[2024] KEHC 11797 (KLR)

Kaluku v Njoroline Consturction Company Limited & another (Civil Appeal E1015 of 2023) [2024] KEHC 11797 (KLR) (Civ) (4 October 2024) (Judgment)

Neutral citation: [2024] KEHC 11797 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E1015 of 2023

JM Nang'ea, J

October 4, 2024

Between

Musyoka Kaluku

Appellant

and

Njoroline Consturction Company Limited

1st Respondent

Mwangangi Kilile

2nd Respondent

(Being an Appeal from the Judgement of the Chief Magistrate’s court at Nairobi, Milimani Commercial Courts ( Hon. Wendy K. Micheni – CM) in CMCC NO. 6949 of 2016 delivered on 22. 9.2023)

Judgment

Grounds of appeal and reliefs sought. 1. The appeal before me is from the above trial court’s judgement by which the suit in the lower court was determined as follows:1. Liability: 50% {( contiributory negligence on the plaintiff ( read, the appellant): 50% ( on both the 2nd defendant and vicariously on the 1st defendant ( read, the 2nd and 1st respondents respectively) }.2. General damages for: pain and suffering : kshs. 1, 500, 000/=Diminished earning capacity : kshs. 500. 000/=Total less 50% contributory negligence ………….. kshs. 1,000,000/-3. Special damages ……………………………………...kshs. 2,000/=4. Interest on (2) and (3) above at court rates from the time of judgement and from the time of filing suit respectively , until payment in full .5. Costs of the suit shall be borne by the defendants’’. (sic)

2. Aggrieved by the judgement , the Appellant filed a Memorandum of Appeal on 29. 9.2023 upon two grounds as hereunder:-1. That the Learned Trial Magistrate erred by finding that the plaintiff contributed to the accident at all or to the extent of 50 % .And2. That the trial magistrate erred by making awards which are too low in the circumstances.

3. It is proposed to ask the court to set aside the trial court’s judgement and substitute it with;-a.‘’Liabiilty against the defendants at 100 %.b.Reassessment of the quantum of damages.c.Costs of the appeal. ‘’ (sic)

4. The court directed the appeal to be disposed of by written submissions and learned Counsel for the parties filed their respective submissions. This being a first appeal I am required to reconsider the evidence adduced, evaluate it and draw my own conclusions bearing in mind that I did not hear and see the witnesses who testified{ (see Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 }. The Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:”i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”

Background to the appeal 5. As gleaned from the above Grounds of Appeal, the appellant is challenging both the trial court’s judgement on liability and the quantum of general damages assessed. The suit in the lower court arises from an industrial accident that allegedly occurred on 29. 4.2015 at P.C.E.A Lang’ata Parish School when a wooden platform erected on the respondents’ construction site at the school and on which the appellant was standing while working as the respondents’ employee collapsed . The appellant complained of suffering bodily injuries as a consequence of the platform’s collapse which he attributed to the respondents’ and /or their agents’ negligence, hence the suit. He prayed for general damages for pain , suffering and loss of amenities; further general damages for future loss of earnings or diminished earning capacity; special damages of Kshs. 434, 676; the costs of the suit as well as interest.

6. It would appear that only the 1st respondent entered appearance and / or filed defence to the suit. It traversed all the material averments therein , putting the appellant to strict proof. The 1st respondent averred in the alternative that if it shown that the appellant was indeed working for it on the material date then it didn’t owe him any duty of care for the reason that he was working for the 2nd respondent who had a contract of service with it. The trial court was urged to dismiss the suit with costs.

7. The appellant underscored the averments in the suit in his oral evidence. He told the court that a ladder he was standing on as he worked fell causing him injuries he complained of. The ladder was made by other workers. The appellant was treated for his injuries at Kenyatta National Hospital for which hewas billed Kshs. 207,676 which he was unable to pay. He further told the court that he was a casual worker hired by the 1st respondent at the material time . According to the appellant the 2nd respondent was the 1st respondent’s Foreman under whom he worked. The 2nd respondent is said to have been paying the appellant Ksh 500 daily for his labour and the former didn’t provide him with a safety belt.

