Boniface Mutinda Musau v Premier Industries Limited

25th March 2009 compensation was assessed at Kshs. 283,661.50 based on 35% incapacity and a monthly salary of Kshs. 7,000. The Claimant was paid the said sum on 23 rd November 2009 without any objection or appeal to challenge the award. 2. By a plaint dated 16th October 2009 and amended on 31st March 2010, the Claimant sued the Respondent under common law seeking compensation for the same injuries. He blamed the Respondent for he injuries citing negligence, breach of contract or statute with regard to his safety at work. He averred that the injuries were caused by faulty hydraulic electric switches and therefore Respondent had failed to provide safe means of place of work. He further averred that the Respondent failed to provide him with protective wear and subjected him to risk of bodily injuries which they knew or ought to have known. 3. He particularized his injuries as crush injury to the right hand with multiple compound fractures of the fingers leading to amputation of the right index and middle fingers. The right small and ring fingers are stiff and contracted at the joints and are incapable of any voluntary movement. He pleaded a JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 2

page 2 of 18

permanent incapacity of 50% and added that he was 34 years when he suffered the injuries in the year 2008. 4. In view of the above matters he prayed for:a) General damages. i) For pain, suffering and loss of amenities of life. ii) Diminished capacity to earn or loss of earning capacity. b) Special damages. c) Costs and interests. 5. The Respondent filed defence dated 13 th April 2010 and an amended one on 16th December 2022 denying the averments in the Claimant’s amended plaint and averred that the Claimant was solely to blame or, contributed to injuries through his negligence. In the alternative it asserted that the Plaintiff was paid compensation in the sum of Kshs. 283,661 assessed by the Director of OSHS for 35% incapacity. 6. It particularized the Claimants negligence to include, exposing himself to risk that he knew or ought to have known; failing to heed to instructions given by the supervisor failing to take JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 3

page 3 of 18

adequate precautions his own safety; failing to wear the protective wear/gear provided by the employer; failing to concentrate on his work; failing to take evasive action. Finally the Respondent averred that the suit was bad in law and the court lacked jurisdiction to entertain it and prayed for the suit to be dismissed with costs. 7. The High Court scheduled the suit for hearing on 17 th April 2024 but before then the Respondent filed a Notice of Preliminary Objection dated 12th April 2024 objecting to the hearing of the suit and urging for the same to be struck out for the reasons that the court lacked jurisdiction to entertain pursuant to the provisions of WIBA. 8. Meoli J heard the objection and dismissed it. However, she transferred the file to this court for hearing and determination since it was the best suited court to handle the matter under the Constitution of Kenya 2010. The said ruling on the Respondents objection was never challenged on appeal and therefore issues raised therein are deemed as settled and I now proceed to the merits of the case JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 4

page 4 of 18

Evidence 9. The Claimant testified as CW1 and basically adopted his statement dated 29th July 2011 as his evidence in chief. He also produced 5 documents as exhibits to support his case. 10. His evidence in brief was that he was employed by the Respondent in its Plastics factory as a Machine Operator of an injection moulding machine that makes plastic drums. The machine was operated by electric power and it had a limit switch in the form of a shutter which when you open, the machine would stop and upon closing, the machine would turn on and production continued. 11. He stated that on 3rd September 2008, he was operating the machine as usual and he opened the limit switch to remove a product but in the process the mould suddenly closed itself without any activation and trapped his right hand severely injuring him. As a result, he suffered 50% permanent incapacity and lost his job. He never worked again. He was paid Kshs. 283,661.50 as workman’s compensation but now seeks for full compensation as prayed in his plaint. JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 5

page 5 of 18

12. He contended that his hand has no power to hold anything due to the injuries suffered. He was 34 years when he suffered the injuries but now he is 51 years. He was a form 4 graduate and who gained experience of fabrication during the employment by the Respondent. 13. He denied liability for the accident and further denied the allegation that he tied the machine with a rope. He averred that the limit switch of the machine was faulty and that is why it switched on while he was removing a product from the mould. 14. On cross examination he confirmed that he joined the Respondent in 2007 and got injured in 2008. His role was Machine Operator for production of caps. He was trained by the employer and got to know how to use it. He was given gloves for the left hand only but he was injured on the right hand while removing a cap for a 50 litres drum. 15. He reiterated that there was a gate which when open the machine would switch off and when closed the machine would switch on. The safety gate is one which switch on and off the JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 6

page 6 of 18

limit switch. He denied ever tying the limit switch with a rope and averred that investigations were done about the accident. 16. He admitted that after the injuries he was taken to Kenyatta National Hospital (KNH) and the employer paid the medical bill. Subsequently, the case was reported to the Director of OSHS who assessed his compensation at Kshs. 283,661.50 based on a permanent incapacity of 35%. 17. He admitted that he signed Form from DOSH and accepted the terms. He never challenged the award by DOSH through appeal or told the Director OSHS that he had filed this suit. 18. CW2 was Dr. Washington Wokabi, a consultant and General Surgeon. He produced a Medical Report dated 3 rd September 2009 as an exhibit for the Claimant. He contended that he charged the Claimant Kshs. 2,000 for preparing the Medical Report and Kshs. 10,000 for court attendance. 19. He contended that he assessed the Claimant’s disability at 50% based on the WIBA scales on page 535 which itemizes the rates. He averred that the assessment of 35% by the earlier doctor was grossly under stated. JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 7

page 7 of 18

20. On cross examination, he stated that he physically examined the Claimant and the history he gave. He also considered a discharge summary from KNH. He maintained that he used the 1st schedule f WIBA which provides that loss of 4 fingers in one hand amounts to 40% disability. 21. In re-examination, he stated that losing two fingers in the middle is possible to work better than losing four, and that is why he assessed the disability at 50%. 22. The Respondent was represented by its Director Mr. Sundip Shah who testified as RW1. He adopted his written statement dated 12th April 2024 as his evidence in chief and produced six documents as exhibits. 23. In brief, he admitted that the Claimant employed by the Respondent as a Machine Operator and on 3 rd September 2008 at 2:00am, he was injured while operating an injection machine. He was treated at KNH and his permanent partial incapacity was assessed at 35% from the crushed right hand. 24. He stated that the matter was reported to the Director of OSHS who investigated the accident and established that the machine was in good condition and that the Claimant had been JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 8

page 8 of 18

trained on how to operate it. He was also provided with the necessary personal protective equipment. It was further found that the Claimant was negligent while operating the machine. 25. He contended that the investigations further revealed that the machine had safety gate which guides the limit switch knob to control movement and that instead of closing the safety gate, the Claimant tied the switch knob with a piece of cloth and thereby caused the mould to move continuously without the safety gate hence the accident. He maintained that the Claimant caused the accident through his own negligence by tampering with the limit switch. 26. He contended that the Director OSHS calculated the compensation payable to the Clamant at Kshs. 283,6615.50 and the Respondent paid the same on 23 rd November 2009. He further stated that the Claimant received the compensation and never raised any objection to the decision by the Director OSHS or filed any appeal to this court. Therefore, he prayed for the suit to be dismissed with costs. 27. On cross-examination, he admitted that he never witnessed the accident as it happened at night while he was away. He JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 9

page 9 of 18

contended that he visited the scene and found limit switch tied with a clothe like a rope. He admitted that there was a supervisor called Jackson who since left employment without recording a statement. He explained that the work of a supervisor is to ensure that operations are done well and not to allow people to tie the machine with a rope. 28. On further cross examination, he admitted that the Respondent did not plead in its defence that the machine was tied with a rope. He further stated that the investigation report done on the accident was given to the Director OSHS. 29. As regards the degree of incapacity, he admitted that he did not produce any medical Report to counter the assessment of 50% permanent disability. He contended that he paid the Claimant compensation at 35% permanent partial incapacity. He also stated that he paid the Claimant for loss of earning capacity. 30. In reexamination he contended that the insurance appointed a Doctor who examined the Claimant and prepared a report and issued it to the Director OSHS. He maintained that investigation JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 10

page 10 of 18

was done and he saw the switch of the machine tied with a rope. Submissions and issues for determination 31. After the hearing, both sides filed written submissions. Having considered the submission, pleadings and the evidence, there is no dispute that on 3rd September 2008 the Claimant suffered bodily injuries while in the course of employment by the Respondent . There is also no dispute that his permanent partial in capacity was assessed at 35% and the Director of OSHS awarded him Kshs. 283,661.50 compensation under WIBA. 32. It is also a fact that the Claimant never objected to the decision by the Director OSHS or appealed against it as provided for by the WIBA. It is also a fact that the Respondent paid the said sum on 23rd November 2009. Finally, it is a fact that the Respondent raised a Preliminary Objection to the suit on account of jurisdiction but the court dismissed it and no appeal was preferred to overturn the ruling. 33. The issues for determination are:- JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 11

page 11 of 18

a) Whether the Respondent was solely liable for the accident. b) Whether the reliefs sought should be granted. c) Whether the Claimant is entitled to the reliefs sought. Liability 34. The Claimant accused the Respondent of causing the accident through negligence including failure to provide safe means and safe place of work. He contended that the limit switch was fault and it activated itself and closed while he was removing a product and trapped his hand. 35. The Respondent, on the other hand, blamed the Claimant for the accident contending that he tampered with the limit switch by tying the knob with rope. As a result the machine ran continuously and thereby trapped his hand. However he admitted that the foregoing was not pleaded in the defence. 36. Besides during cross-examination, RW1 admitted that he was not present when the accident occurred. He further admitted that there was a supervisor present to ensure that the JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 12

page 12 of 18

operation were done well without any one tying the machine with a rope. 37. The supervisor was not called as a witness nor was any other eye witness who were working in the same shift with the Claimant on the night he was injured. 38. I have carefully considered the evidence by the two sides and find that the weight tilts in favour of the Claimant. Without evidence of an eye witness, the Claimants evidence stands unshaken. The evidence of RW1 is hearsay. He allege that the accidents was investigated and the report given to the Director OSHS. The identity of the investigator was not disclosed and no copy of the investigation report was produced as exhibits. 39. In the circumstances, I find that the evidence by the RW1 is unfounded and it does not synch with the Amended Defence. Therefore I hold that the Claimant has proved on a balance of probability that the material accident was cause by the negligence of the Respondent by failing to provide safe working machinery. The court agrees with Claimant that the employer exposed him to the risk of physical injury by allocating him JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 13

page 13 of 18

duty of operating a machine with a faulty switch. In the end I find the Respondent solely liable for the accident. Reliefs 40. The Claimant prayed for general damages for pain, suffering and loss of amenities; and also for diminished loss of earning capacity. He urged the court to award Kshs. 4,000,000 for pain, suffering and loss of amenities considering that he lost most fingers, which was assessed at 50% permanent disability by Dr. Wokabi. He referred the court to the case of John Masulahi Mutuku -v- Economic Industries [2010] eKLR, Samba Platinum Ltd –v- Nicholas Auma Wandera [2021] eKLR and Doti Guyo -v- Jiang Zhongemei Engineering Co. Ltd [2015] eKLR 41. The Medical Report by Dr. Wokabi dated 3 rd September 2009 was clear that the Claimants right hand fingers were severely crushed and he sustained multiple compound fractures of Phalanges. The right index and middle fingers were amputated but the remaining small fingers became stiff and contracted at the joints and are incapable of any voluntary movements. JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 14

page 14 of 18

42. Dr. Wokabi observed that the Claimant suffered a major crash injury of the right hand causing severe damages to the soft tissues and bones. He suffered a lot of pain and blood loss from the injuries. He opined that the Claimant will never be able to grip or grasp with the injured hands. Therefore he assessed the Claimants permanent functional disability at 50%. The Respondent did not produce any other medical report to challenge the report by Dr. Wokabi. It relied on the assessment of 35% made after the injury. 43. Dr. Wokabi testified that he relied on first schedule of WIBA to assess the degree of disability. I have perused the 1 st schedule and confirmed that loss of four fingers amounts to 40% disability. In City Engineering Works (k) Ltd -v- Venatsio Mutua Wambua [2016] KEHC 6553 (KLR), the Judge awarded Kshs. 600,000 to a Claimant who suffered 40-45% of disability due to loss of two fingers and rendered two others incapable of functioning. Considering the passage of time since the above decision was passed and the inflation factor, I award the Claimant Kshs. 1,200,000 as general damages for pain, suffering and loss of amenities. JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 15

page 15 of 18

44. As regards damages for loss of earning capacity, the Claimant submitted for Kshs. 2,154,000 based on a multiplier of 26 years and salary of Kshs. 7,000. He stated that he suffered the injuries at the age of 34 years and he never worked again. 45. The Respondent submitted that the claim for diminished capacity to earn should be rejected and if the court deemed fit to award the same should be based on a multiplier of 15 years as in the City Engineering Works case, Supra. 46. Having considered the submissions by the two sides, I take judicial notice that the normal retirement age in Kenya is generally 60 years. The Claimant left employment at 34 years and therefore, he had 26 years before retirement. Guided by the cited authorities and the degree of incapacity, being 40%, I believe a multiplier of 15 years is reasonable. Hence Kshs. 700 x 12 x 15 = Kshs. 1,260,000 for the diminished earning capacity. 47. Turning to the Claim for special damages, the rule is they must be specifically pleaded and proved. The Claimant pleaded only Kshs. 2,000 but during the hearing, Dr. Wokabi stated that he charged Kshs. 10,000 for court attendance. Therefore the JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 16

page 16 of 18

Claimant prayed for the Kshs. 2,000 for medical report and Kshs. 10,000 for witness expenses. 48. The Respondent denied the said claim and maintained that the Kshs. 10,000 was not pleaded and proved. It is true that Kshs. 10,000 for court attendance was not pleaded. Only Kshs. 2,000 for preparation of medical report was pleaded and proved by a receipt. I award the Kshs. 2,000 as prayed. 49. As regards the Kshs. 10,000 for witness attendance, I do not think that it should form part of the pleadings. Therefore I allow the claim for Kshs. 10,000 as witness expenses for Dr. Wokabi’s court attendance. Conclusion 50. I have found that the Respondent was solely to blame for the accident and injuries to the Claimant on 3 rd September 2008. I have further found that the Claimant is entitled to compensation. Consequently I enter judgment for him as follows:a) General damages for pain, suffering amenities..Kshs. 1,200,000 JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 17 and loss of

page 17 of 18

b) General damages for loss of earning capacity….Kshs. 1,260,000 c) Special damages ………….Kshs. 12,000 Total …………………………Kshs. 2,472,000 Less paid under WIBA ……Kshs. 283,661.50 Total …………………………Kshs. 2,188,338.50 d) Costs and interest at court rate from date hereof DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: No appearance for Claimant Otieno for Respondent JUDGMENT IN ELRC CAUSE NO. E521 OF 2024. 18

page 18 of 18