[2022] KEHC 14617 (KLR)

Hussein Builders Limited v Kyova & another (Suing as legal representatives of the estate of Hastings Muendo Nzive – Deceased) (Civil Appeal 625 of 2019) [2022] KEHC 14617 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14617 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 625 of 2019

DO Chepkwony, J

October 7, 2022

Between

Hussein Builders Limited

Appellant

and

Joseph Nzive Kyova

1st Respondent

Juliana Syombua Nzive

2nd Respondent

Suing as legal representatives of the estate of Hastings Muendo Nzive – Deceased

(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Nairobi (Hon. D. Ocharo-SRM) delivered on the 5th day of February 2019 in Nairobi Chief Magistrate’s Civil Case No.4661 of 2016)

Ruling

Background 1. By a Plaint dated July 19, 2016 and filed on even date, the Respondents suing as legal representatives of the estate of Hastings Muendo Nzive (deceased) sought for general damages both under the Law Reform Act and Fatal Accident Act, special damages plus costs of the suit and interest.

2. It was pleaded in the Plaint that on or about February 11, 2013, (the deceased) Hastings Muendo Nzive, sustained serious deep cut injuries on his left shoulder in the course of his employment. The deceased and his colleagues were carrying a glass window pane which fell on the deceased’s right shoulder hence causing him the injuries. The deceased then succumbed to the injuries on July 24, 2013 while undergoing treatment at Kenyatta National Hospital.

3. The Respondents attributed negligence and breach of statutory duty of care on the Appellant, a result of which the deceased sustained serious injuries which he succumbed to and his estate has suffered loss and damages in the result.

4. The Respondents alleged to have spent Kshs 126,000/= for the medications, funeral arrangements and obtaining Letters of Administration Ad Litem. In support of their case, the Respondent called one witness who testified that the deceased was involved in an accident on February 11, 2013. That he was treated at Avenue Clinic, Mbagathi Hospital and Kenyatta National Hospital before he met his death. On the other hand, the Appellant did not call any witness to testify in support of its case.

5. After hearing the matter and considering the evidence adduced, the trial court delivered its Judgment on February 5, 2019 in favour of the Respondents awarding them Kshs 2,346,000/= plus costs and interest of the suit. Aggrieved by that decision, the Appellant has approached this court seeking the same to be set aside.

The Appeal 6. On being dissatisfied with the Judgment by the trial court, the Appellant, Hussein Builders Limited, preferred the present appeal vide a Memorandum of Appeal dated October 29, 2019 setting forth the following Grounds of Appeal:-a.The learned trial Magistrate erred in law and in fact in awarding an excessive amount in general damages of Kshs 2,346,630/= plus costs and interest which was not commensurate to the claim or what was proved.b.The learned trial Magistrate erred in law and in fact in his analysis of evidence and the law applicable thereby making wrong conclusions and deductions as pertains to general damages awarded in the case.c.The learned trial Magistrate erred in law and in fact in failing to look at the evidence on record in totality and critically and therefore ended up at the wrong conclusion in terms of liability and quantum of damages awardable.d.The learned trial Magistrate totally misapprehended the facts of the case leading to erroneous application of the facts into law.

7. On September 27, 2021, directions were issued that the appeal be canvassed by way of written submissions. The Appellant filed their written submission dated October 22, 2021 while the Respondents are dated November 8, 2021.

Appellant’s Submissions 8. According to the Appellant, several issues arise for determination being:-a.Whether the Respondents proved their case against the Appellant to the required standard;b.Whether the uncontroverted evidence of the Respondents out-rightly placed liability on the part of the Appellant; and,c.Whether the deceased died due to the Appellant’s negligence.

9. On the first issue of whether the Respondents proved their case against the Appellant to the required standard, the Appellant submitted that it is trite in law that ‘he who alleges must prove’ and reliance was placed on the provision of Section 107 of the Evidence Act, Cap 80 Laws of Kenya. In seeking to show that the standard was not met, the Appellant argued that the Respondents merely testified that the deceased sustained serious deep cut injuries to his left shoulder while carrying a glass window pane in the course of employment for which he later succumbed to the injuries. That the claim against the Appellant being premised on grounds of negligence and breach of contractual obligations, it would not be enough to plead particulars of negligence or breach of contractual duties. One ought to prove the same to the standard on a balance of probabilities. In support of that position, reliance was placed on the case of Statpack Industries –vs- James Mbithi Munyao [2005]eKLR.

10. The Appellant alleged that in its defence it denied the existence of any contract of employment between itself and the deceased from which the alleged obligations would arise. That in any event, the Respondents did not demonstrate the nature of the contractual or statutory duties that the Appellant was subject to and which had been breached. The Appellant added that the learned Magistrate also did not make a finding as to the alleged breach of contract or statutory duty.

