[2019] KEHC 5846 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CIVIL APPEAL NO. 114 OF 2013

[FORMERLY NYERI HIGH COURT CIVIL APPEAL NO. 68 OF 2012]

KENYA PAPER MILLS LLTD.................................APPELLANT

VERSUS

ANTHONY KIMANI MBUGUA............................RESPONDENT

[Appeal from thejudgmentof T. M. Gesora, Principal Magistrate,

in Kandara CMCC No. 187 of 2009 delivered on 14th June 2012]

JUDGMENT

1. The appellant is aggrieved for being held liablefor a work-injury accident. It also contests the quantum of damages.

2. By a plaint dated 4th August 2009, the respondent pleaded that on 20th August 2008 he was assigned duties to “spray chemicals at the appellant’s farm”. He claimed that he was not supplied with any protective gear. He pleaded further that after “long exposure” to chemicals he developed complications to his chest and skin. He blamed the appellant for failing to provide a safe system of work.

3. He claimed special damages of Kshs 5,788 for hospital expenses and the cost of procuring a medical report. He prayed for general damages and costs.

4. In a statement of defence dated 28th October 2009, the appellant denied the claim in toto. It also blamed the respondent for contributory negligence to wit: failing to wear protective gear; failing to follow regulations; being absent minded; and, deliberately exposing himself to injury.

5. The learned trial magistrate found that the appellant was wholly liable. He assessed general damages at Kshs 500,000 and special damages at Kshs 10,000. He also granted the respondent interest and costs..

6. The memorandum of appeal is dated 27th June 2012. There are seven grounds. I will abridge them to three. First, that on the totality of the pleadings and evidence the respondent failed to prove liability of the appellant; secondly, that the learned trial magistrate disregarded the evidence and submissions by the appellant; and, thirdly, that the general damages were manifestly excessive.

7. At the hearing of this appeal, learned counsel for the appellant relied on written submissions filed on 11th April 2019. The respondent’s counsel relied on the submissions filed on 11th June 2019.

8. This is a first appeal to the High Court. It is thus an appeal on both facts and the law. I have re-evaluated all the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] E.A 123.

9. The respondent testified in the lower court as follows-

“I used to work at the defendant. It is also known as Chandaria. I was employed to mix chemicals. We worked in shifts. On 20/8/2008 I reported to work as usual. The chemicals prevent paper from blotting. When I opened one of the cans of chemicals I suddenly felt cold in the body. I felt weak. I slept there”

10. The respondent said that a colleague took him to the supervisor, Macharia, who gave him permission to go to hospital. The respondent said he went for treatment at Thika District Hospital on various dates between 2008 and 2009. He said an x-ray was taken.

11. In cross examination, he said the air at the factory was foul and peaked on 20th August 2008. He said he was not provided with an overall and mask. He conceded that on the initial visit to the hospital, he did not complain about the chemical. He did so at the next visit. He denied that the treatment cards he produced in court were not genuine. He said he used to suffer from chest pains earlier for which he took pain killers.

12. PW2 was a clinical officer at Thika Level 5 Hospital. He said the two medical cards (Plaintiff’s exhibit 5) were genuine and signed by an intern who worked at the hospital. He said that on 10th September 2008, the respondent said he reacted to some chemicals. The patient complained of chest pain, cough and difficult breathing. PW2 said that the doctor’s impression was that the respondent had pneumonia.

13. However, in cross examination, he said he was not sure if an x-ray, sputum and blood samples were taken. He also stated that-

“Allergic bronchitis can be caused by other things other than chemicals example dust, pollen and other fumes. Other than history I cannot say that was caused by chemicals”

14. PW3 was Dr. Karanja. He produced a medical report prepared by Dr. Karuri dated 30th October 2008. The stamp and contents betray the true date to be a year later on 30th October 2009. He said the respondent had difficulties in breathing and a bloody cough. He was of the opinion that the respondent had chronic bronchitis due to chemicals. But when cross examined, he conceded that the examining doctor (Dr. Karuri) relied on the patient’s history and medical records from Thika Hospital. He did not carry out any tests. He also said the condition can be hereditary or caused by other factors like dust or pollen.

15. The appellant’s first witness was Elizabeth Wanjiru, a health records and information officer at Thika Level 5 Hospital. She said that the two cards (Plaintiff’s exhibit 5) do not appear in the casually or outpatient registers. She also doubted the cards because the hospital only attained the status of “Level 5” in July 2010.

16. She added that the respondent’s name was missing in the outpatient register of 20th August 2008 and 13th February 2009. On cross examination, she conceded that their records are not perfect. But she said that a booklet has 100 cards; and it is not possible that less than 100 patients visited the hospital between 20th August 2008 and 13th February 2009.

17. The next witness was Stephen Asuna, a production supervisor at the appellant company. He said the respondent worked at the company from 2006. He had never complained of illness. He said that employees would bring gumboots and overalls (which the respondent had). The company supplied gloves and dust masks. He said the claim was fictitious.

18. On cross examination, he conceded that he was not the immediate supervisor. He also conceded that the respondent’s doctor had recommended that he be transferred to a new section. But he denied that that was the reason the respondent was dismissed. He said the respondent was sacked for gross misconduct.