8. Based on the appellant’s evidence and a medical report by Dr. W.M Wokabi ( PW2) dated 20. 8.2015 , the appellant , aged 22 at the time, suffered a major back injury causing hemiparalysis of his lower limbs with very reduced power of grade 3 against the normal grade 5. X-Ray revealed a burst fracture of the 2nd lumbar vertebrae ( L2) . The appellant was further noted to have incontinence of urine necessitating insertion of a catheter to collect the urine. As a result of the leg injuries he could only walk with the support of crutches. He also suffered erectile disfunction which was likely to persist.

9. In the opinion of the doctor there was a slim chance of possible recovery of more strength in the legs after 6 to 8 months and suggested further review after that period for an updated prognosis.. The extent of permanent disability at the time of examination was 75%. On further examination of the appellant on 18. 7.2018 about 3 years later the same doctor found that the degree of permanent disability had reduced to 25%. According to the doctor there was no chance of further recovery beyond this.

10. The 1st respondent called its Director ( Ezekiel Mwangi Njoroge) . He tendered an agreement dated 17. 4.2015 he said governed casual work relationship between them which the witness referred to as ‘’ the sub-contract’’ they had executed with the 2nd respondent . The document shows the specific services the 2nd respondent was to offer and the agreed charges. The court was told that the 2nd respondent was in charge of workers he personally hired at the construction site to assist him , and as a sub-contractor he insured his employees. The witness conceded upon cross-examaination that the sub-contract between them and the appellant did not indicate that the 2nd respondent was to hire his own workers.

11. The 1st respondent’s other witness was Dr. George Kungu Mwaura who testified to examaining the appellant on 30. 7.2018. According to the doctor, the appellant was improving but he still had poor and weak erection which was, however, likely to get better in the future. The appellant’s degree of permanent disability at the time was 15%. He, however, conceded on cross-examination by the appellant’s advocate that his assessment could be on the lower side considering that was the first time he was seeing the patient.

12. The 2nd respondent did not testify having failed to enter appearance.

Analysis and determination 13. I have perused the record and considered the parties’ submissions in the lower court and in this appeal. As deduced from his submissions, the appellant has decided to abandon his appeal on quantum of damages and fully relies on his submissions filed in the lower court on the issue of liability for the claim. Regarding the issue of liability for occurrence of the accident, learned Counsel for the appellant submit that there was no basis for the 50%: 50% apportionment between the appellant on one hand and both respondents on the other. Relying on the case of Selle & Another v Associated Motor Boat Company Limited supra Counsel observes that as the beneficiary of the work it delegated to the 2nd respondent, the 1st respondent was liable for acts and omissions of its agent regardless of whether or not the delegate was an independent contractor. The appellant’s advocates further submitted that the defence of volenti non fit injuria is not valid in cases such as the instant one revolving around the tort of negligence ( see the case of Masinga Ndonga v Kualam Ltd being Nairobi HCCA NO. 29 of 2010 cited in the appellant’s submissions). Conversely, the 1st respondent contends that it owed no duty of care to the appellant as he was not its employee. The 1st respondent pitched tent inter alia on the judicial decisions in A.O Bayusuf & Sons Ltd v Swaleh Thoya IHA [2011] eKLR and Tipsy Wood Preservation Ltd v Tom Otieno Ochola [2018] eKLR in which a similar claim was dismissed for want of proof of employment relationship.

14. In the instant case it is common ground that the appellant suffered the injuries complained of . Unlike the situation in A.O Bayusuf & Sons Ltd and Tipsy Wood Preservation Ltd supra, the appellant herein insisted that he was the 1st respondent’s employee and that the 2nd respondent was merely the 1st respondent’s Foreman. The 1st respondent admits that it had a contract of service with the 2nd respondent and that the appellant was working under the 2nd respondent but for its benefit. It is also apparent that the 1st respondent was also a contractor on the consruction site in question but purportedly sub-contracted some services to the 2nd respondent.

