[2023] KEHC 26892 (KLR)

Jumbo North (EA) Limited v Atabo (Civil Appeal 84 of 2017) [2023] KEHC 26892 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26892 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 84 of 2017

RN Nyakundi, J

December 14, 2023

Between

Jumbo North (EA) Limited

Appellant

and

Elijah Nyakundi Atabo

Respondent

Judgment

1. The respondent instituted a suit in the trial court vide a plaint dated 19th May 2016 seeking general and special damages as a result of injuries sustained on 8th December 2014. The Plaintiff therein claimed he was a tongsman under the employment of the defendant and on the material date he sustained injuries when he was hit by a hot metal rod which hit him as a result of a mechanical problem at the mill. He sustained the following injuries;i.Burn wounds on the left handii.Burn wounds on the right handiii.Burn wounds on the left leg.

2. The Plaintiff claimed special damages as follows;i.Medical report Kshs. 6,000/-ii.Treatment expenses Kshs. 900/-Total Kshs. 9,600/-

3. .Upon considering the evidence before the court, the trial court held that the defendant was negligent and awarded the plaintiff Kshs. 350,000/- in damages and special damages of Kshs. 6900 with costs. Being aggrieved by the judgment and decree, the appellant instituted the present appeal vide a memorandum of appeal dated 10th July 2017 premised on the following grounds;1. That the Learned Magistrate erred in law and fact in holding the Appellant herein 100% liable in negligence without considering the evidence tendered.2. That the learned trial magistrate erred in law and fact in failing to dismiss the Respondent's claim for want of proof.3. That the learned trial magistrate erred in law and in fact in failing to evaluate, consider and/ or take into account the evidence of DW1 hence an erroneous judgment.4. That the learned trial magistrate erred I law and fact in failing to evaluate, consider and determine all the issues raised in the pleadings and in the evidence, especially as to whether the Respondent was on duty that day and working as a tongs-man on the alleged date of the accident.5. That the learned trial magistrate erred in fact and in law in failing to find that there was duplicity of suits given that the Respondent sought compensation for similar injuries in both Eldoret CMCC No. 528 of 2016 and 526 of 2016. 6.That the learned trial magistrate erred in law and fact in failing to consider the evidence of PW2 who categorically stated that the injuries allegedly sustained by the Plaintiff on 8/12/14 in Eldoret CMCC 526 of 2016 were similar to the ones allegedly sustained on 21/5/2015 in Eldoret CMCC 528 of 2016. 7.That the learned magistrate erred in failing to consider and/ or take into account the submissions filed by the Appellant hence an erroneous judgment.8. That the learned trial magistrate erred in law and in fact in applying the wrong principles of law in assessment of damages hence an erroneous award.9. That the learned trial magistrate erred in law and in fact by proceeding to assess damages in the sum of Kshs. 356,900/= in favour of the Respondent which quantum was excessive in the circumstances and not supported by law or evidence.10. That the learned trial magistrate erred in law and in fact in failing to take into account the exhibits produced during the defence case to wit; the weekly wages payroll and attendance checklists.11. That the learned trial magistrate erred in law and in fact in failing to consider the provisions of Order 21 rule 4 of the Civil Procedure Rules.12. That the learned trial magistrate erred in law and in fact in failing to failing to consider and apply the provisions of the Evidence Act and in particular Section 107,108 and 109 thereof.13. That the learned trial magistrate erred in law and in fact in failing to hold that the Respondent had not proved his case on a balance of probability as expected by law.

4. The parties prosecuted the appeal by way of written submissions.

Appellant’s Submissions 5. The appellant’s case is that the trial court did not have jurisdiction to entertain the claim. Counsel cited the case of The owners of the Motor Vessel "Titian S" v Caltex Oil (Kenya) Ltd 1989 KLR 1 on jurisdiction and submitted that at the time of filing the suit, the legal regime governing work injury related claims was the Work injury Benefits Act, 2007 which was enacted in the year 2007 to replace the Workmen's Compensation Act, Cap 236. He cited sections 16 and 58 of the act and submitted that the forum for lodging claims such as the respondents’ is before the Director of Occupational Safety and Health Services as provided under Section 22 and 23 of the Act. Further, that by dint of the above provisions and in particular the provisions the jurisdiction of the Court to handle work injury claims is limited to appeals from the decision of the Director of Occupational Safety and Health Service and which appeals ought to be filed before the Employment and Labour Relations Court.

