[2022] KEHC 9900 (KLR)

Getange v Waridi Limited (Civil Appeal 156 of 2015) [2022] KEHC 9900 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9900 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 156 of 2015

MW Muigai, J

July 14, 2022

Between

Samson Ombati Getange

Appellant

and

Waridi Limited

Respondent

(Being an appeal from the decision of Hon. P.O. Ooko – P.M. delivered on 9 th September, 2015 in Mavoko CMCC No. 748 of 2012)

Judgment

Plaint 1. By a Plaint dated 14th December, 2012 and filed on 31st December, 2012 the Appellant as the Plaintiff sued the Respondent as the Defendant in Mavoko CMCC No. 748 of 2012. The Appellant/Plaintiff sought for;(a)Special damages for Kshs.2,000/-(b)General damages for pain and suffering(c)Cost of this suit.(d)Interest on (a), (b) and (c) at Court rates(e)Any other relief that this Court may deem fit and just to grant

2. The cause of action arose from an accident that occurred on 1/02/2011 when the Appellant/Plaintiff was refilling a tanker when extreme pressure pushed him to the ground causing him injury; that the accident was caused by the negligence and breach of statutory duty of the defendant, their servants or agents.

3. According to the Appellant the accident occurred due to the Respondent’s negligence by;a)Failing to take any of any adequate precautions for the safety of the Plaintiff while he was engaged upon his work.b)Failing to provide and maintain a safe place for the plaintiff to work.c)Failing to provide the plaintiff with any protective gear.d)Failing to provide a safe system of work.e)Failing to provide for the safety, health and welfare of the plaintiff contrary to section 6 of the Occupational Health and Safety Act 2007.

Defence 4. The Defendant stated that if there was an accident on the 1st February, 2011 the same was caused by the Plaintiff’s negligence Particulars of the negligence on the part of the Plaintiff was listed as follows:-a)Exposing himself to risk that he knew or ought to have known.b)Failing to heed instructions given by the supervisor on how to carry out his duties.c)failing to take adequate precautions of his own safety.d)failing to wear the protective wear/gear as provided by his employer.e)failing to concentrate on his work.f)failing to take evasive action.

5. The Defendant denied that the Plaintiff sustained any injuries, loss or damage and denies the particular of injuries and of special damages and put the Plaintiff to strict proof thereof.

6. Demand and notice of intention to sue was never served.

Evidence 7. The matter came up for hearing on 10th June, 2015 a date taken by consent of all parties. The hearing proceeded in the absence of the Defendant and his Advocate who did not attend Court.

8. Pw.1 Samson Ombati Getonge told the Court that he was the Plaintiff. He asked the Court to adopt his statement that he had recorded earlier in respect of the matter as his evidence in chief. He prayed that the Court award the damages in respect of the injuries which he sustained.

9. No Defense evidence was presented in Court.

Trial Court Judgment 10. The Trial Court in its judgment delivered on September 9, 2015 entered judgment for the Plaintiff as against the Defendant in the total sum of Kshs.300,000/- as well as the costs of the suit together with interests thereon at court rates.

Appeal Dated 6Th October, 2015 11. Aggrieved by the Judgment of the Trial Court delivered on September 9, 2015 the Appellant has appealed against the said decision based on the following grounds:-(1)That the Learned Trial Magistrate erred in law and in fact by not considering the case law submitted by the Appellant.(2)That the Learned Trial Magistrate in making a finding on general damages failed to carefully consider matters testified to.

12. The Appellant sought the following prayers;a)This Court makes a determination based on the submissions filed by the Appellant in Mavoko CMCC 748 of 2012. b)Such other or further order this Court may deem just.c)Costs of the Appeal be paid by the Respondent.

Appellant’s Submissions 13. The Appellant filed their submissions on January 27, 2022 and submitted that the award made by the Trial Court was too low in the circumstances of the case considering the fact that the appellant suffered a compressed C3 –C4 Cervical Spine Fracture. The Appellant based his evidence on his own testimony and produced documents and the fact that he was admitted in hospital for seven (7) days.

