[2014] KEHC 524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

CIVIL SUIT APPEAL NO. 99 OF 2005

GLOBAL APPARELS (EPZ) KENYA LTD..............APPELLANT

VERSUS

PETER KIMATHI NDOLO.................................RESPONDENT

{Being an Appeal from the whole of the judgment and decree of Hon. Mrs. Owino N.

principalMagistrate given on 3rd February 2005 at Nairobi in CMCC 7081 of 2004}

JUDGMENT

1. The Respondent/plaintiff hereinafter referred to as the Respondent sued the Appellant/ defendant hereinafter referred to as the Appellant for general damages for pain and loss of amenities for injuries sustained while in the course of his duties whilst the employment of the Appellant. The Respondent states in his plaint that on or about 15th May 2004 at about 10. 00 p.m. while in the course employment running the riveting machine his hand was crashed his right hand and he sustained serious injuries. He blamed the defendant for failing to honor the express and implied term of contract of providing him with a safe system of work and secure working environment and that the injuries he sustained injuries were due to the negligence of the Appellant which he particularized in his plaint.

2. The Appellant in its defense denied all particulars of negligence as attributed to it and further stated that the Respondent wholly and/or substantially contributed to the occurrence of the subject accident and also particularized the Respondent’s negligence .The Appellant denied that the plaintiff sustained the said injuries or suffered loss.

3. The Learned Trial Magistrate held that the Appellant had not challenged the Respondent’s evidence; that the Appellant did not adduce evidence that they refused to provide protective gears for the Respondent and further that the Respondent had a duty of care to ensure that he moves his hand away from the machine as soon as he noticed that it had stopped. She apportioned liability between the Respondent and Appellant at 80%:20%. She awarded the plaintiff general damages of Kshs. 80,000/-.

4. Aggrieved by the said decision the Appellant filed its Memorandum of Appeal dated 24th February 2005 raised the following grounds;

i. That the Honorable Magistrate erred in law in law and fact in entering judgment on quantum in favor of the plaintiff at Kshs. 80,000/- which sum is too much in excess as compared to the alleged minor injury involved.

ii. That the Honorable Magistrate erred in law and fact as the issue of liability is concerned by awarding 80% against the Appellant yet the undisputed evidence adduced proved that the Respondent never got injured in the course of his employment with the Appellant.

iii. That in the alternative the Honorable Magistrate erred in law in law and fact in failing to find the Respondent 100% liable to blame for doing an authorized job in an unconventional manner as detailed by the evidence adduced by the Appellant.

iv. That in the alternative the Honorable Magistrate erred in law and fact in failing to address herself to the inconsistencies in the respondent’s evidence on record.

v. That in the alternative the Honorable Magistrate erred in law and fact in failing to strictly analyze the evidence on record, the written submissions of the Appellant and the authorities relied thereon.

vi. That in the alternative the Honorable Magistrate erred in law and fact in failing to strictly analyze the evidence on record, the written submissions of the Appellant and the authorities relied thereon.

5. Parties proceeded with the appeal via written submission. The appellant’s submissions were mainly on liability and quantum. It was submitted that the Respondent had not had failed to produce the gate pass for 15th May 2004 when the alleged happened but instead produced one dated 17th February 2004; that the Respondent did not also produced the hospital attendance card besides the invoice; that the defence produce exhibit D2 which shows that the Respondent was not injured on the 15th of May 2004; that the Magistrate erred on relying on the invoice as medical prove that the Respondent was treated at River Medical Services yet no treatment note were produced at the hearing; that the Respondent was the author of his own misfortune as exhibit D2 shows that he was an ironer yet his testimony was that he was operating rivet machine; that apportioning liability at 80:20% was wrong as the Respondent was doing unauthorized job. On quantum it was submitted that the Doctor did not rely on any previous medical record but examined the respondent a month after the alleged injury. That in the Doctor’s opinion the said injury resulted in scars which are uncosmetic in the affected figure and therefore the award of Ksh.80,000/- was high, the appellant proposed a sum of Kshs, 30,000/-

6. The Respondent submitted that the Respondent’s testimony ties well with the pleading and the Appellants’ exhibit D2 which confirms that first aid was administered to the Respondent at the Appellant’s. On the issue of inconsistency of evidence it was submitted that the injury was reported and recorded in the Appellant’s book where all such injuries that took place in its premises/factory; that the evidence speaks for itself and the said accident took place on 6th May 2004 as alleged by the plaintiff and the same is supported by the medical records that showed the Respondent went for dressing on 17th and 19th May, 2004 and the same is consistent with the evidence before court. The Respondent urged this Court to dismiss the appeal with costs and hold that the Appellant was wholly liable for the accident and enhance the award to Kshs. 200,000/-. Counsel also submitted on the evidence adduced.

