[2017] KEHC 1142 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CIVIL APPEAL NO.101 OF 2014

JOSEPH MULATI MAFUNGA................................APPELLANT

VERSUS

CHABHADIYA ENTERPRISES LTD....................RESPONDENT

JUDGEMENT

1. The Appellant Joseph Mulati Mafunga sued Chabhadiya Enterprise Ltd for general and special damages arising from an accident that occurred in the respondent’s factory on or about the 11th of February, 2012. the appellant claimed that, he was then lawfully working in the Crush Section of the factory.

2. The Appellant claimed further that the accident was occasioned by breach of implied terms of contract, to keep the place of work safe; to provide the Appellant with protective gear; in the alternative he cited negligence on the part of the respondent and / or its employees.

3. In his evidence the Appellant testified that he had worked for the respondent as a mechanic for 3 years before the accident and on the material day he had just finished repairing a Crush Machine and was going round checking on its bolts, when the machine operator without notice switched the machine on, when the machine bolted off pulling the appellant, throwing him down and as a result he got hurt on the right chest and on his finger. He initially went for treatment at Lugula and later at Bungoma hospital. The treatment cards, two medical reports and receipts were produced by consent of the parties.

4. The Appellant produced a worksheet as the only evidence to prove employment. The same was marked for identification but not produced.

5. On its part the defence did not adduce any evidence. In the statement of defence the respondent denied the alleged breach of contract or negligence attributed to it or its employees. It further denied that the Appellant was its Employee and that it had any contractual obligation towards him. In the alternative it attributed negligence on the Appellant.

6. The trial Court was of the view that the Appellant had failed on a balance of probabilities to prove that he was an Employee of the respondent as the worksheets relied upon as proof of employment were marked for identification but were not produced as evidence. It dismissed the suit.

7. The Appellant was aggrieved by the trial Court’s judgement and in preferring this appeal relied on the following grounds;

The trial Court erred in dismissing the appellant’s claim on a technicality

The trial Court set a higher standard of proof thus occasioning a miscarriage of justice.

The trial Court erred by not appreciating that the testimony of the Appellant was not challenged.

The trial Court did not consider the submissions of the Appellant.

The trial Court erred in failing to consider 50% concession made by the respondent in its submission.

8. This is the first Appellant Court and it is tasked to consider the pleadings and evidence afresh in order to arrive at an independent decision See Selle Vs Association Motor boat Company Limited (1968) E.A at 123.

The issues for consideration are:

1. Whether or not the Appellant was an Employee of the respondent.

2. Whether or not he was injured

3. Who was to blame for the industrial accident

4. Are damages payable if so how much

5. Costs.

9. The Appellant asserted that the injuries were sustained while he worked as an Employee of the respondent. He had marked for identification worksheets but the same was not produced as exhibit. This was an unfortunate omission on the part of Counsel for the Appellant. However as argued by the Appellant’s Counsel there is an acknowledgement of the Appellant’s status and an admission in the respondent’s doctor’s report where the Appellant is referred to as a former Employee of the respondent and the place of injury indicated to have been the respondents factory at crushing Section. Furthermore his medical notes from Bungoma District hospital make reference to the injuries sustained at the place of work.

10. I am satisfied on my part that in the absence of any evidence to the contrary and on the face of the documents produced by consent of the Parties that the Appellant proved on a balance of probability that he was indeed an Employee of the respondent.

11. I hold further that the Appellant did prove as well that he sustained injury while at his work place.

12. However the Appellant knowing that he worked at a dangerous Section of the factory, he failed to show the precautionary measures he took for his own safety and so as to avert any likely injuries. I find this to be a case of contributory negligence. On the part of the respondent, I find that it did not provide the appellant with the necessary protective gear and a safe environment.

Secondly its employee the machine operator was negligent for starting the machine while the Appellant was standing next to it. I accordingly attribute 30% negligence on the part of the Appellant and 70% on the respondent.

13. The Appellant sustained the following injuries;

(i) injuries to the middle finger distal phalanx and a cut wound

(ii) blunt injury to the chest

(iii) cut wound right shin medially mid one third.

At the time of the second examination on 24/4/2014 the Appellant had healed. The injuries were described as moderately severe soft tissue.

In Shaliman flowers Ltd Vs Noah Mumango Mahanyi HCA No.175 of 2008 (NKU) Wendoh J on 25/3/2011 awarded Kshs.50,000/- where injuries sustained were deep cut on the left wrist, soft tissue to left joint and blunt injury to the chest. In Mumias Sugar Company Limited Versus Benea O. Mulambanyi Civil Appeal No.24 of 2012 (Kakamega) where the Appellant had sustained blunt injury to the chest, blunt injury to the head and severe pain incurred during injury, The Court awarded 70,000/- for general damages on 11th of June, 2015.

14. Considering the injuries sustained by the Appellant I find the award of kshs.150,000/- assessed by the trial Court to have been on the higher side. I will make an award of Kshs.80,000/- for general damages.

15. The upshot is that the appeal succeeds on the following terms;

1. General damages Kshs.80,000/-

2. Specials Kshs. 5300/-

Kshs.85,300/-

Less 30% contribution Kshs.25,590/-

Total payable Kshs.59,710/-

3. Costs to the Appellant

DATED and DELIVERED at BUNGOMA this 12th day of October, 2017

ALI-ARONI

JUDGE