[2010] KEHC 1312 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Civil Appeal 27 & 11 of 2005 & 2003

RISHI HAULIERS LIMITED:::::::::::::::::::::::::: APPELLANT

~VRS~

MOSES JUMA OKUBI:::::::::::::::::::::::::: 1ST RESPONDENT

MUMIAS SUGAR CO. LTD.:::::::::::::::::::::::::: 2ND RESPONDENT

JUDGMENT

The Appellant Rishi Hauliers Ltd appeals against the judgment of Mumias Senior Resident Magistrate. The 1st Respondent had sued the Appellant Rishi Hauliers Ltd and the 2nd Respondent – Mumias Sugar Co. Ltd for compensation for injuries sustained in the course of his work as he offloaded sugarcane. The court found the 1st Respondent 10% liable, the Appellant 40% and the 2nd Respondent 50%. The general damages awarded to the 1st Respondent was Ksh.450,000/=.

The Appellant faults the magistrate for apportioning it 40% liability which according to it was not supported by the evidence on record. Mr. Olando argued that there was no evidence to show that the Appellant was negligent and that apportionment ought to have been done between the 1st and 2nd Respondents. The appellant argues that the damages awarded was excessive given the minor nature of the injuries sustained.

Mr. Namatsi for the 1st Respondent and Mr. Makokha for the 2nd Respondent opposed the appeal. Both argued on similar grounds that the manager of the Appellant (DW1) who gave instructions as to the machine to be used for offloading. The court gave its reasons for apportioning liability the way it did according to the Respondents. It was further argued that the damages awarded matched the injuries sustained.

The evidence of the 1st Respondent was that on7/10/2001he was working as a driver of the appellant transporting sugarcane to Mumias Sugar Company Ltd. The tractor carrying the cane belonged to the Appellant. On reaching the factory, DW1 the supervisor of the 1st Respondent and an employee of the Appellant instructed the 1st Respondent to offload the cane quickly using the Comeco and go back to the farm. As the 1st Respondent was removing the chain from the load, the Comeco landed on the cane to offload causing some cane stacks to fall on the 1st Respondent injuring him. The 1st Respondent testified that normally, a crane is used to offload the cane but it is DW1 who instructed him to use the Comeco. It was explained that the Comeco operator ought to wait for the chain to be untied before the machine is released to offload. The operator who was an employee of the 2nd Respondent released it before the 1st Respondent finished untying the chain.

DW1 testified that when the 1st Respondent brought the cane load, DW1 instructed him to offload quickly and go back to the farm to enable them to close at6. 30 p.m. DW1 learnt soon afterwards that the 1st Respondent had been injured. DW1 faults the 2nd Respondent for the incident leading to injury on the 1st Respondent.

DW2 an employee of the 2nd Respondent was the operator of the Comeco. He testified that on the material day, he was operating Comeco registration number KAJ 562S when a tractor came with loose cane. DW2 was given a signal to offload the tractor using his machine by the wrong person instead of the 1st Respondent who was the driver. The person who wrongly signaled him ran away from the offloading bay. The 1st Respondent was injured by stacks of the sugar cane which fell on him when the Comeco was released. DW2 had not even seen the Plaintiff before he was signaled.

The magistrate apportioned 10% liability to the Plaintiff and50% to the 2nd Respondent. Both parties were satisfied with the apportionment. The Appellant was aggrieved by the 40% liability slapped on him. The reason given by the magistrate for the share of liability for the Appellant was that it is the Appellant who insisted that its employee (1st Respondent) uses the Comeco instead of the crane which is normally used to offload. It is not disputed that DW1 the employee of the Appellant instructed the 1st Respondent to use Comeco so that he could offload quickly and return to the farm. However, the court failed to ascertain the cause of the incident which led to the injury on the 1st Respondent. A conclusion can be drawn from the evidence on record that the Comeco was in good mechanical condition and what can be faulted is the manner in which it was operated. If it was operated in the correct way and with due care and attention, the 1st Respondent would not have been injured. DW2 owned up that he released the machine to offload before the driver of the tractor finished untying the chain. The reason he gave was that he was given a signal by a man whom he does not know and who is not an employee of the 2nd Respondent. DW2 also confirmed that the signal is supposed to be given by the driver of the tractor. In this case, the driver was the 1st Respondent and DW2 confirmed that he (1st Respondent) had not given any such signal. The blame therefore entirely lies on the 2nd Respondent who is vicariously liable for the acts of its employee. The magistrate’s finding on apportionment of liability to the Appellant was not supported by any evidence. No particulars of negligence attributed to the Appellant were proved by the 1st Respondent. I am satisfied that the apportionment was based on wrong principles. I hereby substitute it with 10% against the Plaintiff and 90% against the 2nd Respondent. The Appellant is hereby discharged from liability. The appeal therefore succeeds.

On quantum, the doctor’s report confirmed that the Plaintiff suffered only soft tissue injuries on the head, chest, back, shoulder and right hip joint. There was no evidence of dislocation of the right hip.

The damages awarded are not in my opinion manifestly excessive and I do not wish to disturb the magistrate’s award.

Each party to meet its own costs of the appeal.

F. N. MUCHEMI

JUDGE

Judgment dated and delivered on the 12th day of October 2010 in the presence of Mr. Wattanga for the 2nd Respondent.

F. N. MUCHEMI

JUDGE