6. The appellant submitted that its position is further fortified by the Supreme Court decision in Petition no. 4 of 2019 which settled the dust as to the correct forum with regard to work injury claims by upholding the Court of Appeal decision that found Sections 4,16, 21(1), 23(1), 25 (land 3), 52 (1 and 2) and 58 (2) of the Work Injury Benefits Act, 2007 to be constitutional and proceeded to dismiss the Petition. Additionally, that , following the Supreme Court's decision the issue of whether or not this Court has jurisdiction to handle work injury matters was adequately addressed in the case of Jumbo North (E.A.) Limited v Wilder Wangira [20201 eKLR.

7The appellant urged that the trial court did not have jurisdiction to entertain the suit and the same ought to have been dismissed for want of jurisdiction.

8. On liability, the appellant submitted it is not disputed that the Respondent knew very well the job he undertook to perform and assumed the risks that came with it. Additionally, that itis not disputed that the Respondent was in control of the work he was doing . However, the question to be asked is whether the injuries the Respondent allegedly sustained can be attributable to the Appellant. Counsel relied on the case of Statpack IndustriesvJames Mbithi Munyao (2005) eKLR in submitting that the Respondent blamed the Appellant for the accident a fact which the Appellant refuted as it was the Appellant's case that the Respondent never worked as a tongsman in the roll mill section but worked in the cooling bed section which section was not operating on 8/12/2014 when the accident allegedly occurred. The appellant never received a report on the accident which position was re-emphasised by DW 1 and documentary evidence adduced to show that at the time of the alleged accident, the Respondent worked at the Cooling bed section where no report was made as to his injuries by the time was leaving work. Counsel maintained that the respondent never led any evidence to rebut this evidence either by adducing documentary evidence or calling eye witnesses to corroborate his evidence that he was injured while working as a tongsman on the alleged date.

9. The appellant submitted that the Respondent’s plaint gave specific particulars of breach of contract of employment and or negligence of the Appellant. But in his evidence before the trial magistrate, the Respondent did not show in what way the Appellant or its servants failed to take adequate precaution for the safety of the Respondent or any evidence of recklessness or carelessness on the part of the respondents or their servants or agents to sustain his claim. He urged that the court failed to take into account all the evidence adduced in totality which clearly demonstrated that the Respondent had not established a case against the Appellant.

10. The appellant faulted the trial courts award of quantum, terming them as excessive. It is the appellant’s case that the treatment notes from Wareng Medicare revealed two sets of injuries. Whereas the history presented indicated cut wounds on left hand and right-hand palm and swellings another part of the said document gave another set of injuries being burns on the right and left hand and right leg. In light of the conflicting injuries noted in the initial treatment notes and the Appellant's position that no injury was reported the appellant submitted that it goes without saying that he said injuries were not adequately proved and as such no award ought to have been made. Further, that the said injuries, going by the Respondent's own documents had healed without any incapacity. Counsel urged that the award made was excessive in any event given that such injuries had they been proved could not fetch general damages of more than Kshs. 100,000/= going by the prevailing awards as at 2017. The Appellant urged the court to dismiss the lower court suit with costs to the Appellant both in the lower court and the High Court.

Respondent’s Case 11. The respondent opposed the appeal and filed submissions dated 18th October 2023. He submitted that the prevailing judicial authority at the time when the case was filed was the High Court's decision in Petition No.185 of 2008 that declared Sections 4, 7(1), &(2), 10(4), 16, 21(21), 23(1), 25(1)&(3), 52(1)&(2) and 58(2) of the Work Injury Benefits Act to be in conflict with the provisions of the former constitution and consequently declared them, null and devoid of the status of law. Relying on the decision of justice Ogola in Tuma Nyamawi Ndungo & 5 Others vAttorney General; Mombasa Law Society (Interested Party) (2019) eKLR, the respondent urged that it is therefore postulated that courts should not strike out cases filed before the Supreme Court's decision on 3rd December 2019 for lack of jurisdiction. Litigants should not be punished for filing cases guided by the then prevailing decision of the High Court.