19. The duty of the employer to ensure the safety of an employee is not absolute; it is one of reasonable care against a foreseeable risk or one that can be avoided by taking reasonable measures or precautions. See Halsbury’s Laws of England 4th edition volume 16 paragraph 562, Mwanyule v Said [2004] KLR 1, Arkay Industries Ltd v Amani [1990] KLR 309, Eldoret Steel Mills Limited v Moenga Obino, High Court, Eldoret Civil Appeal 3 of 2011 [2014] eKLR.

20. It is not contested that the respondent was employed by the appellant since 2006. There is also no doubt that he was on duty on 20th August 2008. From the year 2007 to February 2009, the respondent worked in the chemical section.

21. The evidential and legal burden of proof that he was injured by the chemical substance or fumes lay squarely upon the respondent’s shoulders. See sections 107 and 109 of the Evidence Act.

22. In paragraph 5 of the plaint he pleaded that “he was assigned duties to spray chemicals at the appellant’s farm”. The record is not clear if the plaint was ever amended. But in the evidence, he said he suffered the chemical attack inside the factory. He had pleaded in the plaint that he suffered as a result of “lengthy exposure” to chemicals. But in evidence, he said-

“On 20/8/2008 I reported to work as usual. The chemicals prevent paper from blotting. When I opened one of the cans of chemicals I suddenly felt cold in the body. I felt weak. I slept there”

23. It was not enough to merely list the chemicals (Plaintiff’s exhibit 3). The plaintiff required to prove that his illness resulted from exposure to the chemical(s). When he visited the hospital on 20th August 2008, he did not complain of the chemicals. The allegation was only made on 10th September 2008. Sadly, no tests were carried out.

24. Dr. Karanja (PW2) said that his colleague, Dr. Karuri, examined the respondent. As I observed earlier, it must have been on 30th October 2009. That was well over a year since the incident. He freely conceded that he did not carry out an x-ray, sputum or blood tests; and, that he relied on the patient’s history and medical records from Thika Hospital. Even at the hospital no such tests were done to establish the chemical attack.

25. I have serious doubts about the authenticity of the two outpatient cards (Plaintiff’s exhibit 5). This is evident from their serial numbers; the outpatient or casualty registers (Defendant’s exhibits 2 & 3); and, the stampimpression bearing the names of Thika Level 5 Hospital. But the appellant’s witness conceded that the hospital records are not perfect. It would be unfair to blame the respondent for those records.

26. But the point to be made is that a combination of respondent’s evidence and the medical evidence from PW2 and PW3 did not prove the chemical was hazardous; or, that the chronic bronchitis was caused by inhaling or handling the chemical. It did not also exclude other causes of the illness such as dust or pollen. It is also not lost on me that the first doctor who examined the respondent on the date of the accident assigned the cause to a bout ofpneumonia.

27. I thus find that the respondent failed to prove his claim on a balance of probabilities.

28. Regarding quantum of damages, it is well settled that an appellate court will not interfere with quantum of damages unless the award is so high; or, inordinately low; or, founded on wrong principles. Butt v Khan [1982-88] KAR 1.

29. The key document is the medical report by Dr Karuri (exhibit 6). It shows the respondent complained of chest pains in August 2008 and was treated between 20th August 2008 and 13th February 2009. On the date of the examination by Dr. Karuri, the respondent had difficulties breathing and a cough with blood-stained sputum. However, he had good air entry bilaterally with no sounds.

30. The plaintiff in the case of Thomas Mukhaya v African Diatomite Industries, High Court, Nakuru, Civil suit 90 of 1996, had more serious injuries. There, general damages were assessed at Kshs 450,000. The holding in Faith Mutindi Kasyoka v Safepark Limited High Court, Nairobi, Civil Appeal 551 of 2014 [2019] eKLR is more relevant. In the latter decision, the High Court enhanced general damages to Kshs 300,000. It is important to add that the decision was delivered on 23rd November 2018.

31. Clearly, the award of Kshs 500,000 was excessively high and reflects an error of principle. Guided by the decision in Faith Mutindi Kasyoka v Safepark [supra], an award of Kshs 250,000 would have been more than sufficient in this case.

32. Special damages must be specifically pleaded; and, strictly proved. Kampala City Council v Nakaye [1972] E.A 446. The respondent proved special damages of Kshs 3,000. It was open to the court to grant Dr. Karanja’s court attendance charges which were proved at Kshs 7,000.

33. But that now is all water under the bridge. The respondent having failed to establish his case on liability, this appeal must succeed.

34. I set aside the judgment and decree of the lower court dated 14th June 2012. I substitute it with an order dismissing the respondent’s case in the lower court.

35. Costs follow the event and are at the discretion of the court. Considering the predicament that has befallen the respondent; and, in the interests of justice, each party shall bear its own costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 10th day of July 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

Mr. Magani for Mr. Njihia for the appellant instructed by Punja & Kagongona Advocates.

Mrs. Adaani for Mr. Kebongo for the respondent instructed by Shem Kebongo & Company Advocates.

Ms. Dorcas and Mr. Elizabeth, Court Clerks.