14. Reliance was made in the case of George Otieno –v- Attorney General & Another [2006] eKLR were the Respondent was awarded Kshs.900,000/- in general damages for C4-C5; C3 bone of the spinal code injuries.

15. Also in the case of David Muriungi Daniel & Another –vs- Martine Githongo Ndereva alias Marin Githingo Ndereva[2017] eKLR the Court of Appeal declined to set aside an award of general damages of Kshs.1,400,000/- .

16. The Trial Court in awarding compensation the Appellant failed to put into consideration the injuries sustained. In the case of Butt –vs- Khan [1997] I KAR the Court stated that;“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent and entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

17. Also, in Mbaka Nguru & another –vs- James George Rakwar NRB Civil Appeal No. 133 of 1998 [1998] eKLR the Court of Appeal stated that;“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

18. The Appellant finally submitted that the Trial Court awarded inordinately low award which was not commensurate with the injuries sustained therefore prays that the Appeal be allowed with costs to the Appellant.

Respondent’s Written Submissions 19. The Respondent filed their submission on March 7, 2022 stating that according to the evidence in chief the Appellant did not prove any negligence on the part of the Respondent. He only pleaded the said allegations.

20. That in the Trial Court Judgment the Trial Court pointed out that the authority relied on, the citation was not disclosed hence the Court was unable to peruse the same. Also the injuries sustained by the Plaintiff in that case were not disclosed to enable the Court make a comparison.

21. The Respondent finally submitted that this Court makes its determination based on the submissions filed by the Appellant in Mavoko CMCC No. 748 of 2012.

Determination 22The Court has considered the evidence on record submissions and the appeal and finds the only issue on appeal is that the award of quantum, the award of damages was too low.

Liability 23The issue of liability was settled by the Trial Court on the basis of the following;a.The Plaintiff/Appellant testified that on 1/2/2011while in the course of employment refilling a tanker, he was pushed to the ground by the pressure from the pipe and sustained injuries on the neck and back- compressed cervical spine fracture C3 & C4. He was admitted at Kenyatta National Hospital (KNH) for 7 days and medical records were produced to confirm treatment.b.The Plaintiff produced Employer/Defendant Company Doshi/Wiba 4 Form duly filled by the Defendant Company.c.The Defendant failed to tender any evidence to controvert the Plaintiff’s claim in line with Court of Appeal case Edward Mariga Thro Stanley Mariga vs Nathaniel D.Schulter Civil Appeal 23 of 1997 where the Court observed;In this matter apart from filing statement of Defense, the Defendant did not adduce any evidence in support of the assertions therein. The Evidence of the 1st Plaintiff remain uncontroverted and the statement of Defense remains a mere allegation…..Sections 107 & 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.

Quantum 24The Appellant ‘s claim is that the Trial Court failed to consider the authorities cited in award of damages for pain and suffering.The Judgment of the Court delivered on 9/9/2015 made reference to the case-law as follows;a.George Otieno vs AG & Anor where the Plaintiff was awarded Ksh 900,000/- for similar injuries was not relied upon as no citation was provided.( by Plaintiff) until in the present submissions on appeal.b.Tito Sekeni vsJohn Kanyili & AnorHCCC No 245 of 1992 MSA & Michael Okiya Bwonya Samuel vs Kenya Airways Ltd HCCC2501 of 1990 unreported (by Defendant) the Plaintiffs were awarded Ksh 150,000/- and taking into account the age of these cases and inflationary trends the Trial Court awarded Ksh 300,000/- general damages and Ksh 2000/ special damages interest and costs.c.A Medical Report by an examining doctor other than the treatment doctor would have shed lit on the diagnosis of future implants on the Appellants health due to the injury whether completely healed or his movement or activity was adversely affected or there was permanent disability. These factors would have illuminated on quantum.

Disposition 251. From the above outline I find that the issue raised on appeal that the Trial Court failed to consider authorities cited and hence awarded very low general damages is not borne out by the Trial Court record specifically written submissions by the Plaintiff/Applicant.2. The appeal is dismissed Trial Court judgment of 9/9/2015 is upheld.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14THJULY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE