[2022] KEHC 14170 (KLR)

Twiga Construction Company Limited v Kamanda (Civil Appeal 125 of 2018) [2022] KEHC 14170 (KLR) (Civ) (21 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14170 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 125 of 2018

JK Sergon, J

October 21, 2022

Between

Twiga Construction Company Limited

Appellant

and

Micah Samoita Kamanda

Respondent

(Being an appeal from the judgment and decree of Honourable E. K. Usui (Ms.) (Senior Principal Magistrate) delivered on 14th February, 2018 in Milimani CMCC no. 7605 of 2015)

Judgment

1. Micah Samoita Kamanda who is the respondent in this instance lodged a suit against the appellant vide the plaint dated November 5, 2015 and sought for general and special damages in the sum of Kshs 8,080/= plus costs of the suit and interest on the same for negligence and/or breach of contractual/statutory duty of care.

2. The respondent pleaded in the plaint that he was at all material times an employee of the appellant and that it was an implied term of the employment contract that the appellant would provide a safe work environment to the respondent and would not expose the respondent to any danger or risk while in the course of his employment.

3. The respondent pleaded in the plaint that on or about the June 19, 2015 while he was in the course of his employment and cleaning a concrete mixing machine, the machine door opened and hit the switches, causing it to rotate and injure the respondent, with the particulars of the injuries being set out in the plaint.

4. The respondent attributed his injuries to negligence and/or breach of the appellant’s contractual and/or statutory duty of care, the particulars of which are also set out in the plaint.

5. The appellant entered appearance on being served with summons and filed its statement of defence dated February 29, 2016 to deny the respondent’s claim.

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

7. Upon close of written submissions, the trial court entered judgment in favour of the respondent and against the appellant in the following manner:Liability 100%a.General damages Kshs 1,800,000/=b.Special damages Kshs 8,080/=Total Kshs 1,808,080/=

8. Being dissatisfied with the judgment by the trial court, the appellant lodged this appeal against the respondent vide the memorandum of appeal dated March 8, 2018 and put forward the following grounds of appeal:i.That the learned trial magistrate erred in law and in fact in entering judgment against the appellant and finding that the appellant was 100% liable when considering the evidence on record and trial, the same had not been proved.ii.That the learned trial magistrate erred in law and fact in failing to appreciate and find that the respondent had not proved his case on a balance of probability.iii.That the learned trial magistrate erred in shifting the burden of proof to the appellant when the same was never discharged by the respondent.iv.That the learned trial magistrate erred in law and fact in reaching a conclusion that was contrary to the evidence placed before him and therefore finding the appellant liable.v.That the learned trial magistrate erred in law and fact in failing to find the respondent contributed to the injuries he sustained.

9. The court gave directions for the parties to file written submissions on the appeal.

10. In its submissions dated July 8, 2022 the appellant argues that the trial court ought to have taken into consideration the fact that the respondent did not call any evidence to corroborate his testimony as to the manner in which the accident occurred, and that the respondent contributed to the accident on his part, through his negligence.

11. The appellant further argues that notwithstanding the fact that it did not call any witnesses at the trial, the burden remained with the respondent to prove his case to the required standard but did not, and cites the case of Mary Wanjiru v Lucy Njeri Munyua & another [2020] eKLRin which the court held that:“The fact that the evidence is not challenged does not then mean that the Court will not interrogate the evidence of the Plaintiff. The Court still has an obligation to interrogate the Plaintiff’s evidence and determine whether the same is merited to enable the Court come up with a logical conclusion, as exparte evidence is not automatic prove of a case. The Plaintiff has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited vs Nathan Karanja Gachoka & another [2016] eKLR, where the Court stated:-“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A Plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’Further the case of Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held that:-“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

12. The appellant therefore urges this court to set aside the finding by the trial court on liability and further urges that should this court deem it fit to apportion liability instead, that the same be apportioned at the ratio of 50:50 between the parties herein.

13. On quantum, the appellant faults the trial court for placing a heavy reliance on the authorities cited in the respondent’s submissions without considering comparable awards made, and yet the authorities cited by the respondent constituted injuries of a more serious nature in comparison to those sustained in the present instance.

14. The appellant therefore urges this court to interfere with the award made under the head of general damages and to substitute it with an award in the sum of Kshs 250,000/= by relying on the case of Simon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR where the court awarded the sum of Kshs 200,000/= for comparable injuries.

15. In reply, the respondent by way of his brief submissions dated June 20, 2022 contends that he was the only eye witness to the accident and it was therefore not possible to call an additional eye witness to testify on his behalf.

16. The respondent further contends that in the absence of any evidence by the appellant, his case remains uncontroverted and the particulars of contributory negligence pleaded in the statement of defence cannot stand.

17. To buttress his argument above, the respondent quotes the case of Isaac Katambani Iminya v Firestone East Africa (1969) Limited [2015] eKLR in which the court determined that in the absence of any evidence by the defendant, there is nothing to indicate that the plaintiff therein contributed to the accident.

18. On quantum, it is the contention by the respondent that the trial court arrived at a reasonable award on general damages and therefore urges this court not to disturb it.

19. Consequently, the respondent is of the view that the trial court considered all the evidence and material placed before it and arrived at a fair finding on both liability and quantum. The respondent therefore urges that the appeal must fail.

20. I have considered the contending submissions and authorities cited on appeal. This being a first appeal, I am enjoined to re-evaluate the evidence placed before the trial court. It is apparent that the appeal is challenging the findings on both liability and quantum. I will therefore address the five (5) grounds of appeal under the two (2) limbs, beginning with the limb on liability.

21. In his testimony before the trial court, the respondent adopted his executed witness statement as evidence and stated that he worked for the appellant between January, 2015 and June, 2016 when the accident occurred.

