[2022] KEHC 13566 (KLR)

Lomolo (1962) Limited v Mashere (Civil Appeal 116 of 2016) [2022] KEHC 13566 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13566 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 116 of 2016

HK Chemitei, J

October 6, 2022

Between

Lomolo (1962) Limited

Appellant

and

Wycliff Musungu Mashere

Respondent

(Being an appeal from the judgment/decree of Honorable M. Kasera Principal Magistrate Eldama Ravine, delivered on 27th September 2016 in Eldama Ravine PMCC No. 13 of 2014)

Judgment

1. The appellant was sued by the respondent, who claimed to be a lawful employee of the appellant was pieced by a poisonous sisal thorn on the head which appeared on the upper side thereby causing him serious injury. He blamed the appellant for not providing him while on employment with protective gear. He 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 court’s award on both liability and quantum on the following grounds:a.That the honorable 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 clam 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 that the respondent's claim against the appellant was not founded and was replete with fraud, deception and illegalities.e.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.

4. 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 at the time of the incident and that during his cross-examination as PW1 he admitted not having any documents showing that he was employed by the appellant. The appellant submitted further that DW1 testified that he was the clerk at the appellant’s office and that he kept records from the field. It was his testimony that all the employees were in the muster roll for the appellant and that the respondent’s records were not in the said muster roll for the year 2012. He produced a copy of the same as exhibit before the trial court. DW1 stated that the appellant gave its employees sisal knives, ropes for tying leaves and they were to wear gloves.

6. The appellant went on to submit that the respondent ought to have produced documentary evidence to show that he was its employee or call as a witness any casual employee whom they used to work together with him and was present at the time of the injury. According to the appellant the respondent failed to discharged the evidentiary burden of proof vested upon him by law. They placed reliance on Halsbury’s Law of England 14 Edition, Vol 16 at Paragraph 562 and the cases of Nandi Tea Estates Ltd v Eunice Jackson Were [2006] eKLR and Devki Steel Mills Limited v John Mbuvi Mackenzie [2016] eKLR.

6. It was also the appellant’s submission that there was clear discrepancy between the date it is alleged the respondent was injured on December 3, 2012 and the date on the treatment card from Mogotio Health Centre which was dated December 3, 2007. That the respondent in his plaint indicated that he had cut thorns in the cause of his work, therefore his claim was not founded and was replete with fraud, deception and illegalities.

7. The appellant submitted that it was upon the respondent to plead the particulars of negligence and prove its elements something which he did not do. It placed reliance in the locus classicus case of Donoghue v Stevenson Hist Pols 258 2 P 618-619.

6. The trial magistrate thus failed to appreciate and apply the principles applicable in a claim of negligence. 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 7. 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.

8. 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 Company 1968 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.'

9. 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 his pleadings, witness statement and testimony stated that he was injured on December 2, 2012 while in the course of his employment with the appellant. This occurred as he was cutting sisal when a poisonous sisal thorn pierced him on the head which appeared on the upper side thereby causing him serious injury. He went to Mogotio health center on December 3, 2012 for treatment and he later saw PW2 Dr Omuyoma who made a report on the injury.

10. The respondent attributed the accident to negligence on the part of the appellant insisting that it failed to provide him with protective gears. The respondent during cross-examination stated that he worked at the appellant’s company from 1987 to December 2, 2012 but he however did not have any documents to show the court.

11. The appellant called one witness DW1 Francis Gituikui Ridah who testified that the respondent’s records did not appear in the appellant’s master roll. He produced the master roll for December 2012 as exhibit in court. The respondent never produced any written evidence of employment or called any witness to confirm that he was indeed employed by the appellant on the fateful day. Therefore, in my view the respondent failed to prove that he was injured while on lawful duties under the appellant’s employment.

12. At the same time, the respondent attributed the accident to negligence on the part of the appellant for failing to provide him with protective gear while he was working. In view of the finding above, that the respondent did not prove employment relationship with the appellant and that he was not injured while in the course of employment by the appellant i hold that the appellant was not liable for the injuries sustained by respondent. I have looked at the muster roll for the month of December 2012 when said injury allegedly occurred, as produced by appellant witness in the trial court and I note that the respondent’s name does not appear therein.

13. 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.

14. On 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 his employment by the appellant , this court finds that the issue of quantum of damages did not arise and thus the trial court erred both in law and fact by condemning the appellant to pay the respondent the assessed damages plus costs and interests .

15. The appeal is therefore allowed, the lower courts judgement is set aside and the appellants shall have the costs of this appeal and at the trial court.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 6TH DAY OF OCTOBER 2022. HK CHEMITEIJUDGE