[2010] KEHC 1640 (KLR)
The court found that the respondent's testimony did not support the pleaded facts in the plaint. While the plaint alleged injury while operating the boyd machine due to the defendant's negligence, the respondent's evidence was that he was injured by a bobbing he was carrying in a torn paper bag some distance away...
Source-derived case information.
- Citation
- [2010] KEHC 1640 (KLR)
- Parties
- Appellant: Londra Ltd; Respondent: Kenneth K. Bukisa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 125 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; lower court judgment set aside
- Judges
- DK Maraga
- Legal Topics
- Employer Liability, Pleadings Vs Evidence, Apportionment of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Londra Ltd
Appellant
Kenneth K. Bukisa
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in holding the appellant liable for the respondent's injuries.
- 2 Whether the respondent's evidence supported the pleadings regarding the cause of injury.
- 3 Whether the absence of the original treatment record affected proof of injury.
Ratio Decidendi
The court found that the respondent's testimony did not support the pleaded facts in the plaint. While the plaint alleged injury while operating the boyd machine due to the defendant's negligence, the respondent's evidence was that he was injured by a bobbing he was carrying in a torn paper bag some distance away from the machine. This contradiction meant that the trial magistrate had no basis for holding the appellant liable. The appeal was therefore allowed, and the lower court's judgment was set aside.
Court Disposition
appeal allowed; lower court judgment set aside
Orders
- The appeal is allowed.
- The judgment of the learned trial magistrate is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 125 of 2006
LONDRA LTD…………………………………APPLICANT
VERSUS
KENNETH K. BUKISA………………………..RESPONDENT
JUDGMENT
This is an appeal against the judgment of the Senior Resident Magistrate delivered on 17th July 2006 in Nakuru CMCC No.750 of 2005 in which the learned trial magistrate held the appellant 70% liable and awarded the respondent a sum of Kshs.62,500/-.
Mr. Murimi for the appellant submitted that there was absolutely no basis for holding the appellant liable.Besides the fact that in his evidence the respondent contradicted his pleadings, he submitted that the original treatment record having not been produced the plaintiff had not proved his injury.
On his part Mr. Maragia for the appellant submitted that the trial magistrate’s apportionment of liability was based on sound evidence and that Dr. Kiamba’s report which was based on the treatment record sufficed and urged me to dismiss this appeal with costs.
Having considered these submissions and read the record, I find that this appeal can be disposed of on just one point.In paragraph 6 of his plaint the respondent averred:-
“On or about 7th July, 2003 while the plaintiff was dully performing his duties the defendant so negligently provided him with an unsave system of work that while he was operating the boyd machine the top loose cover came off and fell on him causing him severe injuries.”
In his testimony the respondent said he was injured by a bobbing he was carrying in a torn paper bag some 50 metres away from the boyd machine.That is not operating the boyd machine as the learned trial magistrate found.I agree with counsel for the appellant that that evidence clearly did not support the respondent’s above pleading.The trial magistrate had therefore no basis for holding the appellant liable.Consequently I allow this appeal and set aside the judgment of the learned trial magistrate.The appellant shall have the costs of this appeal and those of the lower court.
DATED and DELIVERED this 2nd day of July, 2010.
D. K. MARAGA
JUDGE