[2010] KEHC 1629 (KLR)
The court found that the appellant failed to traverse the respondent's allegations of negligence and lack of authority to operate the chaff cutter machine. Under the Civil Procedure Rules, this failure amounted to an admission of those facts. The appellant did not establish that he was employed as a machine operator...
Source-derived case information.
- Citation
- [2010] KEHC 1629 (KLR)
- Parties
- Appellant: Peter Maina Waigwa; Respondent: Kamau Thuku Gakere
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 203 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Employer Liability, Workplace Injury, Pleadings and Traverses, Negligence, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Maina Waigwa
Appellant
Kamau Thuku Gakere
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was employed by the respondent and authorized to operate the chaff cutter machine.
- 2 Whether the respondent was negligent in permitting the appellant to use an unfenced dangerous machine.
- 3 Whether the appellant contributed to his own injury by operating the machine without training or authority.
Ratio Decidendi
The court found that the appellant failed to traverse the respondent's allegations of negligence and lack of authority to operate the chaff cutter machine. Under the Civil Procedure Rules, this failure amounted to an admission of those facts. The appellant did not establish that he was employed as a machine operator or that he was authorized to use the machine. The trial magistrate was correct in holding that the appellant had no business operating the machine and that the respondent could not be held liable for the injury. The appeal was therefore dismissed on the basis that the appellant's pleadings and evidence did not support his claim, and the legal requirements for establishing...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 203 of 2002
(An appeal from the judgment of Mr. J. Kaburu Senior Principal Magistrate delivered on 15th October 2002 in Nakuru CMCCC No. 2952 of 1999)
PETER MAINA WAIGWA...................................APPELLANT
VERSUS
KAMAU THUKU GAKERE..............................RESPONDENT
JUDGMENT
This is an appeal against the judgment of the Senior Principal Magistrate delivered on
15th October 2002in Nakuru CMCC No. 2952 of 1999.
In that case the appellant claimed that he was employed by the respondent at the latter’s farm at Marmanet.On or about 3rd April 1998 while the plaintiff was engaged in his duties of cutting nappier grass using a chaff cutter, his left hand was caught by the rotating part of that machine and severed at the wrist.He attributed his injury to the negligence of the defendant who permitted him to use a dangerous machine which was not fenced as required by law.
On his part the respondent denied employing the appellant and the negligence attributed to him.He further averred that the appellant wholly or partly contributed to his own misfortune in that he went using the defendant’s chaff cutter machine with the defendant’s knowledge or authority and without first being trained to use it.The appellant did not traverse those averments.
After hearing the case the learned trial magistrate dismissed the appellant’s claim holding that as a farm hand, the appellant’s duties were cultivating, ploughing and weeding and that he had no business operating a machine which had nothing to do with the farm.He said if he had found for the appellant he would have awarded him Kshs.300,000/- general damages and Kshs.2,500/- special damages.This appeal is against that finding on liability.
It is not in dispute that the appellant did not traverse the respondent’s allegations of negligence on his part.Mr. Kurgat for the respondent urged me to deem the appellant as having admitted those allegations and dismiss this appeal.On his part Mr. Ikua for the appellant submitted that Order 6 Rule 9(1) of the Civil Procedure Rules is not absolute.
I have considered these submissions and read the record of appeal.
Both in his plaint and evidence in court, the plaintiff did not say in what capacity he was employed.He did not say he was employed as a machine operator.As I have said he did not traverse the allegations in the defence.A traverse is a formal denial of a factual allegation made in the opposite party’s pleading.In this case the appellant did not deny the respondent’s averment in the defence.That he was not authorized to operate the chaff cutter machine.The Order 6 Rule 10(1) declares that “If there is no reply to defence, there is a joinder of issue on that defence.”But that does not apply where there is a counter claim.Sub-rule (3) of Rule 10 makes that quite clear.“There can be joinder of issue on a plaint or counterclaim.”A counterclaim as we know does not on comprise a claim for relief asserted against an opposing party after an original claim has been made but also includes the defendant’s claim in opposition to or as a set-off against the plaintiff’s claim.[HERE DEAL WITH
C.A.DECISION INMOUNT ELGONHARDWARE LTDF CASE]
The respondent should not even have been allowed to lead that evidence.It is trite law that each party is bound by his pleadings.It is not sufficient for a defendant to generally deny, in his statement of defence, the plaintiffs.He must deal specifically with each allegation of fact of which he does not admit the truth.Every allegation of fact in the plaint will be taken to be admitted if it is not denied specifically or by necessary implication.
[HERE GO 50% AFTER READING FACTORIES ACT AND RELATED MATERIAL]THEN COMPLETE.
DATED and DELIVERED this 20th day of July, 2010.
D. K. MARAGA
JUDGE.