[2011] KEHC 4247 (KLR)

Editorial Summary

1. Civil Appeal

2. Subject of Main Subordinate Court Case

WORK PLACE ACCIDENT

2. 1 Employer/employee

2. 2 Female adult aged 41 years old in 2004

2. 3 General field work

2. 4 Sustained injury whist picking avocados

2. 5 Wound on injuries to small finger left hand.

2. 6 Medical report G.K Karaiya MBCH Thika

Cut wound on 5th finger left hand measuring 3x1 cm.

Complete healing no disability.

2. 7 Trial magistrate on 27th July 2007.

Judgment for plaintiff/respondent

Liability

.70% against employer appellant

30% against employee respondent

Quantum

General Damages

Pain and Suffering Ksh.70,000/=

Less 30%

Contribution Ksh.49,000/=

Special damages

Medical report Ksh.1,000/=

Total Ks.50,000/=

2. 8 Gatundu court burnt

2. 9 Re constituted file

3. Appeal

a) Filed 21st March 2007

b) Dated 19th March 2007

c) Decision 27th February 2007

d) Appeal on grounds

i) No negligence on part of defendant proved.

ii) Documents Ex. 2 put in. Possible forgery –not taken into account

iii) Award excessive

iv) Prayed to set aside judgement and dismiss suitwith costs.

4. In reply:

i)Respondent had proved she worked for appeallant.

ii)She was injured in course of employment and a breach of contract

iii)Forgery not significant

5. Case Law (subordinate court)

a) Wilson Nyanyu Musinisi

– Vs -

Sasini Tea & Cofee Ltd

Kericho CA 15/2003

Kimaru J

b) Eastern Produce (K) Ltd

Vs

James Kipketer Ngetich

Eldoret CA 85/02

Gacheche J

c) Nicholas Kobia Thro’ Agata Kanampiu

Vs

Overseas Trading Company

Nairobi CA 5832/90

Mwera J

d) Raphael Mwaniki Kiboi

Vs

Joseph Njogu Kinyua

Nairobi CA 3974

Ringera J

e) Employment Law by Malcom Sargent

Pearson Education Ltd 2001

6. Advocates:

i) J.A. Okore instructed by kairu & McCourt & Co advocates for the appellant/original defendant

ii) P. Kangethe instructed by Ndungu Mwaura & Co Advocates for the respondent/original plaintiff

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 195 OF 2007

KAKUZI LIMITED.......................APPELLANT/ORIGINAL DEFENDANT

VERSUS

LUCY WANJIRU KIGORO..............RESPONDENT/ORIGINAL PLAINTIFF

(Being an appeal from the Judgment of Hon. A. Lorot Esq Resident Magistrate in Civil Case No. 23 of 2005

dated 27th day of February at Gatundu)

J U D G M E N T

I.INTRODUCTION

1. The original subordinate court case herein concerns a workplace accident on a horticultural farm. The relationship between the parties is one of employer /employee.

2. On the 6th April 2004, the employee, Lucy Wanjiru Kigoro a female adult aged 41 years old engaged as a general field worker alleged that she picked avocadoes from a tree. As she came down the tree, she sustained injury to her hand:

“I was cut on the hand when I was climbing down. I sustained a cut. It was about 11. 00 am. I was cut on the right hand.”

3. She then filed suit at the Law Courts Gatundu on 17th January 2005. The case was heard and concluded on the 27th July 2007. (Two years later). The Law Courts at Gatungu burnt down including all the records being destroyed.

4. By an application of Notice of Motion 18th March 2010 before the Magistrates Court, the employer applied for the reconstruction of the file. This was done and an appeal duly filed earlier on 21st March 2007 against the order of 27th July 2007, could now be dealt with.

5. This may explain the delay of disposing of this appeal.

II BACKGROUND

6. The employer denied in the subordinate court that they were negligent in any way to occasion injury to the employee. They denied that the workplace was not safe and that they required to provide gloves for the employee to work

7. In evidence they claimed to establish that the documents produced by the employee may have been a forgery.

8. The employee claimed she was cut on her right hand and was duly treated for injuries sustained.

9. The employer was of the view that the employee would have immediately gone to the dispensary for treatment. The dispensary was run by DW1, a clinical officer who produced his records and confirmed that the employee never reported to him for treatment. That the document to produce to court being the treatment form No. 516/5 was never part of the company’s records. The serial number of the receipts produced were No. 13480 – 13479. At no time was the employee’s name on the register.