11. It was further submitted that nothing was adduced to demonstrate how unsafe the place of work was or that the type of work the deceased was involved in was one which he was fully in control of and did not require any specialized supervision.

12. On the second issue of whether the uncontroverted evidence of the Respondent our-rightly placed liability on the part of the Appellant, the Appellant submitted that the learned Magistrate was wrong to conclude that the Appellant’s failure to challenge the Respondent’s evidence by not calling any witness to adduce evidence out rightly placed liability on the Appellant. In the Appellant’s view, the Respondents were duty bound to establish the alleged negligence and breach of duty but failed to do so. Thus the Respondents failed to prove their claim to the required standard and the absence of evidence in rebuttal did not in any way lessen the burden of prove. In support of this position, the Appellant cited the case of Kenya Power and Lighting Company Limited –vs- Nathan Karanja Gachoka & Another [2016] eKLR.

13. With regard to the third issue on whether the deceased died due to the Appellant’s negligence, it was submitted that the crux of the Respondents’ case was that the deceased died as a result of the shoulder injury inflicted on February 11, 2013 and such injury was as a result of the Appellant’s negligence but succumbed to the injuries on July 6, 2013.

14. Although it was submitted that all this time the deceased was admitted in hospital, the Appellant submitted that the cause of the deceased’s admission at Kenyatta National Hospital had no relation with the alleged shoulder injury as it was evidently clear from exhibit No 2 as produced by the Respondents which indicated that when the deceased was admitted at Kenyatta National Hospital, his health complaints at the time were listed as difficulty in breathing, cough and night sweats. The deceased’s Death Certificate No xxxx, which was produced as exhibit 8 collaborated the health complications the deceased had before his demise and none of them was indicated or stated to be injuries sustained whilst in the course of employment.

15. The Appellant submitted that from the documentary evidence adduced before the trial court, the deceased did not die from the alleged Appellant’s negligence and no evidence was adduced in court that directly or indirectly attributed the cause of the deceased’s death as the alleged injury sustained on February 11, 2013. Thus the Appellant urged the court to find that the Respondents had not proved their case to the required standard given that the death of the deceased had no relation to injury allegedly sustained.

Respondent’s Submissions 16. The Respondents’ on their part filed submissions dated November 8, 2021, which are in support of the Judgment by the trial court and asked the Honourable Court to uphold the Judgment of the trial court delivered on February 5, 2019. They submitted that the Judgment was decided on evidence on record as adduced by the Respondent and that the submissions by the Appellant do not disclose any triable issues which would lead to this court disturbing the award made by the trial court.

17. The Respondent urged that the Appellant had the opportunity to testify or call evidence during the hearing to show how the deceased sustained serious deep cut injuries to his shoulder which led to his death after 5 months and 13 days, but it failed to call any witness to challenge or contradict the Respondents’ evidence. That the only evidence on record being the Respondents’ evidence, the lack of evidence from the Appellant left the trial court with no choice but to consider the Respondents’ evidence as uncontroverted.

18. On whether the case against the Appellant was proved to the required standard, the Respondents reiterated that the deceased died as a result of serious deep cut wounds on the shoulder sustained in the cause of his employment as he was carrying glass pane with his colleagues. Dr Njiru SK confirmed that the wound was a deep cut and the deceased remained in great pain. It is argued that the deceased required specialized treatment which was never provided by the Appellant. He was instead to resume for duty in five days but was unable to perform on even light duties. That the deceased was admitted for the same injuries but never recovered from the injuries sustained. According to the Respondents, the deceased continued ailing after sustaining the injuries until his death on July 24, 2013. The cause of his death was shown to be as Cardiopulmonary P TB/REV and a connection of the injuries to the deceased’s death cannot be outlawed without an explanation by a qualified doctor.

19. The Respondents further submitted that they pleaded special damages of Kshs 126,630/= and only produced receipts for medical bills of Kshs 19,630/=. The other claim on special damages was not proved by production of receipts but the story was that the deceased died at Kenyatta National Hospital, his body was transported to his rural home for burial and the expenses incurred were coffin expenses, flowers, clothing and other funeral expenses adding up to a total of Kshs 126,630/=. In seeking the court to award these expenses even without receipts, the Respondents relied on the case of Jane Katumbu Mwanzia –vs- Republic, Nairobi HCCC No 3177 of 1997, where the court awarded expenses in the absence of some receipts for the funeral expenses. All in all, the Respondents asked the court to uphold the award by the trial court on special damages.