12. Counsel submitted that the appellant has attempted to downgrade the decisions of the High Court made on 22nd May 2008 and 3rd December 2009 as if the same had no legal effect. The Appellant's assertion is that as long as the decisions of the High Court were not followed up by subsequent legislative amendments the decisions are of no legal value. Nothing can be further from the truth. The High Court having pronounced itself on the law and declared sections of the new Act unconstitutional, it was incumbent upon the litigants to proceed to court and file cases in the usual manner until such time when the decision of the High Court was set aside. Submitting that the litigants were required to disregard the High Court's judgment and file cases before the Director of Occupational, Safety and Health Services is an affront to the decision of the court and such action would undermine the authority and dignity of the courts. The Appellant operates on the misguided notion that judge made law is bad law and that parliament ranks higher than courts in law making. In any event, there is no assertion that the office of the Director of Occupational, Safety and Health Services was operational at the time when the High Court had already declared the office unconstitutional. To suggest that the litigants could not access court yet the High Court had declared section 16 of the Act unconstitutional is to make mockery of the right to access justice enshrined in Article 48 of the Constitution and flies against the doctrine of legitimate expectation.

13. He urged that the Appellant's submission that only cases filed pre -WIBA are the ones which had legitimate expectation is misguided. Legitimate expectation also extends to the disputes filed between 22nd May 2008 and 17th November 2017 when the Court of Appeal overturned the High Court's judgment. As such litigants were of the view that the judge declared law was valid law in place then, they are entitled to successfully assert legitimate expectation to have their claims heard to conclusion before the courts where they had been lodged.

14. The respondent submitted that it is worth noting, the Appellant in their statement of defence filed on 6th July 2017 admitted to the jurisdiction of the trial court. The Respondent herein therefore had the legitimate expectation that his suit would be heard and determined by the judicial authority that he invoked. Counsel cited the case of Legal Resources Foundation Trust v Attorney general & 2 Others [2019] eKLR in support of this submission. Additionally, counsel urged that the doctrine of legitimate expectation is a well-established principle of fairness and he pleaded with the court to recognize it.

15. The respondent urged that trial magistrate rightly held that the Respondent had proved his case to on a balance of probability and as such entered judgment in his favour. The Appellant has not submitted any evidence of error that would necessitate the setting aside of the trial court's judgment. The failure by the Appellant to submit on the merits of this appeal points out to the fact that the same is misconceived, without basis and an abuse of the court process. Counsel urged the court to dismiss the appeal with costs to the respondent.

Analysis & Determination 16. Before embarking on the determination of the appeal, it is imperative to state the duties of this court as an appellate court. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

17. Upon considering the memorandum of appeal, record of appeal and submissions, the following issues arise for determination;1. Whether the trial court had jurisdiction to entertain the suit2. Whether the trial court erred in its finding on liability3. Whether the trial court erred in its award of damages

Whether the trial court had jurisdiction to entertain the suit 18. The Appellant’s case is that the trial court did not have jurisdiction to entertain the application as the forum for filing the suit is before the Director of Occupational health and Safety as per the provisions of sections 22 and 23 of the Work Injury benefits Act. This contention is based on the decision of the Supreme Court in Petition no. 4 of 2019: Law Society Of KenyavThe Attorney Generaland Anr (2019) eKLR. which was rendered on 3rd December 2019. The import of the decision was that the Court of Appeal decision which found sections 4,16,21(1), 23(1), 25(1),(3), 52(1),(2) and 58(2) of the Work Injury Benefits Act Constitutional.

