[2006] KEHC 2194 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Civil Appeal 6 of 2003

SAMSON EMURU…………………….............................................……………APPELLANT

VERSUS

OL SUSWA FARM LTD……………….........................................…………..RESPONDENT

J U D G M E N T

This is an appeal from the Judgment of the Resident Magistrate in Naivasha Civil CaseNo.214 of 2002 given on 28th November, 2002 (L.K. Mutai). Judgment was entered for the respondent in the sum of Kshs.300,000/- less 5% contributory negligence leaving a balance of Kshs.285,000/- with costs and interest.

The appellant being dissatisfied with the above Judgment has appealed to this court.

In the Memorandum of Appeal, the appellant raised four grounds of appeal but during the hearing of the appeal Counsel for the appellant abandoned the 4th ground of appeal and relied on three grounds of appeal namely:-

1. The learned trial magistrate erred in Law and

in fact in holding the Appellant liable at 95%

when the evidence on record adduced by the

Respondent himself failed totally to sow in

which way the Appellant was negligent and

did not support the particulars of negligence

pleaded at all.

2. The learned Magistrate erred in Law and in

Fact the Appellant liable, in the light of the

documentary evidence adduced which

showed hat the Respondent was to blame for

the accident.

3. The learned trial Magistrate erred in not ascri-

bing full negligence to the Respondent as availa-

ble evidence of the alleged accident indicated

that the Respondent was the Principal author of

the accident and the learned trial Magistrate’s

finding on the key issue of negligence was biased

and totally unsupported and has resulted in mis-

carriage of justice.

In the case that gave rise to this appeal, the Respondent claimed that on the 6th day of May,2002, the Respondent who was an employee of the appellant in the normal course of his employment of making animal feed using a mill, the appellant provided him with unsafe system of work, that caused him to slip and as a result his right hand fell into the mill thereby occasioning him serious bodily injuries.

The particulars of negligence by the appellant were cited as follows:-

a) Requiring the plaintiff to work in an unsafe place.

b) Providing inadequate supervision at work.

c) Providing an unsafe system to work under.

d) Failing to service the mill.

The particulars of injuries suffered by the Respondent as a result of the said injury was an amputation of the right hand at the wrist joint.

After a full hearing, Judgment was entered for the Respondent as stated above.

I now wish to consider and evaluate the several issues that were canvassed before this court.

Negligence

First, Counsel for the appellant argued that the learned trial Magistrate erred by not awarding a higher proportion of liability on the Respondent. The Respondent admitted that he knew he was stepping on waste and therefore this was enough cause for the Respondent to shoulder a higher percentage of blame than 5%.

According to the evidence, the Respondent was operating the machine when the accident occurred, there was dirt that had accumulated next to the machine and as at the time the accident occurred the Supervisor Bernard Wambua, PW2 had gone to assist in another site that he was also supervising. It was argued by Counsel for the Respondent that the appellant had a common law duty of care of his employee. The appellant had a duty to provide a safe place of work and as stated in the Textbook byCharlesworth on Negligence 4th Editionpage1036:-

“the duty of employers to provide the servant

with a safe place of work not merely to warn

against unusual dangers known to them,… but

also to make the place of employment… as

safe as the exercise of reasonable skill and case

would permit…The duty thus described is a

higher…the master is under a duty to make

his servants to take reasonable steps to avoid

harm arise…”

The point that was raised which is of relevance to the above is “who was to blame for the accident.”

According to the evidence by the Defence, Samuel Enduny, DW1 said the appellant was to blame for the accident. During cross-exami-nation this witness said:-

“I blame the defendant for the accident. The

Plaintiff had the experience and he had been

allowed by the defendant to run the machine…

Our supervisor was Wambua. He was alloca-

ting duty he had left the scene at the time of the

accident.”

Bernard Wambua, DW2 blamed the Respondent for the accident.

He claimed he did not allocate him the duties of working with the machine. The issue of whether the Respondent allocated himself duties against the authority of his Supervisor and the appellant was not pleaded by the appellant in the defence. The particulars of the Respondent’s negligence as stipulated in the defence, does not at all indicate that the defendant was not allocated the duties he was undertaking when the injuries occurred.

In any event the evidence of DW2 is contradicted by that of DW1 who state that it is normal for the Respondent to operate the machine and assisting each other was not illegal. The Supervisor knew that it was normal for workers to assist each other.

The provisions of Order VI Rule(3)(4) clearly spell out the formal requirements of matters that must be pleaded. Failure to plead this aspect, the appellant therefore failed to notify the other side and thus took the Respondent by surprise.

The importance and object for ensuring that the pleadings provide a brief summary of the case of each party is also articulated in the Text book by Bullen and Leake and Jacob’s12th Edition page 8.

“As the parties are adversaries, it is left toeach of them to formulate his case in hisown way, subject to the basic rules ofpleadings…For the sake of certainty and finality, eachparty is bound by his own pleadingand cannot be allowed to raise a differentor fresh case without due amendmentproperly made.”

On this issue raised by the appellant which was not pleaded, I am of the view it was an afterthought and an ambush on the part of the respondent.

As regards the issue of apportionment of liability, the principles upon which the appellate can interfere with the decision of the trial court are well settled in various Court of Appeal decisions. (See the case of KARANJA –VS- MALELE [1983] KLR page 142).

“Apportioning of blame represents an exerciseof discretion with which this court will interfereonly when it is clearly wrong or based on noevidence or on the application of a wrongprinciple.”

Similarly on the issue of assessment of damages the principles are well settled, although it would appear the appellant abandoned he fourth ground of appeal. Thus I find the trial court properly considered the injuries suffered by the Respondent against the cases of comparable injuries. In any case:-

“An appellate court will not disturb an awardof damages unless it is so inordinately high orlow as to represent an entirely erroneousestimate.

It must be sown that the Judge proceeded on wrong

principles, or that he misapprehended the evidencein some material respect, and so arrived at a figurewhich was inordinately high or low.”

(See the case of Butt -Vs- Knin [1982-1988]Vol. I KAR 1).

For the reasons stated above, the material that was presented before the trial court, clearly shows the respondent was lawfully employed, the appellant failed to provide him with a safe system and condition of work and supervision.

I am satisfied that the trial magistrate was right in apportioning the liability at the ratio of 95% to 5%.

This appeal fails. It is accordingly dismissed with costs.

It is so ordered.

Judgment Read and Signed on 28th April, 2006.

MARTHA KOOME

JUDGE

28. 4.2006