[2022] KEHC 12378 (KLR)

Real Careers Limited v Chepkwony (Civil Appeal 397 of 2018) [2022] KEHC 12378 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12378 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 397 of 2018

DO Chepkwony, J

June 17, 2022

Between

Real Careers Limited

Appellant

and

Benard Chepkwony

Respondent

(Being an Appeal from the Judgment and decree of the Chief Magistrate’s court at Milimani commercial court delivered on the 19th day of August 2018 by the Honourable Senior Resident Magistrate N. A. Makau (MS) in CMCC NO. 1197 of 2017)

Judgment

Background 1. The background of this appeal is that on February 27, 2017, the respondent filed a suit against the Appellant vide a plaint dated February 27, 2017seeking for general and special damages for pain, suffering and loss of amenities for serious injuries sustained while in the course of employment with the Appellant.

2. The Respondent was an employee working with the Appellant and on July 12, 2016while in the course of his employment with the Appellant while operating a tissue machine he noticed that there was some waste material stuck in the machine, he pressed the emergency break to stop the machine to enable him remove the waste material and as he was removing the said material, the machine suddenly set in motion and it severely cut his right thumb and he suffered loss and damages.

3. The Respondent stated that as a result of the aforedsaid accident he sustained injuries of crushed injury to the right thumb, suffered 5% permanent incapacity and severe pains, mental anguish and discomfort.

4. From the medical report by Dr. Cyprianus Okoth Okere, the Respondent suffered severe harm which were crushed injury to the right thumb. From the evidence presented at trial, the Respondent was treated as an outpatient and degree of permanent incapacity was assessed at 5%.

5. Further the Respondent had pleaded and proved special damages of Kshs.6,500. 00 being Kshs.1,500. 00 paid for the medical report and Kshs.5000. 00 paid for Doctor’s court attendance fees.

6. The matter proceeded for full trial and the Respondent called 2 witnesses who testified while the Appellant did not call any witness. The learned trial Magistrate delivered judgment on August 10, 2018in favour of the Respondent to tune of Kshs.150,000/= being special damages of Kshs.5,000/= plus costs and interest of the suit.

7. The Appellant being dissatisfied with the decision initiated this appeal vide a Memorandum of appeal dated August 24, 2018 filed in court on August 27, 2018citing the following grounds of appeal;1. That the Learned Magistrate erred in law and in fact in finding the defendant liable in negligence even though the defendant was not doing the work he was employed to do.2. That the award is abnormally high.It is proposed to ask the court for the following orders that:-1. The appeal be allowed with costs2. The judgment and decree of the Chief Magistrate’s Court Nairobi (Milimani Commercial Court) be set aside.3. The cost of the appeal be awarded to the Appellant.

8. The appeal was amended vide amended Memorandum of Appeal dated September 22, 2020 to include the following grounds of appeal;1. That the Learned Magistrate erred in law and in fact in finding the defendant liable in negligence even though the defendant was not doing the work he was employed to do.2. That the award is abnormally high.3. That the Learned magistrate erred in law and fact in failing to find that the respondent was doing work that he was not authorized to do.4. That the Learned magistrate erred in law and fact in failing to find that the respondent was a General Laborer and not a machine operator.5. That the Learned magistrate erred in law and in fact in failing to grant an adjournment to the Appellant.

9. On October 14, 2021 this court issued directions that the appeal be canvassed by way written submissions. The Appellant filed its submissions on November 3, 2021 while the Respondent filed his on January 22, 2022.

Appellant’s Submissions 10. The Appellant’s in support of the appeal filed written submissions are dated November 3, 2021. Counsel raised two issues in his submissions which are whether the Appellant has demonstrated sufficient grounds to warrant grant of the orders sought and what are the appropriate orders.

11. On the first issue, the Appellant submitted that the respondent was injured at work and he blamed the Respondent wholly for the injuries sustained for the accident. By his pleadings the Respondentstated that he was operating a tissue machine.

12. In his defence, the Appellant stated that the respondent was not authorized to operate any machine as he was a general worker, this position of the Appellant is supported by the DOSH form that was filled out and sent to the county occupational safety and Health Officer and it shows that the respondent was employed as a general worker. The respondent was thus operating a machine and was not authorized to operate.

