[2017] KEHC 1398 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 272 OF 2012

MAGNUM ENGINEERING LIMITED.....................................APPELLANT

-V E R S U S –

JASON SOLOMON ANZAYA ........................................... RESPONDENT

(Being an appeal from the judgement of Hon. C. Obulutsa, SPM delivered on 31st July 2012 in the Chief Magistrate’s Court, Nairobi in Milimani CMCC No. 6666 of 2007)

JUDGEMENT

1) Jason Solomon Anzaya the respondent herein filed a compensatory suit against Magnum Engineering Limited the appellant herein for injuries he sustained while working for the appellant. It is alleged by the respondent that on 10th November 2006, while on duty in the respondent’s company, he was using a grinder when sparks emerged from the metal he was cutting and entered his right eye injuring it.

2) The learned trial magistrate Hon. D. Ole Keiwua (Mr) entered judgement in favour of the respondent as against the appellant for a sum of ksh.92,000/= plus costs of the suit and interest. The learned trial magistrate apportioned liability at 90% : 10% against the appellant.

3) Aggrieved by the judgment, the appellant preferred this appeal and raised the following grounds of appeal in its memorandum:

1. The learned trial Magistrate erred in law and in fact by apportioning liability at 90 :10 in favour of the Respondent as against the appellant, yet there was no justifiable cause to do so either from evidence tendered or from an objective assessment of the evidence tendered by both parties.

2. The learned Magistrate erred in law and in fact by making a finding that the Respondent was injured at work when in fact there was no evidence to support such a finding.

3. That the learned Magistrate erred in law and in fact by wholly disregarding the evidence of the defence witnesses merely on the basis that she is an accountant and not a supervisor, which was in disregard of the doctrine of indoor management, and thereafter proceeding to find the plaintiff’s evidence uncontroverted , thereby occasioning a miscarriage of justice.

4. The learned Magistrate erred in law and in fact by making an award of general damages that was manifestly excessive in the circumstances, there by occasioning a miscarriage of justice.

5. The learned Magistrate erred in law and in fact by arriving at a decision that was against the weight and propriety of the evidence adduced before him.

6. The learned Magistrate erred in law and in fact by failing to consider written submissions placed before him by the appellant, which if considered would have yielded a different outcome other than the one reached.

4) When the appeal came up for hearing, learned counsels appearing in the matter recorded a consent order to have the appeal disposed of by written submissions. I have re-evaluated the case that was before the trial court. I have also considered the rival submissions filed before this court.

5) The above mentioned 6 grounds of appeal may be summarised to two main grounds namely:

i.whether or not the learned trial magistrate erred in law and in fact by apportioning liability at 90% : 10% (grounds 1,2,3& 5)

ii.whether or not the learned trial magistrate erred in law and in fact in his award on damages (grounds 4,5&6)

6) The first ground to be determined is whether or not the learned trial magistrate erred in law and in fact by apportioning liability at 90% : 10%.

7) It is the appellant’s submission that liability should have been apportioned equally between the parties because the respondent did not discharge on a balance of probabilities how the appellant was negligent. It is the appellant’s submission that, it is also the employee’s responsibility to take care of his own safety, and as such employee’s safety is not only on the employer but also collectively on the employee. The appellant cited the case of Karanja –vs- Malele (1983) KLR 147wherein the court of appeal held inter alia that:

“there are two elements to be considered when assessing the issue of liability namely, causation and blameworthiness; there should be no distinction which can be drawn on attribution of negligence after seeing danger and negligence in not seeing it before hand............Apportionment of blame represents an exercise of discretion”

8) The respondent on the other hand submits that the apportionment of liability at the ratio of 90:10 in his favour as against the appellant is fair and should not be interfered with on appeal.

9) On re-evaluation of the case and evidence that was before the trial court, I find that, the respondent (PW2) stated that he was not given goggles and the machine grinder had no guard. He was allocated work by Jessi (the director of Magnum Engineering Limited). PW2 also testified and stated that the director told him that there was no guard or goggles. Dr. Kimani Mwaura (PW1)stated that he examined the respondent after an industrial accident where he had sustained injuries on the right eye. The foreign metallic body was identified and removed. PW2, stated that when he was injured at work, he reported to the director (Jessi) he was given money to go to hospital. He started at a City Council Hospital and was referred to Kenyatta National Hospital and operated on. He produced receipts and treatment cards of the same.

10) Joyce Wairimu, (DW1) an accountant in the appellant’s company stated that the respondent was at work on the day he was injured, but there was no injury reported. The trial magistrate held the appellant liable for the respondent’s injuries for failing to provide a good working environment to the respondent and for failing to provide protective gears namely goggles and gloves. The trial magistrate also found DW1’s evidence to be hearsay and unreliable. DW1 was not the respondent’s supervisor nor closely related to the work at the grinder. DW1 was an accountant in the appellant company. The respondent’s evidence on how he got injured was not controverted. I am convinced that the trial magistrate properly analysed the evidence and arrived at the right decision to apportion liability.

11) The second ground of appeal for determination is whether or not the learned trial magistrate erred in law and in fact on the award of damages.

The appellant submits that this court should interfere with the damages awarded by the trial magistrate and in its place substitute it with an award of ksh.65,000/- as damages considering the fact that there was no permanent incapacity assessed on the respondent’s eye injury and it cited the case of Bhupco Textile Mills Ltd –vs- Constantine Okello Ofunya (2009) Eklr, where the respondent suffered irritation of the cornea and was awarded Ksh.65,000/- as general damages. The appellant also cited the case of Fredrick Otieno Akong’o –vs- United Millers Ltd (2012) Eklr, where an award of Ksh.60,000/-was made to the appellant for injuries to the eye.

12) The respondent on the other hand submits that general damages of Ksh.100,000/- was fair and not excessive.

I am persuaded by the case of Butt –v- Khan (1977) 1KAR, which laid out the principles upon which an appellate court should apply to interfere with an award on damages as follows;

“an appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that a judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

Having considered the rival submissions and past decided cases, I am satisfied that the award made by the trial magistrate is not excessive. The same should not therefore be disturbed.

13) In the end, the appeal is found to be without merit. It is dismissed with costs to the respondent.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

................................................. for the Respondent