[2004] KEHC 1571 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO.1176 OF 2000

JAMES KURIA IRUNGU ……………………………. PLAINTIFF

VERSUS

MURANGA TIMBER LIMITED ……………………. DEFENDANT

JUDGMENT

James Kuria Irungu was on the 24. 2.00 at a factory owned by the defendant M/s Muranga Timber Ltd. Whilst there, he was operating a machine when his hand went into the machine and he received serious injuries.

He sued the defendants in tort and prayed only that he be compensated for General Damages for pain and suffering. The defendants entered appearance and filed defence through their advocates M/s Waiganjo Gichuki of Muranga. A statement of defence was also duly filed whereby the defendant claimed that:-

The plaintiff had gone to the premises without the defendants authority; His intention was to try to make a private gain for himself; The use of the machines had been without authority from the defendant; Previously the plaintiff had worked on a circular raw and knew how to operate it.

The suit was fixed for hearing for 21. 4.04. The defendant failed to attend court. His advocates office was duly served with a hearing notice but the clerk refused to sign the documents. The trial proceeded for hearing on the court being satisfied that the hearing notice was indeed duly served. Order 9b r 3(a) CPR applies.

As the defendant was absent, only the version of the plaintiffs’ story was available. From the evidence before court, the plaintiff was ignorant whilst operating the saw machine. He does not describe himself as an employee in the plaint. Nonetheless, the result of operating the machine was that his middle figures were amputated.

Who is it to blame for the accident?

1) LIABILITY

The defendants did not attend court nor call a witness to dispute the claim that the plaintiff was illegally on the premises.

The plaintiff states he was on his course of working with the machine. There was no guard to the machine as required. His safety was required to be looked into.

I find that the plaintiff indeed sustained very severe injuries to his finger. I would find that liability be and is hereby set at 100%. I now turn to quantum.

2) QUANTUM

The advocate referred to me two case Law dealing with quantum.

i) Southern Engineering Co. Ltd.

V

Musingi Mutua (1982-1988) I KAR 878

whereby the respondent had operated an electrical saw which in the process cut off his fingers. The court gave a modest award of Ksh.160,000/-.

ii) Idi Ayub Omari Shabani & Another

v

City Council of Nairobi & Another

A young boy aged 8 years was knocked down by a lorry. The issue of a low award was discussed and to take inflation into account.

I find that the plaintiff herein had been examined by a medical doctor who came to court.

Dr. S.M. Kimuhu

MB ChB. M.Med (Paed)

Date of report 25. 903. 04

The doctor describes himself as a general practitioner, though it appears from his qualifications that he is a peadiatric.

He did indeed inform the court the plaintiffs sustained injuries to the 2nd, 3rd and 4th fingers of his left hand duly amputated by the machine.

He had a multiple cut wound on the 5th finger.

I would assess an award of Ksh.200,000/- for the said injuries.

As this was the only claim made I accordingly enter judgment for the plaintiff in the absence of any claim made, I award the costs to the applicant/plaintiff.

In Summary

1) Industrial accident

2) Male adult aged 31 years old in 2000

3) Electrical saw accidentally cut off left fingers

4) Injuries:-

a) Amputated left three fingers.

5) Liability: 100% against the d defendant

5) Quantum:

1) General Damages

Pain and suffering Ksh.200,000/-.

I award the cost of this suit to the plaintiff. I award interest from the date of this judgment.

Dated this 22nd day of April, 2004 at Nairobi.

M.A. ANG’AWA

JUDGE

Kinuthia Wandaka & Co. Advocate for the plaintiff

Waiganjo Gichuki & Co. Advocates for the defendant