19. The cause of action in the trial court arose on 8th December 2014 and the suit was filed on 20th May 2016 which, evidently, was before the date of the Supreme Court decision. It is my considered view that parties who had pending decisions before the courts during this period had a legitimate expectation that their suits were validly before the courts. I am persuaded by the findings of Justice Stephen Radido, where when faced with a similar situation in West Kenya Sugar CoLtd v Tito Lucheli Tangale[2021] eKLR he held as follows;“In the view of this Court, these litigants who filed their disputes with the Courts from 22 May 2008 to 3 December 2019 on the firm belief that the judge declared law was the valid law in place then, are entitled to successfully assert legitimate expectation in having the claims heard to a conclusion before the Courts where they had been lodged."

20. As at the time of institution of the suit, the High Court had rendered itself on the constitutionality of the Work Injury Benefits Act. Justice J.B Ojwang (as he then was) declared as being inconsistent with the provisions of the retired Constitution, Sections 4; 7(1) and (2); 10(4); 16; 21(1); 23(1); 25(1) and (3); 52(1) and (2); and 58(2) of WIBA. This position stayed in place until the Court of Appeal decision of 17th November 2017 which allowed the appeal only to the extent that it set aside the High Court’s orders declaring Sections 4, 16, 21 (1), 23(1), 25 (1) and (3), 52 (1) &(2) and 58(2) of the Act to be inconsistent with the former Constitution. Therefore, the prevailing law at the time of the institution of the suit was that the impugned articles were constitutional and the forum for the cause of action by the appellant was the trial court. In the premises, the trial court had jurisdiction to entertain the suit.

Whether The Trial Court Erred In Its Finding On Liability 21. It is not in dispute that the respondent was an employee of the appellant. In its defence, the plaintiff presented a weekly payroll which did not show the maker of the document or the amounts they were paid for the work done. The appellant also presented an attendance register which was on a plain paper and failed to show who the maker was. The appellant failed to produce the supervisor of the respondent who would have settled the veracity of the issues raised by the plaintiff conclusively. The appellant did not produce any evidence that its employees were given safety gear when at work and as such it is evident they were not adequately catered for. I have considered the evidence tendered in the trial court and the testimonies of the witnesses and I find no reason to interfere with the trial court’s findings on liability.

Whether The Trial Court Erred In Its Award Of Damages 22. The principles guiding an appellate court in determining whether to interfere with an award for damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;“An appellate court will not disturb an award for damages unless it is 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”.

23. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion."

24. It is trite law that when considering an award for damages, courts must consider comparable awards for similar injuries. In Shabani v City Council of Nairobi (1985) KLR 516 the Court of Appeal had the following to say regarding the paramount need for Courts to attempt to give comparable awards in like cases:There is no doubt that, some degree of uniformity must be sought in the award of damages and the best guide in this respect is…to have regard to recent award in comparable cases in the local courts.

25. The respondent sustained the following injuries;i.Burn wounds on the left handii.Burn wounds on the right handiii.Burn wounds on the left leg.

26. There is no dispute as to the injuries sustained as the medical reports were conclusive. In Adolf Lovelace George T/A Sullivan and Company 1971 v Peter Mwau Mulwa [2016] eKLR the court upheld the award of Kshs. 181,500/- for general damages where the respondent had sustained similar injuries as in the present appeal. In the case of Prime Steel Mills Ltd v Amos Kipkogei Sialo [2017] eKLR the court upheld an award of Kshs.180,000/ made to a plaintiff who had suffered burns on right leg, right hand and face which were termed as soft tissue injuries with no permanent incapacity. In Madhu Paper Kenya Limited v Ronald Ntebere Rangoli [2020] eKLR the court substituted an award of Kshs. 320,000/- with one of Kshs. 200,000/- for soft tissue injuries of a similar nature.

27. Upon considering the comparable authorities, authorities cited by the appellant and respondent, and taking into account the rate of inflation, I find no reason to disturb the award for general damages. The special damages are not contested and therefore there is no reason to delve into the award of the same.

38. In the premises, the appeal is dismissed with costs to the respondent. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 14THDAY OF DECEMBER 2023R. NYAKUNDIJUDGE