7. The Appellant in reply to the Respondent’s submissions argued that no evidence on record to prove that the Respondent sustained the said injuries on 15th May 2004; that the Respondent’s submissions that exhibit D2 confirms the injuries incorrect as the Respondent was not cross examined on the same nor did the learned Magistrate address herself on the same exhibit; that the injuries on exhibit D2 relate to a different cause of action which was recorded on the 6th of May 2004 yet the Respondent alleges he was injured on the 15th of May; that on the 6th of May the Respondent punched by a rivet machines on the right hand first figure whereas on the 15th it is alleged he sustained a penetrating prick on the right index finger; that the learned Magistrate did not consider the appellant evidence; that there was no evidence that the accident was recorded on the 17th of May 2004 and was reviewed on the 19th of May 2004, according to the Appellant this was new evidence being sneaked in into the matter at the appeal stage.

8. In response to this submission the Respondent reiterated earlier submissions and submitted that the Lower Court heard and saw the witnesses and chose to believe the Respondent and that the Respondent confirmed signing a book when he was injured during cross examination. That the allegation by the appellant that there was an accident on the 6th of May 2004 has no bases as evidence on records speaks for itself.

9. I have considered the submissions, the evidence adduced in the lower Court and in my view there are only two issues for determination is on liability and quantum. It was the Respondent’s evidence that he was injured on the 15th of May 2004 as he operated a machine and was injured on the fourth right finger. According to him the company doctor referred him to Athi River Medical Services and was he treated and given an invoice which he produced as exhibit 2. He produced a gate pass exhibit 3. I have looked at exhibit 3 and the entry date is 17th of February 2004. On being cross examined he stated that he had a gate pass but didn’t have it in court then. The Respondent was examined by Dr. Wandugu on the 17th of June 2004 a month later. It is the appellant’s submission and evidence that the Respondent was not injured on the 15th of May 2004 even though he was on duty. According to DW1 their record of 15th of May 2004 does not show that she saw the Respondent or that he was treated and that as per company police when a worker is injured the supervisor and the employee gets a gate pass and takes to her; she denied refusing to attend to the Respondent on the material day. There is a record exhibit D2 that shows that the Respondent was treated on the 17th of May 2004. The details of injury were punched by rivet machine on the right hand first finger. He was seen again on the 19th of May 2004 for dressing to be done. This record does not show the plaintiff was injured on the 15th May 2004. In the submission the appellant argues that the injuries of 17th of May 2004 related to an incident of 6th May 2004. There was no such evidence adduced by DW1 or DW2 that the injuries the Respondent sustained related an injury of 6th of May 2004. In my view I find that the injuries the Respondent filed suit for must have been for the one’s sustained on the 15th of May 2004 and that the learned Magistrate did not err in finding that the Respondent had proved his case on balance of probability. The Appellants being the employers of the Respondent had a greater duty of care that the machine the Respondent operated was in good working condition and that he had the right protective care as he performed his duties. I find that apportioning liability at 80:20% was appropriate. On quantum the learned M magistrate relied on the report of Dr. Wandungu who observed that the Respondent had a pierced wound on the distal phalanx of the right index finger. He noticed the following on medical examination; that the Respondent had a scar on the said finger, there was cell death at the base of the nail and a reduce power grasp in the right hand. On the date of hearing, the 25th of January 2005 there was no current report on the Respondent. I have considered the cases that were relied by the Respondent, the awards varied from Kshs. 50,000/- to Kshs.250,000/-. Comparing the Respondent’s case with the said cases I agree with the Appellant that the sum of Kshs.80,000/- was on the higher side, I therefore reduce the award on quantum to Kshs.40,000/-.

10. The appeal on liability fails and on quantum the award is set aside and replaced with an award of kshs.40,000/- as general damages. The Respondent shall have interest with costs of the trial court but each party shall meet its costs of this appeal.

Dated, signed and delivered this 3rd day of December2014.

R.E. OUGO

JUDGE

In the presence of:-

………………………………………...…..……….For the Appellant

…………………….……………………..…….. For the Respondent

………………………………………………….……………Court Clerk