[2017] KEHC 1590 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 44 OF 2016

WINESTONE ODHIAMBO OKEYO............................APPELLANT

VERSUS

MUHORONI SUGAR COMPANY LIMITED

(UNDER RECEIVERSHIP)........................................RESPONDENT

[Being an appeal from the Judgment in the Tamu SRMCC No. 52 of 2012 Delivered on the 9th June 2016]

JUDGMENT

The appellant in this case was employed by the Respondent at its sugar factory. On or about 31st December 2010 as the appellant was reporting on night shift he was attacked by thugs thereby sustaining severe bodily injuries. In the plaint he avered that it was a contractual statutory term of his employment contract that while he was at his place of work the Defendant would ensure that he was safe by maintaining a safe working system and by providing him with protective gears, adequate supervision and instruction in regard to the performance of the work he would be assigned.

It was his case that the incident giving rise to his injuries occurred as a result of negligence and breach of statutory duty or breach of employment contract on the part of the Respondent. He therefore sought general damages and the costs of the suit.

After hearing and considering the evidence and submissions of the parties the Trial Magistrate found that liability had not been proved and dismissed the appellant’s claim with costs to the Respondent. Being aggrieved he appealed on grounds that:-

1. “THAT the Learned Trial Magistrate erred in law and in fact in having failed to consider the evidence tendered by the Plaintiff while arriving at his decision;

2. THAT the Learned Trial Magistrate erred in law and in fact in dismissing the Plaintiff’s case without giving the racio-dissidendi.

3. THAT the Learned Trial Magistrate erred in law and in fact in arriving at a decision that was not tenable in law.

4. THAT the Learned Trial Magistrate erred in law and in fact in having imported and considered evidence not tendered at the hearing.

5. THAT the Learned Trial Magistrate’s findings in entirety in the circumstances were manifestly wrong.”

This appeal was canvassed through written submissions. As the first appellate court I have reconsidered and evaluated the evidence. The appellant testified that he was employed by the Respondent to pack sugar as a casual and was reporting to work at 9PM on the material day. He testified that when he got to the barrier a group of youth came from the sugar plantation and ran towards them. I presume that by them he meant him and the three guards who he said were at the barrier. He stated that they ran so that they could enter the factory but as he ran he was hit on the neck by something. He fell down. The guards went to his rescue but the thugs overwhelmed them and beat him. He contended that the thugs beat him while he was inside the factory presincts and that they took his phone and boots. He sustained several injuries. Evidence of those injuries and the treatment he received was tendered in evidence. He also produced payslips to prove he was indeed employed by the Respondent. He blamed the Respondent for failing to provide him with enough security, for not having flood lights at the place the incident occurred and for not providing him with safe transport.

The Respondent called Daniel Ombok Ndege who testified that he was on duty on that day. His testimony was that the appellant was attacked at 9pm at the Koru Muhoroni Kipsitet junction near the factory. He also testified that on that day the appellant had left work at 6AM and was supposed to clock out at 2PM and that therefore the appellant was not on duty when the incident occurred at 9PM. He produced an electronic Time Card as proof. He also produced an Occurrence Book which according to him proved that the attack took place at Musco junction while the appellant was reporting to work.

There is no doubt that at the material time the appellant was an employee of the defendant at its sugar factory in Muhoroni. There is also no dispute that on the material day at around 9PM the appellant was accosted by thugs and that he sustained bodily injuries. The issues for determination are:-

1) Whether the attack occurred in the course of his employment.

2) Is the Respondent liable to compensate him for the injuries he sustained?

Having considered the evidence by both sides and especially the Plaintiff’s own testimony it is my finding that this incident did not occur in the course of his employment. Indeed his evidence was that he was attacked on his way to work. It would appear that the only reason he blames the Respondent is because according to him he was already within the factory precints when he was attacked. A close scrutiny of his testimony will however show that he was not within the factory when the thugs struck. He testified that he first arrived at the barrier where there were 3 security guards. He also testified that at the gate there were 3 more guards. He however neglected to tell the court the distance between the barrier and the gate. More crucial is that there is nothing in his evidence to prove that he had already gone through the gate when the attack occurred. He was categorical that it occurred while they were at the barrier. He testified that as he was running from the gang he was hit by something and he fell down. It is clear therefore that he was beaten before he could reach the gate. He could not therefore have been within the factory when the attack occurred. This finding of fact arises from his own evidence. In any event even had the attack occurred within the factory premises it is my finding that it was not a risk that could be reasonably foreseen by the Respondent. The attackers were criminals the respondent can be said to have known would strike. That there were no floodlights at the place the attack occurred was not pleaded in the plaint and the appellant could not rely on it. As for security it was his own evidence that there were 3 guards at the barrier and 3 guards at the gate and that indeed the guards went to his rescue but they were overwhelmed. By this he himself discounted that this was an event which could be prevented by taking reasonable precaution. By placing 3 guards at the barrier and 3 at the gate the Respondent had taken reasonable precaution but inspite of this the thugs still injured the appellant. Lack of an alarm system or proper warning system or even protective gear, a safe system to work and proper supervision do not arise in this case. The appellant did not demonstrate that it was lack of any of the above that culminated in the attack by the thugs.

It is my finding therefore that the appellant did not prove negligence or breach of contract and/or statutory duty on a balance of probability. Accordingly I find no merit in this appeal and the same is dismissed with costs to the Respondent.

It is so ordered.

Signed and dated at Kisumu this 6th day of December 2017

E. N. MAINA

JUDGE

Signed and delivered at Kisumu this 7th December 2017

D.S. MAJANJA

JUDGE