Richard Mukhebi Wanjala v Channan Agricultural Contractors Limited

5. The Respondent in his response, denied all the particulars of negligence levied against them and insisted that the Appellant was the author of his own misfortune. 6. During the hearing, the Appellant testified but did not call any other witness, while the Respondent also testified but did not call any other witness. 7. After hearing and an in-depth analysis of the evidence before Court, required standard as per the dints of Section 107 of the Evidence Act as he failed to establish the Defendant’s negligence. The trial Court further noted that the Appellant is entitled to compensation where a claim is made under the Workman Compensation Act. The Court proceeded to note that, if it was to grant quantum of damages he would have made an award of Kshs. 650,000/= for general damages for pain and suffering, Kshs. 3,050/= for special damages less 30% contributory negligence making the total Kshs. 457,135/= and proceeded to decline to grant any damages. The Appeal 8. Aggrieved by the said judgement, the Appellant lodged a Record of Appeal dated 11th March 2024, wherein a memorandum of appeal dated 7th February,2018, is based on Seven (7) grounds of appeal as follows: a. That the Honourable Magistrate erred in both law and fact when he dismissed the Appellant’s suit without regards to the evidence on record. b. That the Honourable Magistrate failed to appreciate that the principles of liability both under the workmen compensation and the case before him were the same hence erred when he found liability at 70-30% under the Workmen Compensation but failed to apply the same principle in the claim before him. c. That the Honourable Magistrate failed to appreciate that the Respondents had conceded to liability in their submission but went ahead to absolve them. d. That the Honourable Magistrate erred applied wrong principles when he failed to find the Respondent liable under a claim for general damages but ended up finding the Respondents liable under a claim for the Workmen Compensation at 30-70% hence occasioning a miscarriage of justice. e. That the Honourable Magistrate failed to analyse, consider and take into account the submission by the Appellant. f. That the judgement by the learned magistrate is unreasonable vague and questionable as it falls fiat. g. That the judgement is contrary to the law and evidence before the magistrate. 9. The Appellant therefore prayed that the impugned judgement delivered on 18th January 2018, be set aside; that the appeal herein be allowed with costs; that the Appellant be granted costs in the lower Court. 10. The Appeal was canvassed by way of written submissions. The Appellant’s filed their submissions dated 18th March 2025, while the Respondent’s submissions were dated 15th April 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 2