20. The Respondents also submitted that the deceased used to earn Kshs 15,000/= per month and no evidence was introduced to controvert the same. However, the Appellant had sought the trial court to adopt the minimum wage under the regulations as per the year the deceased dies which was Kshs 8,579/-. That the deceased died at the age of 28 years and had 32 more years to work before retiring at the age of 60 years. In support of its case, the Respondent relied on the case of Intercheme EA Ltd –vs- Nakuru Veterinary Centre NBI HCCC No 1243 of 2000, where the court had the following to say:-'Where no witness is called on behalf of the Defendant the evidence rendered on behalf of the Plaintiff is uncontroverted'.

21. In the Respondent’s view, the appeal does not raise any triable issues for this court to disturb the Judgment by the trial Magistrate and urged the court to dismiss the same with costs to the Respondents.

Analysis and Determination 22. Upon reading through the grounds in the Memorandum of Appeal, I have considered the pleadings, the submissions by the parties and authorities relied on and I am of the humble opinion that there are two issues arising for determination, that is:-a.Whether the Respondents proved their case on liability on balance of probability; and,b.Whether the quantum awarded was inordinately high as alleged.

23. This being the first appellate court, this Honourable court has an obligation to evaluate the evidence submitted before the trial court afresh before drawing its own conclusions. This was the position stated by the court in the case of Selle & Another –vs- Associated Motor Boat Co Ltd & Others [1968]EA 123, in the following terms:-'The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily ot follow the trial Judge’s findings of fact if it appears either that he has clearly failed to 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.'

24. It then follows that this court is under a duty to delve into the actual details and revisit the facts as presented before the trial court at length, analyze the same, evaluate them and arrive at its own conclusions, while always remembering, and giving allowance for it, that the trial court had the advantage of hearing and observing the demeanour of the witnesses.

25. Nonetheless, the record reflects that Josephat Nzive Kyova, testified as PW1 and started by informing the court that he is the father of the deceased, Hastings Muendo. That on February 11, 2013 the deceased was injured by a piece of glass pane which he was carrying. That the deceased was treated at Avenue Clinic, discharged and he resumed duties at the Appellant’s Company but was unable to perform the duties due to the pain which was unceasing. That he then took the deceased to Mbagathi Hospital where he was admitted for 8 days before he was referred to Kenyatta National Hospital on July 6, 2013, where he was also admitted until he met his death on July 24, 2013. The Appellant did not call any witness to testify before the trial court despite indicating that it would be calling a number of witnesses including an expert witness who never showed up.

26. With regard to the issue of whether liability was proved against the Appellant, it is the Appellant’s submission that the trial court erred by relying on the Respondents’ uncorroborated and hearsay testimony and proceeding to find on liability had been proved by the failure had been proved of the Appellant to call any witness to testify on its behalf. On the part of the Respondent. It was maintained that the deceased sustained injuries in an accident while in the course of his employment and blamed the Appellant for negligence and breach of duty of care. According to PW1, the deceased succumbed to those injuries while undergoing treatment at Kenyatta National Hospital. The Respondents urged the court to as well consider its case as uncontroverted by the failure by the Appellant to call any witness to controvert the Respondents’ case.

27. I have read through the learned trial Magistrate’s Judgment, and find that he made the following observation on liability:-'Since the Defendant did not adduce evidence, the Plaintiffs evidence stands uncontroverted'He went further to quote the case of Intercheme EA Ltd –vs- Nakuru Veterinary Centre, NBI HCC No 1243 of 2000, where Mbaluto, rendered himself thus:-'Where no witness is called on behalf of the Defendant the evidence tendered on behalf of the Plaintiff is uncontroverted.'

28. The court took a similar position in the case ofEdward Muringa –vs- Nathaniel D Schulter, civil Appeal NO 23 of 1997, where the court observed as follows:-'In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the first Plaintiff and that of the witnesses remain uncontroverted and the statement in the defence therefore remains allegations. Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support by way of evidence. The liability of an employer towards his employee attaches once an employee is injured in the course of employment as a result of failure to ensure the duty of case expected from the employer. The Plaintiff’s evidence has not been controverted by the Defendant. In the premises, I find and hold the Defendant liable at 100%'.

29. The position is similar in the present case and it is not denied that the Appellant closed its case without calling any witness to support its case although it had indicated that it would call an expert witness. Therefore, this Honourable court as well holds the view that in the absence of any evidence to the contrary, the Plaintiffs’/Respondents’ evidence remains uncontroverted and proof that the Respondents established their case on a balance of probabilities. However, that alone is not enough to establish liability as against the Appellant. Evidence must be called to buttress the particulars of negligence as pleaded. It was not denied that the deceased sustained the injuries at his place of work with the Appellant.