13. The Appellant submitted that it was a human resource provider to Twiga Stationers where the respondent worked and thus the machine and premises did not belong to the Appellant. It was further submitted by the Appellant that under the Occupation, Safety andHealth Act, it is the owner of the premises and the machine that caused the injury to the Respondent and thus the Respondent sued the wrong party.

14. The Appellant referred this court to the provisions of Section 2, 6, 11 and 13 all of the Occupational Safety and Health Act. They also relied on the case of Statpack Industries –vs- James Mbithi Munyao [2005]eKLR where the court pronounced itself as follows,“Similarly, in Cummings (or Mc Williams) v Sir Willian Arrol (1962) 1 AER 623 the House of Lords held that even assuming the defendants were in breach of their duty in not providing a safety belt to their deceased employee, nevertheless they were not liable in damages because their breach of duty was not the cause of the damage suffered.”The employer was not liable to the respondent because the duty to provide a safe working environment was that of the occupier who was not sued.

15. As regards the second issue of what appropriate orders should issue, the Appellant submitted that the Respondent suffered 5% permanent damage. The appropriate orders are to set aside the award of the Judgment of the lower court with costs. But if the court is inclined to find in favour of the Respondent, then they opined that Kshs.100,000/= would be sufficient as the injury will not in any way affect the respondent in his future earnings.

Respondent’s Submissions 16. In opposition to the appeal, the Respondent l filed submissions dated January 21, 2022. He submitted that he filed a Plaint dated February 27, 2017 seeking for general damages for pain, suffering and loss of amenities and special damages. The suit was heard on 19th April, 2018 and Judgment delivered on 10th August, 2018 in favour of the Respondent. The court awarded the Respondent a total sum of Kshs.155,000/= being general damages of Kshs.150,000/= and special damages of Kshs.5,000/= plus costs.

17. The Respondent submitted that it was his evidence before the trial court that he was an employee of the Appellant working as a general labourer stationed at Twiga stationers. The Respondent informed the court that his duties were to do any work assigned to him and he had been assigned the task of operating a tissue paper machine. The machine malfunctioned and set itself in motion hence crushing his right thumb and as a result he suffered severe injuries to his right thumb.

18. The Respondent blamed the Appellant for the accident for failing to provide him with a safe secure work environment, failing to provide him with protective gloves, failing to take measures for his safety and exposing the respondent to the risk of injury. The Respondent submitted that the Appellant were grossly negligent in light of the nature of the Respondent’s work, the dangers involved in performing his tasks and the responsibility of Appellant to provide its employees with a safe means of doing their tasks and not exposing them to the risk of injury.

19. It was the Respondent’s submissions that during the hearing, the Appellant did not file any witness statement or bundle of documents and neither did they adduce any evidence in court in support of their defence, hence the Respondent’s evidence was unchallenged. Accordingly, the learned Magistrate found and held the Appellant 100% liable for the accident. The respondent asked the court to uphold the lower court’s decision.

20. On the issue of the award of general damages for pain, suffering and loss of amenities, the Respondent suffered serious injuries that resulted in crush injury to the right thumb, 5% permanent incapacity, severe pains, mental anguish and discomfort. The injuries were confirmed by the medical report produced by Dr. Cyprian Okoth Okere dated December 16, 2016 and Part II of the DOSH form filled from Kenyatta National hospital.

21. The Respondent relied on the case of Henry H. Ilanga v M. Manyoka (1961) EA at pg 713… The appellate court “must be satisfied that either the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account an irrelevant factor or leaving out some relevant one); or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damage.”

22. The Respondent in the lower court sought Kshs.300,00/= as general damages for pain, suffering and loss of amenities while relying on the case of Kennedy Mutinda Nzoka v Bosco Product(Kenya) Limited Industrial Court Cause No.98 of 2011 in which the trial court awarded Kshs.210,00/= for fracture of the middle phalanx of the right index finger resulting in 2% permanent incapacity.

23. In view of the cited authorities which are quite old and taking into account the issue of inflation, it is the Respondent’s contention is that the lower court’s assessment and award of quantum was not inordinately high. That infact the learned Magistrate’s award of Kshs.150,000/= was quite low taking into account the issue of inflation and the 5% permanent incapacity the respondent suffered.

24. The Respondent submitted that there was no fault in the manner the lower court arrived at the issue of liability but holding the Appellant 100% liable. The award of Kshs. 150,000/= general damages were in no way inordinately high and this Court should make a finding that the appeal lacks merit and should be dismissed with costs to the Respondent.

Analysis and Determination 25. I have considered the appeal, the written submissions filed by both parties in support and in opposition to the appeal and the authorities relied upon by counsel.

26. This being a first appeal this Court has a duty to evaluate the evidence submitted before the trial court afresh before drawing its own inference. This was the position stated by the court in the case of Selle & Another v Associated Motor Boat Co. Ltd. & Others [1968] EA 123 that:“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”

27. The Respondent called Dr. Cyprian Okoth as PW1 who testified that on December 16, 2016 he examined the Respondent, Bernard Chepkwony a manual worker. He confirmed that he had a crushed injury to the right arm which he classified as grievous harm and had sustained 5% incapacity. Dr. Cyprian Okoth referred to medical notes from Kenyatta National Hospital and prepared a medical report.

28. The Respondent, Bernard Chepkwony, testified as PW2 and adopted his witness statement dated February 27, 2016 as his evidence in chief. He stated that he was working for Real Careers Ltd at their Twiga Stationers as a general labourer. He was assigned to operate a machine. He stated that he sustained injury on the right thumb and was treated at Kenyatta National Hospital and discharged. He went on with treatment at Kenyatta National Hospital and was thereafter issued with a Doshi form. He also testified that the machine that injured him was not in good condition as its emergency brake was not in order. He had only been supplied with an apron, ear plugs and needed gloves which were not supplied to him. He stated that he had been told the emergency brake was faulty. He blames the company for failing to give him gloves and did not ensure the machine was well serviced. The respondent asked the court to order the defendant to compensate him for pain and suffering and costs of the case.

Analysis and Determination 29. Upon perusal of this appeal and the submissions filed by both parties herein, there are two issues for this court to determine, that is, the issue of liability and that of quantum of damages.

30. As regards the first issue of liability, the appellant submitted that it was only a human resource provider to Twiga Stationers where the Respondent worked and thus the machine and the premises did not belong to the Appellant. The Appellant contended that under the Occupation, Safety and Health Act, it is the owner of the premises and the machine that caused injury to the Respondent who were to blame for the injuries the Respondent sustained. Further, the Appellant also blamed the Respondent for the injuries sustained as he was operating a machine which he was not authorized to operate.

31. On the part of the Respondent, he submitted that he blames the Appellant for the accident for failing to provide a safe working environment, protective gloves and thus grossly negligent in light of the Respondent’s work. The Respondent further submitted that the Appellant did not call any witness to challenge his evidence and thus it was uncontroverted.

32. The learned trial Magistrate in its Judgment made the following observation: -“On the second issue, whether the defendant was to blame for the injuries, the defendant entered appearance and filed a statement of defence. It denied any negligence and blamed the plaintiff for having been negligent in performing his duties. The plaintiff demonstrated he was working for the defendant on the date of the accident and was injured in the course of a duty assigned to him by the defendant’s agent. The defence availed no witness to give its side of their story or substantiate the particulars of negligence on the part of the plaintiff. Its defence remains a mere statement. The court entered judgement on liability for the plaintiff against the defendant at 100%.”

33. The court took a similar position in the case of Edward Muringa v Nathaniel D. Schulter Civil Appeal No.23 of 1997 and observed as follows;“In this matter, apart from filing its statement of defence, the defendant did not adduce any evidence in support of assertions made therein. The evidence of the first plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains allegations…sections 107 & 108 of the Evidence Act are clear that he who asserts or pleads must support by way of evidence. The liability of an employer towards his employee attaches once an employee is injured in the course of employment as a result of failure to ensure the duty of care expected from the employer. The plaintiffs evidence has not been controverted by the defendant. In the premises, I find and hold the defendant liable at 100%.”

34. The law imposes a statutory obligation upon employers to ensure safety at the work place. Section 3 of the Occupational Safety and Health Act, (Cap 514 of the laws of Kenya) provides as follows;“(1)This Act shall apply to all workplaces where any person is at work, whether temporarily or permanently.(2)The purpose of this Act is to: -a)Secure the safety, health and welfare of persons at work; andb)Protect persons other than persons at work against risks to safety and health arising out of, or in connection with, the activities of persons at work.”

35. Section 6(1) and (2) of the Occupational Safety and Health Act outlines the duties of an occupier and states as follows;“(1)Every occupier shall ensure the safety, health and welfare at work of all persons working in his workplace.(2)Without prejudice to the generality of an occupier’s duty under subsection (1), the duty of the occupier includes: -(a)The provision and maintenance of plant and systems and procedures of work that are safe and without risks to health;(b)Arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;(c)The provision of such information, instruction, training and supervision as it is necessary to ensure the safety and health at work of every person employed;(d)The maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and agress from it that are safe and without such risks to health;(e)The provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employees welfare at work;(f)informing all persons employed of—i.any risks from new technologies; andii.imminent danger; and(g)ensuring that every person employed participates in the application and review of safety and health measures.

36. The court of appeal in the case of Purity Wambui Muriithi v Highlands Mineral Water Co. Ltd [2015]eKLR, stated that;Section 6(1) of the Occupational Safety and Health Act provides: -“Every Occupier (employer) shall ensure the safety, health and welfare at work of all persons working in his workplace.”

37. Based on the foregoing, it is clear that the law imposes liability on the employer for any injury or loss that occurs to his employees while at the workplace as a result of the employer’s failure to ensure their safety. The law also provides for limitations on the liability of an employer as it would be unfair to hold the employer liable for conduct that is as a result of the employees own negligence.

38. Section 13(1) (a) of the Occupational Safety and Health Act provides that;“Every employee shall, while at the workplace-(a)ensure his own safety and health and that of other persons who may be affected by his acts or omission at the workplace.Therefore, the employee is also required to take reasonable precaution to ensure his/her safety at the workplace while performing his/her duties”

39. In the instant appeal before court, the Respondent testified that his duties were to do any work assigned to him and on the material date he had been assigned to operate a tissue paper machine. He went further to state that the machine malfunctioned and set itself on motion thereby crushing his right thumb and as a result suffered severe injuries. The Respondent blamed the Appellant for the injury suffered for failing to provide its employees with a safe means of doing their tasks and infact the Respondent did not have gloves thereby exposing his to risk of injury.

40. The Appellant failed in its duty by not providing the respondent with protective gear such as gloves therefore exposing him to risks of injuries such as the one he sustained.

41. In conclusion therefore, the Appellant did not discharge his mandate as required of it by the law and as such, the injuries sustained by the Respondent are as a result of its negligence.

42. On the issue of quantum of damages, the Respondent in his Plaint dated February 27, 2017 pleaded for general damages, special damages of Kshs.6,500/=, costs and interests. The Respondent was examined by Dr. Cyprian Okoth Okere who assessed him and prepared a medical report and placed the permanent disability of the Respondent at 5%.

43. The Respondent had proposed a sum of Kshs.300,000 as adequate compensations for the injuries sustained by the Respondent. On the other, the Appellant had proposed a sum of Kshs.100,000/=. The trial court awarded the Respondent Kshs.150,000 for general damages.

44. The Appellant has urged this Honourable Court to set aside the award as the same is inordinately high. According to Appellant, if the court is inclined to find in favour of the Respondent they opined that a sum of Kshs.1o0,000/= would be sufficient compensation to the Respondent. The Respondent on the other hand has submitted that the award should not be disturbed as the trial court took into consideration the nature of the injuries sustained and took into account the issue of inflation.

45. The Court of Appeal in the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR set out the parameters under which an appellate court will interfere with an award in general damages when it held:-“‘An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the 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...’

46. The Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR stated that;“In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exact.”

47. Having considered the authorities relied on by both counsel on the issue of quantum, I am persuaded that the assessment by the trial court was commensurate with the injuries sustained by theErespondent. I therefore uphold the same.

48. From the foregoing, I find that the Appellant was rightly held 100% liable for the accident and damages awarded do not call for any interference as they are supported by the evidence and authorities cited. In conclusion, I find the appeal is not tenable and is dismissed with costs to the Respondent.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JUNE, 2022D. O. CHEPKWONYJUDGE