[2022] KEHC 13516 (KLR)

Lomolo (1962) Limited v Akinyi (Civil Appeal 118 of 2016) [2022] KEHC 13516 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13516 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 118 of 2016

HK Chemitei, J

October 6, 2022

Between

Lomolo (1962) Limited

Appellant

and

Kawaki Akinyi

Respondent

(Being an appeal from the judgment/decree of Honourable M. Kasera Principal Magistrate Eldama Ravine, delivered on 27th September 2016 in Eldama Ravine PMCC No. 14 of 2014)

Judgment

1. The appellant was sued by the respondent, who while being a lawful employee of the appellant was pricked by a thorn on the right foot as she was slashing grass in the middle of sisal plantation. She blamed the appellant for not providing her while on employment with protective clothes and shoes and also for not paying for her medication or compensating her. She sued for general damages, special damages, costs of the suit, interests and any other relief deemed fit by the court.

2. The matter proceeded to its conclusion where the court rendered its judgement. The appellant was shouldered 100% liability and on quantum the court awarded Kshs 60,000/= for general damages and Kshs 3,080/= for special damages.

3. Aggrieved by the said judgement, the appellant filed this appeal against the lower courts award on both liability and quantum on the following grounds:a.That the honourable magistrate erred in law in making finding on liability against the appellant which was not supported by evidence on record.b.That the honourable magistrate erred in law in holding the respondent has a successful claim of negligence against the appellant despite no claim of negligence being pleaded or particularized in the respondent’s pleadings.c.That the learned magistrate erred in law and in fact in failing to appreciate and find that the respondent was not the appellant's employment at the alleged time of the injury.d.That the learned magistrate erred in law and in fact in failing to appreciate and find the respondent had not proved his case against the appellant having adduced contradicting evidence of treatment.e.That the learned magistrate erred in law and in fact in failing to appreciate and find that the respondent's claim against the appellant was not founded and was replete with fraud, deception and illegalities.f.That the learned magistrate erred in law and in fact in failing to appreciate and apply the principles applicable in a claim of negligence.g.That the learned trial magistrate erred in finding the appellant liable at all on the face of all the available evidence.

4. The appellant prays that the judgment in the subordinate court be reviewed and set aside.

5. Parties were directed to canvass the appeal by way of written submissions but only the appellant complied.

Appellant’s Submissions 6. The appellant submitted that the respondent was not its employee on January 2, 2013 when it was alleged that she was injured as she left employment in the year 2005 a fact that she admitted during cross-examination. That DW1 also confirmed in his testimony that the respondent left appellant’s employment on February 11, 2005. It was therefore the appellant’s submission that it could not be held liable for the injury sustained by the respondent outside the course of her employment.

7. Further, that no documentary evidence was produced by the respondent to prove that she was under the appellant’s employment at the time she was injured and she also did not call any casual employee who was present at the time of the injury to testify on her behalf. The court’s attention drawn to the cases of Nandi Tea Estates Ltd v Eunice Jackson Were [2006]eKLR and Devki Steel Mills Limited v John Mbuvi Mackenzie [2016] eKLR.

8. The appellant submitted further that the treatment card and medical report produced by the respondent in court only showed that she was injured but did not infer any liability on its part. That it was upon the respondent to plead the particulars of negligence and prove its elements something which she did not do. Therefore, the trial magistrate failed to appreciate and apply the principles applicable in a claim of negligence. It placed reliance in the locus classicus case of Donoghue v Stevenson Hist Pols 258 2 P 618-619.

9. It urged the court to allow its appeal, set aside the lower court’s decision and the respondent be condemned to pay costs of the appeal as well those in the lower court.

Analysis and Determination 10. I have examined and considered the record of appeal, the grounds of appeal and the submissions by the appellant. The issues for determination are namely; whether the trial magistrate erred in law or in fact in finding that the appellant was liable for the injuries sustained by the respondent and whether this court should review and or set aside the judgment of the trial court.

11. This is being a first appeal, this court has a singular duty to re-evaluate the entire case and come up with its findings in the matter this is as set out in the case of Selle v Assorted Motor Boat Company1968 EA Company 1968 EA 123-126 where the court stated as follows:“Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial. Judge’s findings of fact appear earlier that he has clearly failed on some part to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

12. In addressing the first issue, whether the trial magistrate erred in law or in fact in finding that the appellant was liable for the injuries sustained by the respondent it is noted that the respondent in her pleadings, witness statement and testimony stated that she was injured on January 2, 2013 while in the course of her employment with the appellant. This occurred as she was slashing grass in the middle of sisal when she was pricked by a thorn on the right foot resulting to her injury. She went to Mogotio hospital on January 3, 2013 for treatment and she later saw PW2 Dr Omuyoma who made a report of the injury.

13. According to her, she did not get any help from the appellant. The respondent attributed the accident to negligence on the part of the appellant insisting that it failed to provide her with proper work gear like shoes but instead left her to work in her casual clothes and shoes. The respondent during re-examination testified that she could not remember when she left employment but that it was around the year 2005.

14. The appellant called one witness who testified that he knew the respondent and that she left the appellant’s employment on November 11, 2005. He also testified that in January 2013 the respondent was not under the appellant’s employment and did not appear in any of its records.

15. In view of the foregoing, the obvious contradiction is apparent given that both the respondent and the appellant’s witness confirmed that the respondent was not an employee of the appellant on the alleged date of the accident that is January 2, 2013 which was way after the year 2005 when she had left employment. Further, the respondent never produced any written evidence of employment or called any witness to confirm that she was indeed employed by the appellant on the fateful day. Therefore, in my view the respondent failed to prove that she was injured while on lawful duties under the appellant’s employment.

16. Also, the respondent attributed the accident to negligence on the part of the appellant for failing to provide her with protective shoes while she was working. In view of the finding herein above, that the respondent did not prove employment relationship with the appellant and that she was not injured while in the course of employment by the appellant, it is apparent that the appellant was not liable for the injuries sustained by respondent. The trial court erred in law and fact by finding that the appellant was 100% liable for the injuries sustained by the respondent on the fateful day.

17. I will now address the second issue, whether this court should review and or set aside the judgment by the trial court. Having found that there was no employment relationship between the parties herein and that the respondent did not sustain the injury in the course of her employment by the appellant the issue of quantum of damages could not have arisen. Consequently, this court holds that the trial court erred both in law and fact by condemning the appellant to pay the respondent the assessed damages plus costs and interests at cost rates.

18. In the premises, the appeal is allowed, the judgment and decree of the trial court in Eldama Ravine PMCC No 14 of 2014 is hereby set aside and the appellant shall have the costs of this appeal and those at the trial court.

DATED SIGNED AND DELIVERED AT NAKURU VIDE VIDEO LINK THIS 6TH DAY OF OCTOBER 2022. H. K. CHEMITEIJUDGE