30. This court is also alive to the fact that the law imposes a statutory obligation upon employers to ensure safety of all employees at the work place. Section 3 of the Occupational Safety and Health Act, (Cap 514 of the Laws of Kenya) provides as follows:-3. (1)This Act shall apply to all workplaces where any person is at work, whether temporarily or permanently. (2) The purpose of this Act is to -(a)Secure the safety, health and welfare of persons at work; and (b) protect persons other than persons at work against risks to safety and health arising out of, or in connection with, the activities of persons at work

31. It therefore follows that the Appellant had a statutory duty to ensure safety of the deceased while at work but failed to provide the necessary measures for his safety hence his injuries.

32. The Court of Appeal in the case of Purity Wambui Muriithi –vs- Highlands Mineral Water Co Ltd [2015]eKLR stated that:-'Section 6(1) of the Occupational Safety and Health Act provides:-‘Every occupier (employer) shall ensure the safety, health and welfare at work of all persons working in this workplace’.

33. In the end, this court opines that the Appellant did not discharge its mandate to show that it provided the necessary safety as required of it by the law and it cannot be gain-said that the injuries sustained by the deceased were as a result of the Appellant’s breach of its duty of care. In the upshot, this court upholds the trial court’s finding on liability and dismisses the challenge on liability.

34. Now, moving to the issue of quantum of damages, the Appellant proposed a total sum of Kshs 676,532/=. On the other hand, the Respondent on pain and suffering stated that the Appellant relied on the case of Marieta K Kaleli –vs- Mistry Mulji Nareen Construction Co Ltd, Mombasa HCCC No 66 of 1997, where the deceased survived for 18 months 15 days before he died and was awarded Kshs 300,000/- for pain and suffering. In the present case, the trial court awarded Kshs 200,000/= for pain and suffering. I have taken note on the extensive injury inflicted on the deceased on February 11, 2013, stayed in pain and agony until July 24, 2013. He must have undergone severe pain and I wish not to interfere with the award of the trial court under this head.

35. On loss of expectation of life, the Respondents relied on the case ofGeorge Moga –vs- Nairobi Women’s Hospital & 3 Others[2015]eKLR, and stated that courts have been awarding a conventional figure of between Kshs 100,000/= to Kshs 150,000/= and asked this court to award the Respondent Kshs 100,000/= for loss of expectation of life. The trial court awarded the Respondent Kshs 100,000/= on loss of expectation of life. I agree with the award of the trial court as reasonable in the circumstances and uphold the same.

36. On loss of dependency, the Appellant urged the court to align with the reputable presumption that where there is no proof of income, the court will adopt the minimum wage provided in the regulations of wages and urged the court to adopt the applicable amount as of that time which is Kshs 8,579/= being the statutory minimum wage. The Respondent on the other hand submitted that the deceased used to earn Kshs 15,000/= and urged the court to decline the invitation that in the absence of proof of income, the court should use the statutory minimum wage. In this court’s view, the minimum wage for the caliber of work the deceased was doing ranges close to Kshs 15,000 per month and I do not doubt the court in adopting the same. I am also persuaded that the trial court was correct in adopting the dependency ratio of 1/3 given that the deceased had no dependants left and a multiplicand of 32 years taking into account the retirement age as 60 years. For that reason, I will not disturb the trial court’s award on loss of dependency.

37. Lastly, on the award of special damages, it is my observation that the Respondent was only able to prove a sum of Kshs 19,630/=. It should be noted that special damages must not only be specifically proven by production of receipts. The Respondent having proved a sum of Kshs 19,630/= and I am persuaded to award the same to the Respondents on the expenses incurred.

38. The Court of Appeal in the case of Bashir Ahmed Butt –vs- Uwais Ahmed Khan [1982]KAR set out the parameters under which an appellate court will interfere with an award in general damages when it held:-'An appellant court will not disturb an award for general damages unless it is so inordinately high or low as to represent an 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.'

39. The Court of Appeal in the case of Stanley Maore –vs- Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002[2004]eKLR, stated that:-'In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exact'.

40. In the upshot, upon considering the submissions made and authorities relied on by counsel of the parties, I am of the conclusion that the assessment by the trial court on liability and quantum save for the award of special damages which the trial court seems not to have awarded. I therefore award special damages in the sum of Kshs 19,630/=. The other prayers shall remain intact.

41. Thus, the appeal is declined and dismissed but with no orders to costs. Each party to bear its own.

It is hereby so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED A NAIROBI THIS …7TH… DAY OF …OCTOBER…, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Olunya counsel for AppellantM/S Odande counsel for RespondentCourt Assistant - Simon