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Appellant’s Submissions 11. The Appellant submits on all the preferred grounds of appeal. According to him, the trial Court failed to evaluate the evidence before it, consider the pleadings and appreciate the standard and burden of proof. He submits that there was no doubt that the motor vehicle the Appellant was operating is owed by the Respondents and it was within the Respondent’s mandate to ensure that the said motor vehicle was in sound mechanical condition. He placed reliance on the case of Dewish vs Kuldip’s Touring Co. (1969) E.A 189-192. Further, the Appellant submits that the trial Court erred in finding the Respondent 70% liable under the Workmen Compensation Act but proceeded to hold that the Appellant had failed to prove liability under general damages. He insisted that the Appellant should not be held liable for not reporting a defect and that the trial Court erred when he failed to find that the duty to keep a motor vehicle in good mechanical condition lies with the owner of the said motor vehicle. He placed reliance on the case of Ima Hauliers Ltd vs Mohammed Nyaongesa Murende (2011) eKLR. 12. The Appellant submits that the trial Court erred when he found and held that the Respondent had produced a service book from 27th September 2011 to 23rd November 2025 when in reality the service book covered dates between 6th April 2011 up to 25th April 2015. He submitted that the trial Court failed when it found there was no mechanical service in the month of May 2015, the period the accident occurred despite the Respondent revealing that the said motor vehicle was serviced four times a month. He submits that the trial Court ought to have held the Respondent 100% liable for the defects that led to the occurrence of the accident on 29th May 2015, thereby occasioning bodily injuries to the Appellant. He placed reliance of the case of Nandwar vs Kenya Nazi Limited (1988) eKLR. 13. The Appellant urged this Court to intervene and hold the Respondent herein negligent and apportion liability at 100% and on quantum to maintain the award of the lower Court and grant the Appellant both costs in this appeal and in the trial Court plus interest. Respondents Submissions 14. The Respondent summarily submitted on four key issues namely: whether the appeal is frivolous, scandalous and vexatious; whether the appeal constitutes the abuse of Court process; whether negligence on the part of the Respondent was proved on a balance of probabilities; whether the trial magistrate erred in evaluating the evidence. 15. On the first and second issue, the Respondent submits that the Appellants appeal was contrary to the dints of Order 42 Rule 1 of the Civil Procedure Code as the appeal itself is long winded with 7 paragraphs as grounds of the appeal, breaching all the known rules of conciseness of pleadings. The Respondent urged this Court to dismiss the same. The Respondent placed reliance on the following cases: Transcend Media Group Limited vs Independent Electoral & Boundaries Commission (IEBC) (2015) eKLR and Robison Kiplagat Tuwei vs Felix Kipchoge Limo Langat (2020) eKLR. The Respondent insists that the Appellant misinterpreted the submissions to suggest that there was a concession of liability yet the lower Court record indicates no record of any adopted consent on liability. Further, the Respondent submits that the Appellant relied on the law of negligence and the Workmen Compensation Act and it is clear that parties are duly bound by pleadings and not the obiter of the judicial officer. The Respondent placed reliance of the case of Direct Assurance Company Limited vs Nyasi (Civil Appeal No. E169 of 2023 (2023) KEHC 273273 (KLR) and Lei Masaku vs Kaplana Builders Ltd (2014) eKLR. Finally, the Respondent submits that the principles of obiter dictum are not taken into consideration in addressing the grounds of appeal as laid down by the Appellant and the Appellant was to solely focus on the ratio decidendi of the trial Court when drafting https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 3

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his grounds of appeal. The Respondent placed reliance on the case of Muchanga Investments Limited vs Safari Unlimited (Africa) Ltd & 2 Others. Civil Appeal No. 25 of 2002(2009) eKLR. 16. On the third issue, the Respondent submits that for a claim of negligence to be properly established, there must be causation and that Appellant must prove that, but for the negligence of the Respondent, the said injury would have not occurred. Counsel for the Respondent insisted that there must be connection between the on the cases of Stat Pack Industries Limited vs James Mbithi Munyao(2005) eKLR and Loctgelly Iron Coal Co. Ltd vs Mcmillan case (1934) A.C. Further, the Respondent submits that the Appellant utterly failed to prove the nexus between the injuries sustained by him and the alleged negligence on the part of the Respondent contrary to the express provisions of Section 107 and 109 of the Evidence Act. The Appellant submits that the trial Court found that there was no negligence established in any way on the part of the Respondent. 17. On the last issue, the Respondent submits that the trial Court dismissed the suit after having regard of the evidence on record including the Appellant’s testimony, service records and expert reports. The Respondent insisted that the Appellant failed to discharge the burden of proof under Section 107, Section 108 and Section 109 of the Evidence Act and the trial Court’s holding on the matter was duly justified. The Respondent placed reliance on the case of Miller vs Minister of Pensions (1974). 18. The Respondent urged this Court to uphold the holding of the trail Court and find this appeal to be devoid of merit and dismiss the same with costs to the Respondent. Analysis and Determination 19. This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate Court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424. 20. After careful analysis of the record of appeal and the submissions of parties the following issue arises for determination: a. Whether this Court should interfere with the holding of the trial Court. Whether this Court should interfere with the holding of the trial Court. 21. It is evident that an employee can also pursue an employer for compensation for injury or disease occasioned by the employer, is when such injury or disease is caused outside performance of employment duty or outside the workplace. In that event, an employee or dependant can sue an employer for negligence under the general common law of negligent and seek compensation in the ordinary Courts, like any other person, as is the case herein. 22. The Appellant herein, tendered his evidence in the trial Court as PW1 wherein he told the Court that he is a driver by profession and duly employed by the Respondent from the year 2001. He availed his driving licence in Court as PEXH I. He told the Court that on the material date of the accident, 29th May 2015, he had signed in at work at about 3.00 a.m. and that he left the yard at 4.30 a.m after emptying the tractor. He According to him, he had requested to take the tractor registration number KTCCA XXXC to out-growers farms Nambacha and that the said tractor belonged to the Respondent herein. He availed in Court a copy of the record of search of tractor registration number KTCCA XXXC as PEXH II. It was his evidence that he was driving towards Mumias Sugar Company when he reached Ekero Market and the tractor got a steering lock, lost its control and overturned. He https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 4

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told the Court that he was injured on his right leg after the mud guard injured him. He was later taken to the hospital where he was duly treated. He produced in Court the treatment notes from St. Mary’s Hospital as PEXH 1V. The Appellant insisted that he used the tractor registration number KTCCA XXXC for 8 years and the same had a problem and that he had already raised a complaint with his employer, Respondent herein, but no action was taken. He told the Court that he was never given any protective gadgets or gears and that his duties were assigned by the chairman of the Respondent herein. 23. On cross-examination, he told the Court that Protus is a clerk with the Respondent herein and that he came to the scene of the accident. He told the Court that on the date of the accident he did not detect any fault with tractor and that the tractor got a lock as it was on gear. He insisted that prior to heading out with the tractor he confirmed if the same was okay and that he was not aware if the Respondent kept records of the servicing of the tractor and that he was not aware if the same was taken for inspection. 24. On re-examination, he reiterated that the Respondent was supposed to confirm that the tractor was in good condition and that when he had the tractor at the cane plantation the same did not show any signs of failure. He told the Court that he was not part of the inspection when the same was carried out on tractor registration number KTCCA XXXC. 25. At the close of the Appellant’s case, the Respondent tendered evidence vide Protus Simiyu as DW1, who told the Court that he is an employee of the Respondent herein and that the chairman of the Respondent has employed him for now 16 years. He told the Court that the Appellant herein was a tractor driver with the Respondent herein and that he was assigned tractor registration number KTCCA XXXC. He confirmed that an accident occurred on 29th May 2015, involving the Appellant herein and that he only received information of the accident and rushed to the scene. He told the Court that the accident occurred along Mwitoti -Ekero road and the road was tarmacked. He insisted that the accident occurred where there was a pot hole and that the place was known to be a black spot. According to him, each motor vehicle at the Respondent had a vehicle service book that ran from 27th March 2011 to 23rd November 2017 and the same contained details of repair work and description of component fitted. He told the Court that the exercise is conducted by the workshop manager who has custody of the records. He told the Court that the last time tractor registration number KTCCA XXXC was repaired was 25th April 2015, a month prior to the accident and that he was the one who was in-charge of releasing the motor vehicles. He told the Court that drivers are expected to report to the yard, check the requisite report concerning their motor vehicle and report any problem. In cases of no report/complaint the drivers sign for the motor vehicle and the same is released to them. He told the Court that he did not receive any report of any fault. He produced in Court the service book record as DEXH II. He told the Court that the tractor registration number KTCCA XXXC was taken to Mumias Police Station where an inspection was conducted and the report confirmed that the said tractor registration number KTCCA XXXC had no pre- accident defects. He produced the inspection report records as DEXH III. He told the Court that the Appellant told him that he hit the pot hole and the tractor registration number KTCCA XXXC swerved and that the Respondent was not at fault thus not liable for the accident. 26. On cross-examination, he told the Court that the Appellant was an employee of the Respondent and that he was injured while on duty at the tractor registration number KTCCA XXXC which is owned by the Respondent herein. He told the Court that at 29th May 2015, he was an administrative assistant and that Nickson Otieno Odhiambo was the supervisor. He told the Court that drivers do not do the servicing of the motor vehicles and if the motor vehicle fails then the workshop manager fills the vehicle service book. This witness testified that the Respondent’s employees are insured and that the Respondent provides it’s employees with the relevant protective gears and that there are records to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 5

