[2017] KEHC 9136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 394 OF 2015

LUKA CHARLES MUSUMBA.................................................APPELLANT

VERSUS

CHARLES MUNGE...............................................................RESPONDENT

(Being an appeal from the Judgment delivered on 30th July, 2015 by Hon. Mrs. R.A.

Oganyo,Chief Magistrate Milimani Commercial Courts in CMCC No.1298 of 2011)

JUDGMENT

1. Through an amended plaint dated 29th June, 2011, the Appellant filed suit before the lower court claiming general damages and special damages. The Appellant’s claim was that he was injured on 23rd June, 2005, while he was working as a security guard for the Respondent. The Appellant blamed the injuries sustained on the Respondent’s negligence, breach of statutory and implied contractual terms and obligations.

2. The claim was denied by the Respondent as per the statement of defence dated 19th March, 2012. The Respondent blamed the injuries on the Appellant’s negligence.

3. The Appellant filed a reply to the defence and reiterated the contents of the defence

4. During the hearing of the case, the Appellant testified (PW1). He adopted his witness statement dated 9th May, 2011 as his evidence herein. The Appellant’s evidence was that he was patrolling a building within the Respondent’s property at Rosslyn area of Nairobi at the material time. That while climbing a metal ladder to check the upper part of the building, the ladder slipped and he fell down and sustained injuries. The Appellant blamed the Respondent for failure to provide him with a torch yet the area was poorly lit. He further blamed the Respondent for failure to have the ladder secured safely.

5. PW2 Dr. Moses Kinuthia testified and produced a medical report which reflected that the Appellant sustained a fracture of the right talus bone of the ankle, blunt trauma to the back abrasion wounds both hands, cut wound right eye and blunt trauma with swelling of the right ankle. The doctor recommended physiotherapy and use of analgesics at an estimated cost of Ksh.50,000/=

6. The Respondent’s case was closed without the calling of any witnesses. Parties thereafter filed written submissions.

7. The trial magistrate found the Appellant’s case not proved. The case was dismissed with costs. The trial magistrate stated that general damages would have been assessed at Ksh.600,000/= if the Appellant’s case had succeeded.

8. The Appellant was aggrieved by the said judgment and appealed to this court on the following grounds:

“1. ) That the Honourable Magistrate erred in law and fact by holding that the Appellant was solely responsible and exclusively owed himself a duty of care.

2. ) That the Honourable Magistrate erred in law and fact by finding that the Respondent had no nexus to the causation of the Appellant’s injuries.

3. ) That the Honourable Magistrate erred in law and fact by absolving the Respondent of tortious and contractual obligations and resultant liability despite cogent and sufficient evidence adduced by the Appellant.

4. ) That the Honourable Magistrate erred in law and fact by upholding Respondent’s statement of Defence without any evidence in support thereof,

5. ) That the Honourable Magistrate erred in law and fact by failing to consider the cogent evidence adduced by the Appellant against the Respondent on a balance of probabilities.

6. ) That the Honourable Magistrate erred in law and fact by shifting the burden of proof to the Appellant without any evidence in rebuttal adduced by the Respondent.

7. ) That the Honourable Magistrate erred in law and fact by failing to award special damages of Kshs.2,000 and Future Medical Expenses of Ksh. 50,000/= despite cogent evidence and strict proof adduced by the Appellant.

8. ) That the Honourable Magistrate erred in law and fact by assessing General Damages at Ksh.600,000/= instead of Ksh.1,000,000/= contrary to judicial precedents and misapplication of discretion injudiciously.

9. ) That the Honourable Magistrate erred in law and fact bycondemning the Appellant to pay the costs of the suit.”

9. The Appellant prayed for:

“1. ) That the Decision, Judgment and Decree of Hon. R. A. Oganyo Chief Magistrate delivered on 30th July, 2015 be set aside.

2. ) That the Appellant be awarded:

a. General Damages to be assessed at least Ksh.1,000,000/=

b. Special Dagamages Ksh.2,000/=.

c. Future Medical Expenses ksh.50,000/=.”

10. The appeal was canvassed by way of written submissions which I have duly considered.

11. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. 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 if it appears either that he has clearly failed on some point 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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

12. On liability, the Appellant’s complaints in ground 1-6 can be condensed into one. That is whether the judgment of the trial magistrate was against the weight of the evidence. The Appellant’s evidence that he was working in a poorly lit environment without a torch and had to climb a ladder to the upper part of the building was not shaken in cross-examination nor controverted by any other evidence. On the other hand the Appellant admitted during cross-examination that he had used the same ladder previously but with the “shamba boy” holding the ladder for him. The Appellant further stated that the “shamba boy” was not available on the said day but he had to carry out his (Appellant’s) work as per the instructions of his employer.

13. From the above scenario, the Appellant’s evidence reflects there was failure on his part to take further steps to ensure his safety while on the other hand the Respondent as the employer had not provided a safe system of work, for example by having the ladder secured safely and having the environment well lit.

14. The statement of defence filed by the Respondent remains mere assertions as no evidence was called to support the same. He who assets must prove. As stated by the Court of Appeal in the case of Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited Civil Appeal No. 101 of 2000 [2005]1 EA 280:

“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the court to believe in its existence.”

I apportion liability on a 50:50 basis.

15. On whether the award of Ksh.600,000/= as general damaged too low and failed to take into account judicial precedents, it is noted that the Appellant had submitted in the lower court for an award of Ksh.1,000,000/=. The Appellant relied on the case of Gem Court Ltd v Charles Andole (2014) eKLR where a sum of Ksh.400,000/= was awarded for a fracture of the forearm with complaints of deformity and weakness of the forearm.

16. Further reliance was placed on the case of Ben Mengesa v Edith Makungu lande [2013] eKLRwhere in the year 2012 an award of Ksh.900,000/= as general damages was made for injuries which included multiple blunt injuries to the head, shoulders, back and injuries to both legs and chest. The Plaintiff therein was hospitalized for three days and complained of persistent and recurrent low back pain. X-rays taken revealed degenerative changes of the discs between L5 and S1 vertebral bones with muscle spasms. Clearly the injuries in this authority are more serious than the instant case.

17. The Respondent’s counsel had on the other hand submitted for an award of Ksh.10,000/= as general damages. The following authorities were relied upon:

- Loise Nyambeki Oyugi v Omar Haji Hassan HCCC Nbi 450/91 where a sum of Ksh.20,000/= was awarded for similar injuries.

- Wellington E. Miena v Nairobi City Commission HCCC 1148/92 where Ksh.80,000/= was awarded for an injury to the eye.

The injuries in the authorities cited by the Respondent’s counsel are not comparable to the injuries in the instant case. The cases relied upon by the Respondent are also quite old. The passage of time and inflationary trends must be taken into account.

18. In his submissions during the hearing of the appeal, the Respondent’s counsel relied on the following cases :

- Harun Muyoka Boge v Dr. Daniel Otieno Agulo [2015] eKLR where an award of Ksh.300,000/= was made as general damages for blunt injuries to the chest, soft tissue injuries and a fracture of the right tibia and fibula.

- Kilonzo Mutunga v Landmark Holdings Limited [2010] eKLR where an award of Ksh.600,000/= was made for injuries which included a fracture of the right fibula.

- Kimatu Mbuvi T/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR where an award of Ksh.300,000/= general dagames was made in the year 2006 for injuries which included multiple soft tissue injuries and a fracture of the left radius and ulna bones. The Respondent’s counsel further submitted that the quantification of Ksh.600,000/= as general damages was reasonable if the claim had succeeded in the lower court.

19. Taking into account the injuries sustained by the Appellant, I find no basis for interfering with the quantum of damages. As stated by the Court of Appeal in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia and olive Lubia 91985) 1 KAR 727:

“....the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.....”

20. The Appellant pleaded the particulars of special damages as Ksh.2,000/= for obtaining the medical report and Ksh.50,000/= for future medical expenses. The doctor’s evidence reflects that the future medical expenses included physiotherapy sessions and pain killers. The Appellant gave his evidence in the year 2014 which was three years from the date of the medical report produced herein. There is no evidence of any further treatment by way of treatment notes or otherwise. It can thus be presumed that almost ten (10) years down the line after the injury, the Appellant did not require any future medical treatment by the time he testified.

21. The claim for Ksh.2,000/= claimed as special damages was proved by way of the receipt produced.

22. I find that the appeal has merits and allow the same for the sum of Ksh.600,000/= general damages and Ksh.2,000/= special damages. Subjected to 50% apportionment of liability, the amount comes to Ksh.301,000/=. Consequently, the judgment of the lower court is set aside and substituted with judgment in favour of the Appellant against the Respondent for the sum of Ksh.301,000/=. The Respondent to meet the costs in the lower court and 50% of the costs of the appeal.

Dated, signed and delivered at Nairobi this 20th day of July, 2017

B. THURANIRA JADEN

JUDGE