[2022] KEHC 10137 (KLR)

Sinohydro Corporation Limited v Wanjala (Civil Appeal 370 of 2018) [2022] KEHC 10137 (KLR) (Civ) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10137 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 370 of 2018

JK Sergon, J

July 1, 2022

Between

Sinohydro Corporation Limited

Appellant

and

Martin Wanjala

Respondent

(Being an appeal from the judgment and decree of Honourable E. A. Nyaloti (Mrs.) (Chief Magistrate) delivered on 5th April, 2018 in MILIMANI CMCC no. 6524 of 2014)

Judgment

1. Martin Wanjala who is the respondent in this instance lodged a suit against the appellant vide the plaint dated 23rd September, 2016 and sought for general and special damages totaling the sum of Kshs.6,500/= together with costs of the suit and interest on the same.

2. The respondent pleaded in his plaint that he was at all material times an employee of the appellant and that sometime on or about the 4th day of July, 2016 while working at the appellant’s premises in the lawful course of his employment and in the company of his colleagues undertaking the offloading of a heavy container from a trailer using a mobile crane, the respondent was suddenly hit by electric shock from a live electric wire passing over the offloading site, causing him to sustain serious injuries which are particularized in the plaint.

3. The respondent attributed his injuries to negligence and/or breach of the appellant’s contractual and/or statutory duty of care by setting out their particulars in paragraph 6 of the plaint.

4. The appellant entered appearance on being served with summons and filed its statement of defence to deny the respondent’s claim.

5. At the hearing of the suit, the respondent testified and called a doctor, while the appellant closed the defence case without calling any witnesses.

6. Upon filing of written submissions by the parties, the trial court entered judgment in favour of the respondent and against the appellant in the following manner:Liability 100%a.General damages Kshs.500,000/=b.Special damages Kshs. 6,500/=Total Kshs.506,500/=

7. Being aggrieved by the trial court’s finding on both liability and quantum, the appellant has now lodged an appeal against the same by filing the memorandum of appeal dated 6th August, 2018 constituting the grounds hereunder:i.That the learned trial magistrate erred in law and fact in failing to make a finding that the appellant’s defence raises triable issues and further did not take into consideration the appellant’s evidence.ii.That the learned trial magistrate erred in law and fact by awarding a high amount in general damages.iii.That the learned trial magistrate erred in law and fact by finding that the respondent’s assessment of damages was correct.iv.That the learned trial magistrate erred in law and fact in failing to appreciate the evidence of the appellant on the circumstances of the accident and further not taking into consideration the award of damages.v.That the learned trial magistrate erred in law and fact in awarding liability to the respondent.vi.That the learned trial magistrate erred in law and fact and as a result arrived at a wrong decision to the prejudice of the appellant.

8. This court gave directions that the appeal be canvassed by written submissions. In its submissions on liability, the appellant argues that the trial court erred in finding it fully liable and yet it had demonstrated that it had provided the respondent with a safe working environment at all material times.

9. The appellant further argues that the respondent failed to prove the particulars of negligence pleaded in the plaint and cites among others, the case of Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR where the court determined that:“On question of proof, and burden thereof, it is stated in Charlesworth& Percy On Negligence, 9TH edition at P.387:-“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferior and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

10. On quantum, it is the submission by the appellant that the award made on general damages by the trial court is inordinately excessive and it is for that reason that the appellant urges this court to substitute the sum of Kshs.500,000/= with a more reasonable sum of Kshs.75,000/= upon citingEldoret Steel Mills Limited v Moenga Obino Josephat [2014] eKLR in which case the court awarded general damages in the sum of Kshs.75,000/= for comparable injuries.

11. The respondent through his submissions dated 20th May, 2022 contends that the trial court arrived at a correct finding on liability since he had brought sufficient evidence to demonstrate that the injuries sustained were the direct result of negligence on the part of the appellant who directed him to perform his duties despite awareness as to the live wire which was hanging on the appellant’s premises.

12. The respondent further contends that the appellant did not tender any documentary or witness evidence to rebut his evidence or to show that an apportionment of liability was appropriate and hence the trial court acted correctly in entering a finding of 100% liability against the appellant.

13. On damages, it is the submission by the respondent that the trial court entered a fair sum on general damages and makes reference to the case of Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] Eklr where the court awarded the sum of Kshs.500,000/= on general damages to a plaintiff who had sustained electric shock with lost consciousness for a period of about 15 minutes and electric burns on both forearms and hands and which injuries are comparable to those suffered in the present instance.

14. In view of the foregoing, the respondent urges this court to dismiss the appeal with costs and to uphold the decision by the trial court in the matter.

15. I have considered the rival submissions and authorities cited on appeal. This being a first appeal, I am enjoined to re-evaluate the evidence placed before the trial court.

16. It is noted that the appeal lies against both liability and quantum, specifically the award made under the head of general damages for pain, suffering and loss of amenities. I will therefore address the six (6) grounds of appeal under the two (2) limbs.

17. On the issue of liability, the respondent by way of his oral evidence before the trial court testified that on the material day, he was assigned the duty of offloading a container from a trailer using a mobile crane and that in the process of performing his duties while in the company of other employees, he was suddenly struck by an electric shock, resulting in serious injuries to himself and the death of one of his colleagues.

18. The respondent also testified before the trial court that an agent of the appellant filled the DOSH form on his behalf and which he produced as P. Exh 2.

19. The respondent stated that he blamed the crane driver for the accident since he did not exercise caution while lifting the container, which resulted in the crane touching the live electric wire.