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confirm the same but he did not avail the same in Court. He told the Court that it took them 1 ½ hours to remove the Appellant from where he was trapped under the tractor registration number KTCCA XXXC and that as per the exhibit produced as DEXH II there are no names of the Respondent’s contractors, the same is not labelled and it lacks a rubber stamp. 27. On re-examination, DW1 confirmed that he had filed a written statement on 6th February 2017, in Court and that the motor vehicle in question is tractor registration number KTCCA XXXC. 28. A re-analysis of the record of appeal reveals the Appellant was an employee of the Respondent and was at all material times relevant to this appeal, lawfully driving tractor registration number KTCCA XXXC in the course of his employment with the Respondent from Nambacha Zone to Mumias Sugar Company Limited. There is no dispute that an accident occurred on the material day and the Appellant was injured. PW1 said that he had raised his concerns about the condition of the tractor but in vain, it is pleaded that the Respondent failed to act on his complaint. The Appellant also relies on the doctrine of Respondent Ipsa Loquitor. This doctrine shifts the burden of proof on to the Respondent to disprove negligence. The position then taken by the Respondent before the trial court was that the Appellant was the author of his misfortune and the Respondent denied all the particulars of negligence and it maintained that it had serviced the vehicle hence it’s stand that the occurrence of the accident was not due to it’s negligence. DW1 testified that there was inspection report to the effect that the vehicle had been serviced regularly and their servicing records showed that the motor vehicle tractor registration number KTCCA XXXC was serviced on 25th April 2015, a month prior to the accident. In addition, DW1 established that there is evidence showing that the inspection report post-accident was very clear that the motor vehicle tractor registration number KTCCA XXXC had no pre-accident defaults. These are not matters’ which can be proved orally but can only be proved by production of the relevant documents, which the Respondent availed in Court. Based on the above analysis, I therefore find that the burden that had shifted on to Respondent had been duly discharged, and it is evident that the Appellant failed to discharge his burden of proof under Section 107, Section 108 and Section 109 of the Evidence Act to warrant this Court to find the Respondent liable for negligence. 29. It was incumbent upon the Appellant to prove that as a result of the negligent conduct of the Respondent, either through omissions or commissions and whether direct or indirect, such negligent conduct was the proximal cause of the accident with the resultant bodily injury to the Appellant and attendant loss and suffering; presenting in multiple forms including pain, suffering, loss of amenities, disfigurement, severe emotional distress, loss of consortium, loss of income, loss of future earnings, loss of dependency et alia) and this is where rubber meets the road for Appellant. 30. Premised upon the reasons elucidated hereinabove, I do find that the Appellant failed to prove his case against the Respondent on a balance of probability as the scale tilted towards the Respondent. 31. On quantum, it is essential to note that had the Appellant established the Respondent’s negligence as per the dints of Section Section 107, Section 108 and Section 109 of the Evidence Act this Court would have upheld the trial Court’s holding on quantum. 32. Consequently, I uphold the judgment of the trial Court both on liability and quantum for the Respondent against the Appellant herein. 33. The Respondent is awarded costs of this appeal. 34. This file is marked as closed. Orders accordingly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 6

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DELIVERED, SIGNED AND DATED AT BUNGOMA THIS DAY OF 30TH DAY OF SEPTEMBER 2025. M.S.SHARIFF JUDGE In the presence of: Ms Wanyama for Appellant Mr. Fundi for Respondent Peter Machoni …………Court Assistant M.S.Shariff J https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14832/eng@2025-09-30 7

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