[2012] KEHC 1625 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

Civil Appeal 30 of 2004 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>

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KINGS BAKERY LIMITED…………….........…………………….APPELLANT

VERSUS

EAPHAEL ONJORO OLOO…………………………………..RESPONDENT

JUDGMENT

(Being an appeal from Judgement and Decree of Ho. Solomon Wamwayi Chief Magistrate in Eldoret. CMCC 104 of 2002 delivered on 22nd day of January 2004)

The Respondent filed a Plaint in the Chief Magistrate Court being CMCC No. 104 of 2002 seeking both general and special damages for injuries sustained while working for the Appellant on 19th April 2001. The Respondent averred that the Appellant was in breach of statutory duty of care and was negligent in failing to provide the Respondent with protective gear or apparel and further for failing to service its machine. The Appellant filed a Defence denying liability and alleging contributory negligence on the part of the Respondent in the alternative. The matter was heard before Honourable Mr. Solomon Wamwayi who in a judgment delivered on 21st January 2004 awarded the Respondent Kshs. 200,000 general damages and Kshs. 1,500/= special damages. He apportioned liability in the ration of 10:90 against the Appellant. The Appellant was not satisfied and on 8th February 2004 presented a Memorandum of Appeal contending as follows:

1. That the trial magistrate erred in law and in fact in ignoring the evidence on record.

2. That the learned trial magistrate erred in law and in fact in holding the Defendant negligent to high percentage despite the evidence on record to the contrary.

3. That the learned trial magistrate erred in law and in fact in ignoring the submissions of the defence without any good or proper grounds to do so.

4. THAT the learned trial magistrate erred in law and in fact in awarding damages which were excessive without any basis.

5. THAT the learned trial magistrate erred in law and in fact in sustaining the suit when it was not shown and/or proved that the Plaintiff was injured within the Defendant’s premises.

6. THAT the learned trial magistrate erred in law and in fact in shifting the burden of proof to the Defendant contrary to the laid down principles if law.

Consequently, the Appellant prays that the appeal be allowed and the judgment be set aside with costs to the Appellant. The appeal was admitted to hearing on 28th November 2005. The appeal had initially been heard by Justice Gacheche on 28th February 2006. But before she could conclude the hearing and deliver her judgment she was transferred to another station. On 20th March 2007 the parties agreed that the appeal be heard de novo before any other judge. The appeal was heard before me on 6th May 2008. Both parties were represented by counsel. Counsel for the Appellant submitted that he will argue grounds nos. 1, 2 and 3 together. He submitted that in awarding liability in the ratio of 10:90 and awarding general damages of Kshs. 200,000 the trial magistrate committed an error in law. That the Respondent was pushing a trolley to a fridge. The Respondent hit another trolley and sustained injuries to left fingers. He lost a finger nail and injuries to third and fourth finger. The Respondent contributed to the accident to a greater extent. Respondent did not act reasonably to avoid the accident. Respondent had worked for a period of 6 months and knew the risks involved. Liability should have been awarded at 50:50. On damages counsel submitted that they were excessive. He failed to consider the evidence on record. It is not true that the Respondent was amputated. Counsel also submitted that it was wrong for the trial magistrate to fail to consider submissions of the Appellant. Submissions had been duly filed by 10th December 2003. Counsel contended that the award was out of tune with awards in similar injuries. A reasonable award would have been Kshs. 100,000/=.

In reply counsel for the Respondent submitted that it has not shown that the trial court applied the wrong principles. That the award was just. That the trial magistrate did not shift the burden of proof in establishing liability. There was evidence that the trolley was defective. Respondent was not provided with gloves. Responded reported the defect to his boss who told him to push the trolley as it was. The Appellant did not adduce any evidence. The trail magistrate considered all the issues in finding the Appellant liable. He urged that the appeal be dismissed with costs.

I have considered the submissions of both counsels and I find that two issues call for determination. Firstly, whether the apportionment of liability was out of proportion to the evidence on record, and secondly, whether the quantum of damages awarded was excessively high as to manifest an error of principle. This is a first appeal and the role of this court is to re-evaluate the evidence and independently test the conclusions of the trail magistrate of course giving allowance to the fact that the trial court had the advantage of watching the demeanour of witnesses. The evidence of the Respondent was recorded as follows:

“I am Raphael Onjoro Oloo. I stay at Baringo estate in Eldoret. I am not employed. I recall on 19/4/01 I was baking bread at Kings Bakery Ltd. I was also loading on the trolley and I would push the trolley to a place where the bread cools namely, a fridge. The wheels of the trolley were not rotating. I reported to my boss that the trolley was defective. The boss is one Pius. The boss said I should push it as it was. I pushed the trolley up to the fridge and my left hand hit another trolley and four of my fingers were injured. One finger came out and the other fingers got swollen. I then went to Uasin Gishu Hospital for treatment and he was treated and discharged…I blame the Defendant for forcing me to work on a defective trolley and failing to provide me with hand gloves. The gloves would have protected me. It is not true hat I did not follow instructions.”

