[2022] KEHC 1616 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 256 OF 2016

W. E. TILLEY (M) LIMITE............................................................APPELLANT

-VERSUS-

PATRICK OGUTU OKELLO......................................................RESPONDENT

(Being an appeal from the judgment of Hon. D. W. Mburu PM in Nairobi CMCC no. 5804 of 2012 delivered on 15th April, 2016)

JUDGMENT

1) On 15th April 2016, Hon. D. W. Mburu, learned PrincipalMagistrate, awarded Patrick Ogutu Okello, the respondent herein a sum of ksh.162,000/= for both general and special damages for the injuries the respondent allegedly suffered while working for W. E. Tilley Ltd, the appellant herein in its premises.

2) Being aggrieved, the appellant filed this appeal seeking tochallenge the award and put forward the following grounds.

a) THAT the learned trial magistrate erred in law and fact in disregarding the evidence adduced by the appellant thereby arriving at an erroneous finding on liability.

b) THAT the learned trial magistrate erred in law and fact in wholly relying on the evidence adduced by the respondent which evidence contradicted his pleadings thereby arriving at an erroneous finding on liability.

c) THAT the learned trial magistrate erred in law and fact in holding the appellant 100% liable for the accident when no negligence had been proved on its part which finding was untenable.

d) THAT the learned trial magistrate erred in law and fact in disregarding the appellant’s submissions on record thereby arriving at a finding on liability that was untenable.

e) THAT the learned trial magistrate erred in law and fact in awarding the respondent kshs.160,000/= as general damages despite the medical evidence on record that the respondent sustained minor injuries which award was highly excessive.

f) THAT the appellant shall upon receipt of the typed proceedings file a supplementary memorandum of appeal to include other grounds and reasons that may become apparent therein.

3) When this appeal came up for hearing, this court gavedirections to have the appeal disposed of by writtensubmissions.

4) I have re-evaluated the case that was before the trial court. Ihave further considered the rival submissions plus the authorities supplied. On appeal, the appellant beseeched this court in its written submissions to find that the suit before the trial court was time-barred. The appellant pointed out that the suit being an action in tort was filed after the lapse of 4 years 7 months from the date of the accident contrary to the provision of Section 4(2) of the Limitations of Actions Act which require such actions to be filed within 3 years from the date of the occurrence of the tortious act.

5) The respondent did not address this court over the submission.I have carefully perused the record of appeal and it is apparent that the objection on the competency of the suit was neither raised in the defence nor in the memorandum of appeal. However, the record shows that the appellant filed and served a notice to preliminary objection dated 18thSeptember 2013.

6) It is curious to note that the notice of preliminary objection wasnever canvassed before the trial court. A cursory look at the plaint the plaintiff (now the respondent) had pleaded in paragraph 5 that the cause of action arose on 7thMarch 2008 while the suit was filed on 4thOctober 2012.

7) It is therefore clear that the suit was filed more than 4 yearsfrom the date of the cause of action contrary to the provisions of Section 4(2) of the Limitations of Actions Act and Section 90 of Employment Act.

8) Though the issue was not canvassed before the trial court, thetrial court was bound to ascertain the competency of the suit in view of the act that the point was raised in the notice of preliminary objection dated 18thSeptember 2013. I am convinced that the suit was statutorily time-barred.

9) The second ground of appeal is to the effect that the respondenthas failed to establish liability on the part of the appellant. It is the submission of the appellant that the respondent gave inconsistent and contradictory evidence in an attempt to lay blame on the part of the appellant for the accident.

10) The respondent on his part argued that the trial principalmagistrate arrived at the correct decision on liability statingthat he tendered credible evidence to establish liability.

11) I have re-evaluated the evidence tendered before the trial court.In paragraph 5 of the plaint, the respondent stated the

particulars of negligence on the part of the appellant as follows:

a) Assigning the plaintiff duties without due care andattention.

b) Exposing the plaintiff to risk of damage or injury whichthey knew or ought to have known.

c) Failing to provide a safe place of work.

d) In so far as is applicable the plaintiff shall rely on thedoctrine of res ipsa loquitur.

e) Failing to provide the necessary working implements.

f) Failing to provide any protective devices.

12) In the same paragraph the respondent also gave the particularsof breach of contract as follows:

a. Failing to fully instruct the plaintiff as to dangers involved in the said work and precautions to be observed.

b. Failing to provide any and/or adequate supervision.

c. Failing to provide any protective devices.

13) The respondent testified and also summoned a doctor to testifyin support of his case. In his evidence in chief, the respondent stated that he was employed by the appellant between the years 2004 and 2009 as a filleter. He stated that he used to slaughter fish on a table which were brought by other workers. He stated that on 7thMarch 2008, a supplier abruptly and without warning poured fish on the table thus hitting his knife which in turn cut his left middle finger.

14) He stated that there was no system of work. He stated thatthey were supplied with gloves which could guard against cuts. He stated that he should have been given time to finish slaughtering the fish first before pouring more fish.

15) The appellant on its part tendered the evidence of its productionsupervisor one Daniel Kagunda Waiharo who stated that at the time of the accident the appellant had supplied gloves and other protective equipment to the respondent and other workers.

16) The appellant’s witness denied that more fish were poured onthe table but were instead kept in crates. He also denied that the respondent was rushed to perform his duties. The witness said that he was present at the time of the accident but admitted he had no evidence to show he was present at the time of the accident occurred.

17) When faced with the competing evidence, the learned principalmagistrate came to the conclusion that the appellant had failedto prove a safe system of work and therefore found it whollyliable.

18) Having re-evaluated the evidence tendered I too find that therespondent was consistent in his evidence. He was able to show that the accident occurred when the workers were rushed and that more fish were poured thus hitting the respondent’s knife hence cutting his finger. On liability, the decision of the learned principal magistrate cannot be faulted.

19) On quantum, the respondent was awarded ksh.162,000/=representing both general and special damages. It is the submission of the appellant that the award is high and excessive in such minor injuries.

20) On the other hand, the respondent is of the submission that theaward is reasonable and commensurate for the injuries he sustained. I have considered the rival arguments on quantum. I have also taken into account quantum over such injuries in other decision in respect of similar injuries.

21) It is not in dispute that the respondent suffered a deep cutwound on the left middle finger. This court inWiyumiririe Saw Mills =vs= Paul Kariuki (2005) eKLRaffirmed the decision of the trial court which awarded a claimant a sum of ksh.230,000/= for a cut would on the right. I find the award given by the trial magistrate in the instant case to be reasonable. The appeal on liability and quantum has no merit.

22) However, this appeal succeeds on the ground that the suit wastime barred.

23) The appeal is allowed, hence the judgment of the trial court isset aside and is substituted with an order dismissing the suit. In the circumstances of this appeal, a fair order on costs is to order that each party bear their own costs on appeal and in the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF MARCH, 2022.

...........................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the Respondent