15. The learned trial magistrate was satisfied that the 1st respondent was the appellant’s employer as the main contractor on site and who didn’t lay bare the full terms of its engagement with the 2nd respondent.

16. As per the Court of Appeal for East Africa case of Selle & Another v Associated Motor Boat Company Ltd supra , the 1st respondent is liable herein whether or not the 2nd respondent was an independent contractor or agent. In line with the principle of stare decis this decision supersedes the High Court cases relied upon by the 1st respondent which, in any event, are distingushable for the reason given. I accordingly agree with the trial court by finding and holding that the 1st respondent owed the duty of care to the appellant in the circumstances of this case.

17. Did the respondents breach the duty of care they owed to the appellant? The appellant laments that they negligently failed to provide him with a safe work environment leading to his injury in the course of employment. This case is almost on all fours with the case of Tipsy Wood Preservation Ltd alluded to above. The facts of that case are that the claimant was painting a house while standing on a ladder. The ladder broke up in the middle causing him to fall down and sustain injuries and triggering the suit he brought against the appellant in the matter.The appellate court noted that the claimant didn’t explain the circumstances surrounding the breaking and fall of the ladder. It was further observed that there was no evidence that the claimant was working from a dangerous height since the height of the wall the claimant was painting was not stated. In the premises the appellate court in that case found no basis for attributing liability on the appellant at 100%.

18. The 1st respondent made further reference to the case of Statpack Industries v James Mbithi Munyao [2005] eKLR in which it was posited that ‘’ an employer’s duty at common law is to take all reasonable steps to ensure the employee’s safety . But he cannot baby-sit an employee. He is not expected to watch over the employee constantly.’’

19. While apportioning liability equally between the appellant and the respondents, the learned trial magistrate observed that the appellant also needed ‘’ to take due care and skill over his safety during the pendency of his duties.’’

20. Indeed, the appellant has to shoulder some blame in the circumstances of this case. In my view, however, the respondents had a greater responsibility to ensure the appellant’s safety being his masters and further considering that no safety gear was provided to him. I would adjudge the appellant 30% liable with the 1st and 2nd respondents assuming the remainder 70 % responsibility for the claim , jointly and severally.

21. Turning to the claim for general damages for pain suffering and loss of amenities, it is trite law that such damages are damages at large and no case is exactly the same as the other. The general method of approach in assessing general damages ought to be ‘’ that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases ( see the often cited case of Kemro Africa Ltd & Another Lubia & Another [1982-88] KLR).

22. The appellant has abandoned the appeal on the quantum of damages awarded by the lower court as anoted hereinabove. On their part the 1st respondent’s advocates urged the court to be guided by the 1st respondent’s doctor’s assessment of the extent of the appellant’s permanent incapacity of 15% being the more recent assessment. It is suggested that Ksh. 500,000 is adequate under this head of damages, reference being made to case law in Gabriel Maina Mungai v Jane Wanjiku Mwaura [2019] eKLR and Peter Gakere Ndiangui v Sarah Wangari Maina [2021] eKLR. For head injury with loss of consciousness; fracture of the left clavicle bone ; cut wound to the head; soft tissue injury to the abdomen; termination of a 6 months pregnancy and permanent incapacity of 15% , the claimant therein was granted Ksh. 750,000 general damages for pain and suffering in the former case. In the latter case, the claimant sustained pelvic fractures; blunt injuries to the chest, head, buttocks, right thigh; head concussion and bruised right lung. The degree of permanent incapacity was assessed at 15%. Ksh. 500,000 was awarded in general damages.

23. In the lower court, the appellant urged an award of Ksh. 3,000,000 placing reliance on judicial determinations in David Kahahi Stephen Muthutheri v Midland Emporium Ltd & Others and Richard Chepkwony Kipng’etich v Gusii Deluxe Ltd [2009] eKLR. The claimant in the former case sutained mild paralysis of both legs; fractures of the 4th to 7th ribs; more fractures of the left and right clavicle bones and various soft tissue injuries which caused 40% permanent disability. He was awarded Ksh. 1,900,000 general damages for pain, suffering and loss of amenities. For being rendered a partial paraplegic following a spinal injury with a fracture of the cervicle spine and dislocation of the left shoulder among other injuries, the claimant in the latter decision was granted Ksh 1,500,000 general damages.