10. The trial magistrate gave the employee the benefit of doubt and stated that the employee contributed to the injury and was not cautious enough as she went down the tree. He assessed her contribution at 30% and that of the employer at 70% as being liable for the said accident.

11. The trial magistrate was aware that the plaint pleaded injuries to the left hand, small finger. This was described as a cut wound on the fifth finger left hand measuring 3 x1cm according to the doctor.

12. There was no disability. The healing was complete.

13. For the said cut, the trial magistrate awarded Kshs.70,000 as general damages.

Pain and Suffering Kshs. 70,000/=

Less 30% Kshs. 21,000/=

Total Kshs. 49,000/=

Special damages

Medical Report Ksh. 1,000/=

Grand total Kshs. 50,000/=

==========

14. Being aggrieved at this award and judgment, the employer filed appeal.

IIIAPPEAL

15. In the memorandum of appeal the employer prayed for the judgment to be put aside and the suit dismissed in their favor together with tests. The reasons being:

i)That from the evidence before court no negligence had been proved against them.

ii)That the document Exhibit.2 produced by the employee was in fact a forgery and a fake. This document was to prove that the employee attended the employer’s clinic but was not the company’s document.

iii) That the award given by the trial magistrate was excessive.

16. In reply the employee through her advocate stated that the respondents had proved she worked for the appellant. That she sustained injuries in the course of her employment which injuries amounted to a lack of contract.

17. The employee informed this court that the issue of forgery of a document was insignificant to the case. The employee asked the decision of the final court to be upheld.

III OPINION

18. It is an implied duty for any employer in a contact of employment to take “all reasonable steps to provide and maintain a safe report work so as not to expose an employee to unnecessary risk of injury.” Employment Law by Malcom Sargent Page 90 and 91 2001 edition.

19. The duty of care has been listed in the case law of

Wilson and Clyde Coal Co Ltd

V

English

(1938)AC 57

Where Lord Thankerton stated:

“If the master retains control, he has a duty to see that his servants do not suffer through his personal negligence, such as

1) Failure to provide proper and suitable plant, if he knows or ought to have known of such failure.

2) Failure to select fit and competent servants

3) Failure to prove a proper and safe system of working aid

4) Failure to observe statutory regulations.”

20. If on the other hand an employee is negligent or careless the employer is not held liable.

21. The employee is under an obligation to inform the employer or any other person of any work situation which might present a serious and imminent danger to health and safety. (Employment Law [supra])

22. In this case the employee stated she climbed a tree and received a cut on her right hand. The pleadings and doctors report speak of the left hand little finger. If per chance the employee did receive a cut in the course of employment, she required to show that coming down the tree she either slipped, fell or some form of negligence that would have caused her injury. She just stated she climbed down the tree and got a cut on her right hand. She informed the doctor that she was pricked or cut by a dry twig.

23. The issue here was she ever injured? In the case law of

Eastern Produce (K) Ltd

Vs

James Kipngetich

Eldoret CA 85/02

Gacheche J

The Hon. Judge was of the opinion where a worker is injured and they fail to immediately report to their superiors and produce treatment notes, initially from the clinic, they should not be given any award nor should the employer be held liable.

24. The trial magistrate in this case acknowledged the document produced by the employer was suspect.

“[the document] has been disowned and seriously of Ogutu [DW1]. I find that the same is likely a forgery of a false document. However, a careful look at PEXH 1 and DEXH show that it is a lower section of the treatment note. On a balance of probabilities, I find that the plaint’s case is strange and can withstand the serious challenge of the defense.”

25. It was on the above reasoning that the trial magistrate found the employee had proved their case. The trial magistrate further based this on the grounds that the plaintiff employee “said she slipped and was pierced by a stem”

26. Unfortunately there was no evidence to this effect given by the employee on record.

27. I am of the opinion that the Hon. Trial Magistrate erred in his findings to come to the conclusion that he did. That this appeal must succeed. The judgment of the Hon. Magistrate is set aside. The judgment is to read that the suit in the subordinate court against the employer is dismissed.

28. There will be costs to the employer appellant in the subordinate court case and costs to the employer appellant in this appeal to be paid by the respondent employee.

DATED THIS 1ST DAY OF NOVEMBER 2011 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i) J.A. Okore instructed by kairu & McCourt & Co advocates for the appellant/original defendant

ii) P. Kangethe instructed by Ndungu Mwaura & Co Advocates for the respondent/original plaintiff