20. It was the testimony by the respondent that the employer catered for his medical bills.

21. In cross-examination, the respondent testified that he had worked for the appellant for close to one and a half (1 ½) years prior to the accident.

22. The learned trial magistrate in arriving at her decision indicated that she was satisfied that the respondent had proved his claim against the appellant on a balance of probabilities.

23. Upon re-evaluating the evidence tendered before the trial court, it is apparent that the respondent was at all material times an employee of the respondent and that he was injured while in the ordinary course of his employment. This position was not challenged by way of any contrary evidence.

24. It is also apparent from the record that the appellant did not tender any documentary evidence or call any witnesses to show the steps taken by itself being the employer, to provide a safe working environment for its workers.

25. The above position is supported by the provisions of Section 6 (1) and (2) of the Occupational Safety and Health Act, Cap. 514 Laws of Kenya (“the Act”) which stipulates that it is the duty of an employer’s duty to provide a safe working environment, 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 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 egress 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; and(ii)imminent danger; and(g)ensuring that every person employed participates in the application and review of safety and health measures.

26. The above position was reaffirmed by the court in the case of Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] eKLR cited in the submissions by the respondent.

27. Going by the evidence set out hereinabove, it is apparent that the claim made against the appellant was essentially that of vicarious liability for the acts/omissions of its employee (the crane driver), who according to the respondent caused the live electric wire to go off and result in injuries to the respondent. As earlier noted, the evidence tendered by the respondent was not countered by the appellant by way of any contrary evidence.

28. I also note from the pleadings and material that the appellant did not tender any evidence to lay basis for apportionment of liability. The question of apportionment of liability was not advanced at the trial by way of evidence.

29. Upon my consideration of the pleadings and material both at the trial and on appeal, it is also worth mentioning that pleadings do not constitute evidence, which position counters the argument by the appellant on appeal that the learned trial magistrate overlooked its statement of defence when it did not adduce any evidence at the trial to substantiate the claims made in its pleadings.

30. The above position is reaffirmed in the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR in which the court rendered that:“That averments in pleadings are not evidence was appreciated in Francis Otile vs. Uganda Motors Kampala HCCS No. 210 of 1989 where it was held that the court cannot be guided by pleading since pleadings are not evidence and nor can they be a substitute therefor. Before that the then East African Court of Appeal held in Mohammed & Another vs. Haidara [1972] E.A 166 where that the contents of a plaint are only allegations, not evidence. According to Edward Muriga Through Stanley Muriga vs. Nathaniel D. SchulterCivil Appeal No. 23 of 1997, where a defendant does not adduce evidence the plaintiff’s evidence is to be believed as allegations by the defence is not evidence. In CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1)[1978] KLR 103; [1976-80] 1 KLR 835, Madan, J (as he then was) expressed himself as hereunder:“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.”

31. Flowing from all the foregoing circumstances, I am satisfied that the learned trial magistrate arrived at a proper finding that the respondent had proved his case against the appellant on a balance of probabilities and I am not inclined to interfere with the finding on liability.

32. On the issue touching on quantum, this court can only interfere with the award of a trial court in instances where an irrelevant factor was taken into account, a relevant factor was disregarded or the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. These principles were laid out by the court in the case ofKemfro Africa Ltd t/a Meru Express Services 1976 & Another[1976] v Lubia & Another (No. 2) [1985] eKLR cited in the appellant’s submissions.

33. As earlier noted, the appellant is challenging the award made on general damages for the reasons that the learned trial magistrate applied wrong legal principles and awarded a sum that was manifestly excessive.

34. Before the trial court, the respondent had suggested the sum of Kshs.600,000/= with reference to the case of George Thambura v Taam Construction High Court Civil Case No. 228 of 1996 at Nakuru where the plaintiff was awarded Kshs.600,000/= general damages for burns to the chest, face and both hands; whereas the appellant proposed an award in the sum of Kshs.75,000/= and cited the case ofEldoret Steel Mills Limited v Moenga Obino Josephat [2014] eKLR where a similar sum was awarded.

35. In making her award, the learned trial magistrate expressed that the awards proposed by the respondent and the appellant were inordinately high and low respectively. She therefore settled on an award in the sum of Kshs.500,000/=.

36. The pleadings and medical evidence tendered show that the respondent sustained burns on the arms/hands and feet and temporary loss of consciousness resulting from electrocution. In his evidence at the trial, Doctor C.O. Okere termed the injuries as severe harm in nature.

37. Upon my consideration of the record, I agree with the reasoning by the learned trial magistrate that the sum suggested by the appellant fell on the lower side.

38. In the absence of any guiding authorities by the learned trial magistrate, I considered the case of Edith Alivitsa v Kenya Forest Service & another [2018] eKLR where I awarded the sum of Kshs.800,000/= under the same head for electric shock on the left side of the body, loss of consciousness paralysis of the left side of the body and swelling of the left upper limb with burns on left hand; and the recent case of Mass Investments Limited v Stephenson Masila Kyalo [2020] eKLR in which the court awarded a sum of Kshs.800,000/= at the instance of multiple burns to the head, chest, arms and abdomen.

39. In view of the foregoing circumstances, I am satisfied that the award made by the learned trial magistrate was within range of comparable awards made and was not inordinately high as argued by the appellant.

40. Upon my further consideration of the impugned judgment, I did not come across anything to indicate that the learned trial magistrate applied wrong principles of law in arriving at the award made so as to warrant interference with the same.

41. The upshot is that the appeal is hereby dismissed for lack of merit, with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. .....................J. K. SERGONJUDGEIn the presence of:....................... for the Appellant...................... for the Respondent