24. The trial was of the view that the cases relied upon by both parties were relevant and of useful guidance and upon considering the same while taking into account that the cases cited by the 1st respondent were more recent, the court assessed general damages for pain, suffering and loss of amenities in the sum of Ksh. 1,500,000. The trial court’ s award is comparable to awards in more or less similar cases and is not to be faulted.

25. On the head of loss of earning capacity/ diminished earning capacity, the appellant submitted before the lower court that Ksh. 1,000,000 is an appropriate global award under this head citing in reliance the case of Chaka Ndoro v Maree Ahmed & Another [2017] Mumias Sugar Company Ltd v Francis Wanalo [2007] eKLR where Ksh. 500,000 were assessed in favour of the claimant. The 1st respondent does not seem to have made submissions on this category of damages. The trial court correctly stated the principles guiding consideration of such damages . The damages can be claimed as part of general damages for pain, suffering and loss of amenities or separately depending on the facts and circumstances of each case. The global approach of assessment of damages is usually preferable to assess these damages as there is no particular formula for the quantum of damages awardable under this head (see case law in Alpharama Limited v Joseph Kariuki Cebron [2017] eKLR) among other decisions cited in the learned trial magistrate’s judgement. in which the appellant was granted Ksh. 500,000.

26. The appellant suffered serious debilitating injuries as well as psychological torture arising from erectile disfunction at a youthful age. I find no basis to disturb the lower court’s award under this head of damages regard being had to all obtaining circumstances including the significant degree of permanent disability.

27. Concerning special damages, it is trite law as noted in Counsel submissions that special damages must not only be specifically pleaded but also strictly proven. The 1st respondent contends that the appellant did not demonstrate his claimed loss of earnings in the sum of Ksh. 500 daily from April 2015 to June 2016. In relation to medical costs the court is told that the invoice exhibited is not proof of actual payment and that receipts should have been produced instead.

28. The trial court agreed with the 1st respondent and rejected the loss of earnings and medical treatment expenses re-imbursement for want of proof by payment receipts. Only the claim for Ksh. 2,000 in medical examination fees was accepted as a payment receipt was tendered. Again, there is no ground on which to disturb the trial court’s findings. The court correctly applied the relevant legal principles.

Cross- Appeal. 29. The 1st respondent preferred a cross- appeal dated 19. 10. 2023 challenging the learned trial magistrate’s finding on liability and quantum of damages against it on the following grounds:a.That the learned trial magistrate erred in law and fact by finding that there was an employment relationship between it and the appellant.b.That the learned trial magistrate erred in law and fact by failing to find that there existed a contract of service between the 1st and 2nd respondents.Andc.That the learned trial magistrate otherwise erred in law and fact in finding the 1st respondent 50% liable against the weight of evidence proffered in the lower court.

30. The 1st respondent therefore prays for dismissal of the appellant’ appeal; that liability be determined at 100% against the appellant ; that the court does re-assess the quantum of damages awardable and that the costs of the main and cross-appeal be granted to the 1st respondent

31. The 1st respondent in its submissions did not address the cross-appeal . Notwithstanding the court has determined the same issues in the main appeal.

Determination 32. Concerning the main appeal, the trial court’s judgement on liability is set aside and substituted with apportionment of liability in the ratio of 30% against the appellant to 70% against the 1st and 2nd respondents, jointly and severally. The Cross-Appeal is dismised in its entirety. The parties shall bear their own costs of the main and cross-appeal .

JUDGEMENT DELIVERED VIRTUALLY THIS 4TH DAY OF OCTOBER 2024 IN THE PRESENCE OF :The appellant’s Advocate,The 1st respondent’s Advocate,The 2nd respondent,The Court Assistant, AminaJ. M NANG’EA, JUDGE