22. The respondent stated that on the material day, he was working on the mixer machine whose door was faulty and that upon climbing inside the mixer to clean it, the door opened and turned on the switch, thereby causing the machine to run and injure him.

23. In cross-examination, the respondent testified that he had worked on the mixer for a period of six (6) years and that he knew the door to be faulty, for which he had informed the foreman.

24. The respondent further testified that prior to entering the mixer, he had turned off the switch and thereafter closed the door, but that the door later swung open and turned on the switch, which switch was on the wall.

25. It is the testimony of the respondent that following his injuries, he screamed and a colleague named Samenya came and turned off the switch.

26. In re-examination, the respondent stated that the door opened unexpectedly and turned on the switch, but restated that he had previously reported to his supervisor concerning the faulty nature of the door, since it could not lock firmly.

27. In her judgment, the learned trial magistrate reasoned that the respondent had brought sufficient evidence to show that he had sustained the injuries while in the lawful course of his employment and that he had further demonstrated that the machine door opened unexpectedly and hit the switch.

28. The learned trial magistrate also reasoned that the appellant had not brought any evidence to controvert the testimony by the respondent or to show that the respondent had contributed to the accident.

29. It is for the above reasons that the learned trial magistrate found the appellant fully liable.

30. The law on negligence sets out the elements which ought to be proved for a claim of negligence and/or breach of statutory duty of care to stand. For this purpose, I make reference to Halsbury’s Laws of England, 4th Edition at paragraph 662 on page 476 which reads as follows:“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.”

31. Upon my re-examination of the material and evidence tendered before the trial court, it is apparent that the respondent was at all material times an employee of the appellant.

32. Upon my further re-examination of the material and evidence tendered at the trial, I agree with the reasoning by the learned trial magistrate that it is more plausible than not that the respondent sustained his injuries during the course of his employment with the appellant and while performing the duties set out in his pleadings and evidence.

33. The appellant on its part did not bring any credible evidence to contradict this position or to show that it had provided the respondent with the necessary equipment to assist in the performance of his duties as well as to ensure his safety.

34. Consequently and on the subject of negligence, I am satisfied that the respondent had proved on a balance of probabilities that his injuries were the result of negligence and/or breach of statutory duty of care by the appellant.

35. On the subject of contributory negligence, upon my study of the record, I concur with the reasoning by the learned trial magistrate that going by the nature of events pertaining to the accident and in the absence of any credible evidence to the contrary, it is more plausible than not that the machine door; though deemed to have been faulty in nature; unexpectedly hit the machine switch which was indicated as having been located on the wall. It would not have been reasonably possible to expect the respondent to have predicted such an incident.

36. It is also apparent from the evidence tendered that the respondent had previously raised concerns about the machine door and further stated that the same had not been maintained for some time. The appellant on its part did not tender any evidence to rebut this position.

37. Overall, I also note from the material and evidence on record that the appellant did not tender any evidence to lay basis for the apportionment of liability, despite making mention in its pleadings.

38. The law is well settled that pleadings do not constitute evidence. This 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 v 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 v Haidara [1972] EA 166 where that the contents of a plaint are only allegations, not evidence. According to Edward Muriga through Stanley Muriga v Nathaniel D Schulter Civil 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 v 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.”

39. 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.

40. On the second limb 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.

41. The award being challenged on appeal is that of general damages for pain, suffering and loss of amenities.

42. Before the trial court, the respondent proposed an award in the sum of Kshs 2,000,000/= under that head and cited inter alia, the case of Joseph Musee Mua v Julius Mbogo Mugi & 3 others [2013] eKLR in which the court awarded the sum of Kshs 1,300,000/= for an injury to the left leg, on the head, and face; fracture of the left leg tibia and fibula; two broken upper jaw teeth; chest injury; right shoulder injury and bruises on the left elbow and the case of Mt Longonot Medical Services Limited & another v Andason Kitonyo Kinyenze [2017] eKLR where a plaintiff with double fractures of the right fibia and also fibula, in addition to facial abrasions and laceration was awarded general damages in the sum of Kshs 1,000,000/=.

43. The appellant suggested the sum of Kshs 250,000/= as an appropriate award, with reference to the case of Simon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR where an award in the sum of Kshs 200,000/= was upheld on appeal, at the instance of comminuted fracture of left tibia, fibula with severe friction burn.

44. The learned trial magistrate upon considering the two (2) medical reports on record also noted the authorities cited and their age, the nature of injuries sustained and the cost of inflation, thereby arriving at an award in the sum of Kshs 800,000/= under the above head.

45. The pleadings and medical evidence tendered show that the respondent sustained communited/compound fracture of the right tibia and fibula, with the second medical report prepared by Dr PM Wambugu and produced by the appellant assessing permanent incapacity at 18%.

46. Upon my consideration of the record, I agree with the reasoning by the learned trial magistrate that given the serious nature of the injuries, the sum suggested by the appellant fell on the lower side. I also note that some of the authorities cited by the parties were decided a number of years ago.

47. Upon considering the case of Nahson Nyabaro Nyandega v Peter Nyakweba Omboga [2021] eKLR where the court awarded the sum of Kshs 650,000/= on appeal for similar injuries with no assessment on permanent disability, and the case of Daniel Oduor Shieuda v Christopher Wambugu [2021] eKLR in which the court adjusted the award on appeal upwards from the sum of Kshs 450,000/= to that of Kshs 800,000/=, I am satisfied that the award made by the learned trial magistrate in the present instance was reasonable and within range of comparable awards. I see no reason to interfere with it.

48. The upshot therefore is that the appeal lacks merit, it is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF OCTOBER, 2022. ………….…………….JK SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent