[2019] KEHC 5175 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 4 OF 2014

TINDERET TEA ESTATES LIMITED............................APPELLANT

VERSUS

ANNAH WANJIRU KENDIA........................................RESPONDENT

(Being an appeal from judgment and decree of the Hon. B.Mosiria,

Principal Magistrate in Kapsabet Pmcc No.351/2010

delivered on the 20. 12. 13)

JUDGMENT

1. The respondent (ANNAH WANJIRU KENDIA) had sued the appellant (TINDERET TEA ESTATES LIMITED) in the lower court alleging that on or about the 2. 5.2007 while engaged in duties assigned to her, due to breach of contract of employment/ or statutory duty she was injured when she slipped and fell down, she was pricked by tea stick on the right leg. The defendant is a limited liability company.

2. The respondent had attributed negligence on the part of the defendant and or the employees as follows:

a. Failing to provide or avail the plaintiff with gloves, apparel, gumboots, masks, goggles or any other protective gear.

b. Failing to provide a proper system of working and/or prevent the said accident.

c. Failing to warn the plaintiff on the impending danger or to take any measure to prevent the plaintiff from sustaining the said injuries.

d. Instructing the plaintiff to work in unsafe conditions/environment

e. Failing to provide adequate supervisory mechanism to the plaintiff

f. Exposing the plaintiff to risk of harm or injury

g. Failing to make or to keep the plaintiff’s place of work safe.

3. She sought general and special damages. The matter proceeded for hearing and judgment was entered in favor of the respondent as against the appellant for a sum of Ksh 100,000/= and Ksh 1500/=. Being aggrieved by the judgment the appellant appealed and raised the following grounds:

a. The trial magistrate grossly misdirected herself in treating the evidence and submissions on liability before him specifically and consequently coming to a wrong conclusion on the same.

b. The trial magistrate did not in the alternative consider or sufficiently consider the demand of contributory negligence based on the evidence adduced and the submissions filed by the appellant.

c. The trial magistrate grossly misdirected herself in treating the evidence in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.

d. The trial magistrate misdirected herself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the appellant.

e. The trial magistrate erred in not sufficiently taking into account all the evidence presented before her in totality and in particular the evidence presented on behalf of the appellant.

f. The trial magistrate erred in failing to hold that the respondent had failed to prove negligence on the part of the appellant while the onus of proof lay with the respondent.

g. The trial magistrate proceeded on wrong principles of fact and law when assessing the damages to be awarded to respondent (if any) and failed to apply precedents and tenets of law applicable more so on the principle that a court must not involve itself in trivialities when making its decisions.

h. The trial magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.

i. The trial magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.

4. In the trial court, the respondent testified that she was an employee with the appellant company, on 2. 6.07 at 8. 30 a.m. she got injured while on duty when a stick ordinarily used to mark the lines of tea which was under the soil pricked her.

It was her evidence that the sticks which were dangerously mounted to mark the tea lines, should have been removed once the holes were dug- however, that was not done. She got pricked on the right leg near the thigh and blamed the appellant for not providing her with gumboots. Further, that she could not have seen the sticks as they were covered by the soil for the dug hole. She reported the incident whereupon her supervisor HENRY TALAM, and field manager MICHAEL KANYONGO and was given a note, and she went to NANDI HILLS for treatment (Ex.1). She later went to see DR. ALUDA for medical examination and paid Ksh1,500/-(Ex. 2 & 3) Later she was reviewed by the appellant’s doctor (Ex.5). On cross-examination she stated that her duties involved both a plucking and planting tea and the sticks were in the soil.

5. The appellant availed one witness MAURICE NABANGE (DW1) who testified that the respondent was on duty on 2. 5.2007, and she plucked 25kgs of tea. That she was present on duty on 3. 5.2007 and if she had been injured then her name would not have appeared in the allocation book. On cross examination he testified that the dispensary records would show the respondent was not injured.

6. The trial court in its decision found that DW1 was not the respondent’s immediate supervisor, and the only inference the court could draw was that the only reason her named supervisor TALLAMwas not called to testify is because he would have given evidence adverse to the appellant. Further DW1 confirmed that the respondent had not met her average out-put on the date in question-which suggested that it was probably because she got injured while at work.

7. The trial magistrate noted that the respondent said she fell into an unmarked ditch, and that the appellant did not deny the existence of such ditches which were covered by tea bushes, nor was there evidence that the appellant had placed warning signs as to the existence of the ditches. The appellant was this held liable for negligently allowing the respondent to work under such dangerous conditions without any protective gear.

8. Parties agreed to canvass the appeal by way of written submissions. The appellant through their advocate submitted that this court was not bound to necessarily follow the trial court’s decision urging the court to be guided by the decision in Selle & Anor v. Associated Motor Boat Co. Ltd & Ors [1968] E.A 123.

9. That the respondent did not discharge the burden of proof against her as per section 107-109 of the Evidence Act as was held in Statpack Industries v. James Mbithi Munyao[2005] eKLR. It is argued that the date for the injury in her pleadings and in her testimony in court was contradictory. It was further contended that the evidence by the respondent that she slipped, fell and was pricked by a stick showed she was negligent, she could not fall without explanation and then blame the causation on the appellant, in Statpack Industries v. James Mbithi Munyao(supra) the court held,

“An employer’s duty at common law is to take all reasonable steps to ensure the employer’s safety.

But he cannot baby-sit an employee. He is not expected to watch over the employee constantly.

The plaintiff must prove a casual link between someone’s negligence and his injury. The plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn.”

See also Simon Muzee alias Simon Musee v. Satvinder S. Sekhon[2005] eKLR

10. The appellant contends that the respondent had worked for 13 years, and could not allege that she has been working without protective gear, so she was estopped by the doctrine of Voluntary Assumption of Risk or Volenti non fit injuria.

11. On quantum, it was argued that the treatment note from Nandi Hills Hospital showed that there was a swelling and pain after the fall while on duty, and the report by DR. ALUDA was exaggerated, as it showed he had cleaned the wound and given tetanus injection yet the same was done 3 years and 5 months later. The award of Ksh 100,000 was contested as being high considering the year was 2013. Counsel submitted that an award for bodily injuries is intended to be compensatory in nature not receiving more than the actual injuries. In Kemfro Africa Ltd t/a Meru Express Service v. Lubia & Anor [1982-88] KAR 727 the court of appeal considered the principals to guide the court in disturbing quantum of damages. In Gilbert Odhiambo Owour v. Nzoia Sugar Co. Ltd [2012] eKLR the court awarded a sum of Ksh 50,000/= for similar injuries,the sum of Ksh 1,500/= being special damages should not be disturbed.

12. The respondent through her advocates maintained that she produced documents to support her injuries, pointing out that HENRY TALLAM who was her supervisor did not testify in court. She blamed the appellant for failing to warn her of the of the existence of the ditches by putting a warning sign, the appellant also failed to trim the tea bushes so that the ditches could be visible as the same was covered by tea bushes.

13. How would items such as gloves and overall and gumboots prevented the injury which was on the thigh? Further that no dispensary record was availed That appellant did not discharge the burden that she was injured while on duty when she slipped, fell and got pricked by dried pruned tea leaves.

14. The appellant is faulted for failing to show why this court should disturb an award of damages as was held in Butt v. Khan (1977) 1KAR. The respondent had sustained a pricked wound on the right leg which was swollen and tender and thus the award was commensurate with the injury. They urged that the appeal be dismissed with costs.

ANALYSIS

Issues for Determination

15. The issues that arise for determination after referring to the record of appeal, submissions and the authorities are,

a. Whether the respondent was injured while on duty

b. Whether the appellant was to blame for the injury

c. If so how much compensation was adequate

16. This court being a first appellate court it has a duty to re-evaluate, re-analyze the evidence putting in mind that it did not hear or see the witness testify, See Selle v. Associated Motorboat Co. [1967] EAR 123.

17. The respondent testified that she 2. 5.2007 she was on duty a fact not disputed by the appellant’s witness, also that she was their employee. The issue that this court has to make a finding on is whether the respondent got injured while at work or elsewhere. Part of the respondent testimony is as follows,

‘I did not complete the task, around 8. 30 a.m stick that was under the soil pricked me. These sticks are usually used to mark the lines of tea. The sticks are to be removed once the line is set. However they did not remove them. I was pricked on the right leg around the thigh. On cross-examination she further stated that the sticks were in the soil”

The respondent was showing what pricked her and placing blame on the appellant.

8. On the contrary the appellant’s evidence was that the respondent was on duty but was not injured. The respondent says that a stick was under the soil, it is more probable that the body part where the respondent would have been injured was on her foot. On cross- examination she says the sticks were in the soil covered. But she goes ahead to testify that she was pricked on the thigh. The explanation is simple-the stick was in dug hole but hidden from view by the soil and tea bushes.

The treatment chit from Nandi Hills hospital indicates the injury on right leg and tender swelling, Dr. Aluda’s report shows pricked wound on the right leg.

19. Indeed the 107 of the Evidence Act provides that the burden of proof is on one who alleges but in civil matters the standard is on a balance of probabilities. The respondent had pleaded an injury which she proved with the medical evidence. I however take note that the submissions filed by the respondent refer to evidence that was not adduced during her testimony at the trial court. Part of paragraph 10 indicates as follows,

“It is not in doubt that therefore that the appellant breached their duty of care to the respondent by failing to alert her of the existing ditches which the appellant had dug. The appellant was aware of the existence of the ditches and did not warn the respondent or seal the ditches and thus exposed the respondent to the injury.”

20. Surely what is raised in the present submissions as regards the circumstances under which the respondent got injured cannot be used against her, this court has a duty to examine the record at trial and make its conclusion. The trial court erred in coming up with a theory that the respondent had slipped and fallen into a dug up hole as that was not in her evidence.

The respondent clearly stated that the stick was mounted in a hole which was under the soil and covered by the canopy of tea bushes making it impossible to see, resulting in her getting pricked. The mere fact that she had worked for 13years under the same dangerous circumstances did not in any way lessen the appellant’s duty of care. This court finds that on a balance of probability the respondent proved she was injured while on duty.

21. On quantum of damages the court in Kemfro Africe Ltd v. A.M Lubia held that,

“the principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge are that it must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that bit must be a wholly erroneous estimate of the damages.”

22. Taking into account the nature of the injuries (there were no permanent incapacity nor significant residual effects) , and the value of the Kenyan shilling at the time, I hold the view that Kshs 100,000/-s inordinately high, The same is set aside and substituted with an award o Ksh 60,000/- as general damages. The sum for Kshs 1500/- as special damages was warranted and I decline to interfere.

Costs of appeal borne by Respondent.

DELIVERED, SIGNED AND DATED THIS 2ND DAY OF MAY 2019 AT ELDORET

H. A. OMONDI

JUDGE