On cross-examination the Respondent reiterated that the trolley was not moving all four wheels. He had to push it with a lot of force. He reported to Pius who was his immediate boss. He was injured at 7pm. Soon after reporting. He could not avoid hitting the trolley as there were four other trolleys in the fridge. His finger was not amputated. PW2 was Dr. Solomon Kibet Sirma. He examined the Respondent on 14/1/02. On examination he found that the Respondent had the following injuries: traumatic amputation of the 2nd left finger, blunt injuries on the 3rd, 4th and 5t fingers on the left hand. On cross examination and reexamination he clarified that the Respondent had traumatic amputation of the 2nd left finger at the distal part of the left 2nd finger. He produced the medical report as P Ex 2. The treatment notes were produced by consent as P Ex 1(a) and (b).

The trail magistrate assessed the evidence as follows:

“It was the Plaintiff’s evidence that while pushing the trolley his hand hit another trolley and his hand was injured. It was the Plaintiffs evidence that while pushing the trolley he had to use a lot of force as the wheels of the trolley were not moving and in the process he was injured. The Plaintiff has blamed the Defendant for providing him with defective trolley and failing to provide him with hand gloves….the Defendant did not adduce any evidence to controvert the Plaintiff’s testimony. I do find that the Defendant insisted that the Plaintiff pushes a defective trolley whose four wheels could hardly rotate and in the process the Plaintiff‘s hand hit another trolley that was in the fridge area. I also find that the Defendant failed to issue the Plaintiff with gloves. I do therefore hold that the Defendant exposed the Plaintiff to danger and therefore was negligent. I also find that by working on a defective trolley the Plaintiff took a calculated risk. I do hold that the Plaintiff has proved his case against the Defendant on a balance of probability and I do enter judgment for the Plaintiff against the Defendant on liability. I do hold that the Defendant is to bear 90% of liability and the Plaintiff to bear 10% liability.”

I find that the trail magistrate completely took into account the evidence on record and that my findings could not have been any better. Consequently, I find that grounds 1, 2, 5, and 6 lack merit and they fail accordingly. The only aspect is the question of quantum as captured in ground 4. The Appellant counsel argues that the trial magistrate was wrongly influenced by the fact that the Respondents finger was amputated whereas this was not so. It is clear from the evidence that the trial magistrate considered that the Respondent had admitted that his finger had not been amputated. He therefore proceeded on the basis that there was no amputation. He was referred to the case of John Omuga Okir v. Mombasa Towel Manufacturers Ltd HCCC 395 of 1990. It was a case where the Plaintiff had suffered amputation of the terminal parts of the left thumb and index finger. The high court awarded Kshs. 115,000/=. The trial magistrate adjusted the figure owing to inflation and doing the best he could he awarded Kshs. 200,000/= as general damages. It is true that the trail magistrate did not consider the submissions of the Appellant. Did this occasion a miscarriage of justice? I believe that that the error was inadvertent. The Trial Magistrate stated that he had received submissions from Mrs. Kigen. If there was any ill will the trial magistrate would not have mentioned this fact. The proceedings of 15/12/2003 do not reflect anything to do with submissions. The Court gave a judgment date on 16/1/04. Mrs Kigen was present. She must have presented her submissions to the court given that they were filed on 10th March 2012.

I will therefore consider her submissions on quantum to determine whether it would have affected the award of the trial magistrate. Mrs Kigen proposed general damages of Kshs. 45,000/= less 40 % contribution. She relied on the case of Apithao Aman v Pump Maintenance EA Ltd HCCC 468 of 1984where an award of Kshs. 16,000/= was made for similar injury. Judgment was made in 1986. In the case of Festus Ngei Munywoki v Mohamed H.P. Kaduara Transport HCCC 4800 of 1992. A sum of Kshs. 50,000 was awarded and judgment delivered in 1993.

With due respect to counsel for the Appellant the above decisions do not pass the test of awards in concurrent circumstances. The age difference is enormous. This court takes judicial notice of the tendency of advocates who are defending accident claims to provide case law with very low quantum as suitable authority for awarding proposed quantum. However, this may not be doing justice to the court and to their client. Because if the material is not of value it would be extremely unfair to accuse a court for not using the material. The submissions also argued that the Plaintiff had not produced any document to show that he was employed by the Appellant. There was oral evidence of the Respondent which had not been controverted that he was employed by Appellant and was injured while in the course of employment. Ground 4 of the appeal therefore fails.

The upshot is that I find that the appeal has no merit and it is hereby dismissed with costs.

DATED AND SIGNED AT NAIROBI ON THIS 2ND DAY OF AUGUST 2012

M. K. IBRAHIM

JUDGE

DATED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF OCTOBER 2012

F. AZANGALALA

JUDGE

In the presence of: Mr. Okoth for the appellant and Ms Nyamwega h/b for Mr. Esikuri for the respondent.