole when a pipe burst as a result of which he was injured. The respondent did not tender any evidence.

Analysis and Determination

It is not disputed that the appellant was an employee of the respondent and he was injured at his work place. What is in dispute is whether the accident is attributable to the negligence of the respondent.

In HALSBURY’S, LAWS OF ENGLAND, 4TH EDITION,it is stated at paragraph 662 (p. 476) as follows:-

“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.”

In Boniface Muthama Kavitav Carton Manufacturers Limited CIVIL APPEAL NO. 670 OF 2003[2015] eKLROnyancha Jobserved that:

“The relationship between the appellant and the respondent as employer and employee creates a duty of care. The employer is required to take all reasonable precautions for the safety of the employee, to provide an appropriate and safe system of work which does not to expose the employee to an unreasonable risk.

According to Winfield and Jolowicz on Tort 13th Edn.p.203 …Employers liability is defined: -.

“At common law the employers duty is a duty of care, and it follows that the burden of proving negligence rests with the plaintiff workman throughout the case. It has even been said that if he alleges failure to provide a reasonable safe system of working the plaintiff must plead, and therefore prove what the proper system was and in what relevant respect it was not observed.”

The principle of law emerging from the above authorities is also applicable to the facts of this case and I shall apply accordingly. The appellant pleaded that he sustained injuries due to the negligence of the respondent and stated the particulars of breach of statutory duty. These are:-

1. Failing to provide the plaintiff with safety gear

2. Failing to ensure the safety of the plaintiff

3. Exposing plaintiff to danger

4. Failure to provide plaintiff with a safe working environment

5. Failing to take measures to prevent the accident

For the appellant to succeed in his claim, he has to prove, among others, that he was injured while engaged on duties that he was assigned or expected to perform in the course of his employment. Further, the appellant has to prove any one or more of the particulars of negligence and breach of statutory duty pleaded as against the respondent, and to show that he was also not negligent in the performance of his duties.

It was held by the Court of Appeal in this regard in Purity Wambui Murithii v Highlands Mineral Water Co. Ltd, [2015] eKLRas follows:

“Section 6(1)of the Occupational Safety and Health Actprovides:-

“Every occupier (employer) shall ensure the safety, health and welfare at work of all persons working in his workplace.”

It, therefore, follows that as a general rule, the employer is liable for any injury or loss that occurs to his employees while at the workplace as a result of the employer’s failure to ensure their safety. Does this mean that the employer would always be liable in all circumstances regardless of what caused the accident in question" We do not think so. We say so because where an accident happens due to the employees own negligence. It would be unfair to hold the employer liable.

While it is not disputed that the respondent had a duty of care; the appellant stated that he was removing water from a hole when a pipe burst as a result of which he was injured but failed to disclose the correct and exact particulars of what caused the pipe to burst. He similarly did not state whether the accident was one that was reasonably anticipated by the respondent to put corrective measures to avoid injuries to its employees. In my considered view, it was not within the powers and control of the respondent to anticipate or foresee that the pipe would burst. A party can only warn or put corrective measures in place when there is inherent danger which can be reasonably anticipated.

In the current case the respondent’s defence in the lower court denied particulars of negligence that were pleaded in the plaint. It was therefore incumbent upon the appellant to establish such nexus. Justice J. V. Juma in the case of Susan Mumbi Waititu v Kefala Greedhin NRB HCC 3321 of 1993 stated that:-

“The question of the court presuming adverse evidence does not arise in civil cases. The position in civil cases is that he who alleges has to prove. It’s for the plaintiff to prove her case on the balance of probability and the fact that the defendant doesn’t adduce any evidence is immaterial”.

From the foregoing, I find that the learned trial magistrate’s finding that the plaintiff’s claim had been proved for the reason that the defendant did not call any witness was based on a misapprehension of the facts.

On quantum, the appellant’s counsel submitted that the court ought to have assessed the reasonable amount of quantum that would fairly compensate the appellant. I do agree with the appellant’s submission to the extent that a trial court and this court are not courts of last resort. They must assess damages even where the party claiming is unsuccessful in a claim for general damages.

In LEI MASAKU V KALPAMA BUILDERS LTD CIVIL APPEAL NO. 40 OF 2007[2014] EKLRMabeya J. held that:

There is the issue of failure to assess damages. It has been held time and again by the Court of Appeal that the court of first instance must assess damages even if it finds that liability has not been established. To have casually dismissed the suit and fail to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the Appellate Court needs to know the view taken by the court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behoves this court to assess quantum.

Appellant pleaded that he was injured on right eye, chest and had cut on the right hand. In his testimony before the trial court, plaintiff stated that he was injured on left hand and right eye. The initial treatment notes produced by PW3 show that appellant was treated for a cut wound injury to the left forearm only while Dr. Okombo’s report PEXH. 5 (a) shows that plaintiff had tenderness on chest, right elbow, right eye and 1cm scar on right elbow joint.

From the evidence on record;the only injury that was pleaded and supported by evidence is injury to the right eye. According to the appellant, soil got into his right eye. Dr. Okombo’s report PEXH. 5 (a) shows that appellant had tenderness in the right eye. I have considered the case of Fanny Esilakov Dorothy Muchene HCCC 642 OF 1991that was cited by the appellant in which Kshs. 150,000/- was awarded for cuts over left upper arm, multiple cuts left wrist, cuts left knee, cuts right arm, sprained ankle and blunt head injury with swelling. Respondent did not make any offer nor cite any authority. The injury to appellant’s right eye was a soft tissue injury which is far much less serious than the injuries sustained in the cited case. Had appellant proved his case; an award for Kshs. 40,000/- would have sufficed.

In the end and for the reasons given on the assessment above, the appeal is dismissed in it’s entirely. The cross-appeal succeeds with costs of the appeal and the proceedings in the lower court.

DATED AND DELIVERED THIS 16th DAY OF March 2017

T. W. CHERERE

JUDGE