[2010] KEHC 668 (KLR)

REPUBLICOFKENYA

IN THE HIGH COURT AT BUNGOMA

CIVIL APPEAL NO.72 OF 2007

(Appeal arising from original MMS SRM CC No.114 of 2006)

MUMIAS SUGAR CO. LTD::::::::::::::::::::::::: APPELLANT

~VRS~

PATRICK AMAMU SAKA:::::::::::::::::::::::: RESPONDENT

JUDGMENT

The Appellant Mumias Sugar Co. Ltd appeals against the judgment of the Senior Resident Magistrate, Mumias. The Respondent’s claim was that of damages for injury sustained in the course of his duties as he worked for the Appellant. The court apportioned liability at 70:30 against the Defendant and the Plaintiff respectively. The magistrate awarded Ksh.60,000 general damages and Ksh.1,500/= plus costs of the costs of the suit.

The Appellant in his grounds of appeal faults the judgment of the court on grounds that it found contrary to the evidence that the Defendant was to blame partly for the accident. There was no proof of an employment contract between the parties and thus no contractual duty to provide protective clothing. The Appellant also argued through his counsel Mr. Wattanga that the damages were excessive and that the provisions of the Factories Act Cap 514 as to protective clothing were wrongly applied by the court.

The Respondent opposed the appeal. Mr. Luchivia argued for the Respondent that the claim was brought under common law, not under the provisions of the Factories Act as alleged. The Appellant was under a contractual duty to supply protective gear to the Respondent. The damages awarded were not excessive.

The Respondent testified that he injured himself as he cut cane at Hamulunga where he worked as a cane cutter for the Appellant. He reported the matter to the supervisor one Andrian Makokha. Treatment was given at the hospital and later at Matungu Health Centre. A medical report by Dr. Nyamoga was produced. The respondent blamed the appellant for failing to provide him with protective clothing.

The Defendant called one witness who said that he would not know whether the Plaintiff was at work on the material day. He said the appellant provides workers with gumboots and that the treatment notes were not genuine.

From the evidence, the Respondent said he was an employee of Mumias Sugar Company (Appellant) since 1973. Although he did not produce a written contract of employment, he produced payslips. That evidence was not controverted by that of the defence witness DW1. DW1 on cross-examination said he worked in the Agricultural section and did not know about payslips. The Appellant ought to have called a human resource or salary section personnel to controvert the evidence of the Plaintiff on employment and the payslips. DW1 only said that he could not tell whether the Respondent was on duty on the material day. The company has records of employees and has duty attendance registers and treatment referral records. The Appellant ought to have produced such records to controvert the Respondent’s evidence. In the absence of any cogent defence by the Appellant, the Respondent’s evidence remains uncontroverted. The court correctly found that the Respondent had proved that he was an employee of the Appellant. I find no evidence to support the allegation that the burden of proof was shifted to the Appellant.

The Respondent blamed the Appellant for the accident when he said:

“ I blame the company because I was not given gear like boots.”

It cannot therefore be argued that the Appellant was not blamed. As an employer, the Appellant has a contractual duty under common law to provide a safe working environment and systems to his employee. This is an implied term of the contract imposing a legal duty on the Appellant. The nature of duty of a sugarcane cutter is such that he is exposed to hurting himself with the cane cutting tool on the legs, hands or any other part of the body. The Appellant had a legal duty to provide protective gear including hand gloves and boots. An employee must not be working in a factory in order to be provided with protective clothing. The provisions of the Factories Act were not invoked herein. The claim is a common law one of negligence and breach of contract.

DW1 said that the company provided workers with protective gear. However, he produced no records to show that the Plaintiff was allocated with boots or any other protective clothing.

In his plaint the Respondent alleges negligence against the Appellant under common law. The Respondent has established that the Appellant exposed him to risk by failing to provide a safe working environment and by omitting to provide protective gear. Had the Respondent worn boots, the injury on his toe would not have occurred.

The magistrate attributed part of the negligence on the Respondent and condemned him to bear 30% liability. The Respondent was satisfied with this finding because he did not appeal against it. However, I find that it was based on the wrong principles. The fact that the Respondent had worked for the appellant for over 30 years and had never hurt himself did not form a legal basis for condemning him to bear liability during that one incident when he was hurt. The apportionment of liability was therefore wrong.

I have looked at the decision of my brother Judge H. Waweru that it is not necessary to provide a sugarcane cutter with protective clothing. I beg to differ with that decision. A sugar cane worker is exposed to risk in his job where he is using a sharp panga or a sharp cane cutter. The employer is under a duty to mitigate those risks by providing protective gear. This is notwithstanding that the sugarcane cutter has a duty to take care of himself as he carries on his duties.

I am satisfied that the magistrate’s court correctly found that the Respondent had proved his case on the balance of probabilities against the Appellant. I set aside the apportionment of liability of 70:30 between the parties and find the Appellant fully liable.

I have looked at the medical report of Dr. Nyamogo. The cut on the left big toe was the only injury sustained. The injury healed well within a short period. The award of Ksh.60,000/= was on the higher side in the year 2007 when the case was determined. I set aside the award and substitute it with Ksh.30,000/=. The special damages award of Ksh.1,500/= remains undisturbed. The Appellant will pay the costs of this appeal and those of the lower court.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 2nd day of November, 2010. In the presence of Mr. Wattanga for the Appellant and Mr. Luchivia for Kulecho for the Respondent.

F. N. MUCHEMI

JUDGE