Muiruri v Mahee Flowers Limited (Civil Suit 123 of 2015) [2016] KEMC 8 (KLR)

b. Failing to provide the Plaintifi with proper and or safe system of work. c. Permitting the Plaintifi to be injured. d. Failing to warn the Plaintifi of such eminent dangers involved in her work. e. Failing to provide the Plaintifi with protective devices. f. Failing to take precautions to avert danger from the Plaintifi. 3. The plaintifi is therefore praying for general and special damages, costs of the suit and interests. She is represented by the law firm of Munene Chege & Co. Advocates. 4. The defendant herein entered appearance on 31/07/2015 through the firm of Nduati & Co. Advocates. In its Statement of Defence dated 29/07/2015, it admitted that the industrial accident herein happened at the time and place pleaded in the plaintifi's Plaint. It was only denying the manner in which the accident is alleged to have occurred, and liability. In the alternative and without prejudice to the denial, it avers that the accident was caused wholly or substantially by the plaintifi's own negligence which it particularised in paragraph 9 of the Statement of Defence as follows: - 5. a. Performing his (sic) duties recklessly and without any regard to her own safety. b. Exposing herself to a risk of injury she knew or ought to have known. c. Performing work in an unauthorised and unconventional manner. d. Failing to adhere to safety regulations and instructions given by the Defendant. e. Failing to wear protective gear provided by the Defendant. f. Failing to keep proper lookout. g. Was inattentive or otherwise exercised insuficient care for his wellbeing. The defendant thus prayed that the Plaintifi's suit against it be dismissed with costs. Procedural Facts of the Case 6. As already stated hereinabove, the plaintifi filed this suit vide a Plaint dated 10.07.2015 on 15.07.2015. The Plaint was filed together with the Summons to Enter Appearance, List of Witnesses, Documents and the Statements. 7. The defendant entered appearance through the firm of Nduati & Co Advocates on 31.07.2015, when it filed its Memorandum of Appearance and Written Statement of Defence, both dated 29.07.2015. 8. The plaintifi then filed his Reply dated 14.09.2015, and Pre-trial questionnaires through Munene Chege Advocates on 23.09.2015. 9. The Pre-trial conferences which were to be held before me, could not proceed because the defendant had not filed and served its lists of documents, witnesses' statements and all the other post-pleading requirements as per Order 11 Civil Procedure Rules, 2010. It was nevertheless agreed that the matter does proceed with the hearing, which was to commence before me on 31.03.2016. Hearing however commenced and closed before me on 19.05.2016. Parties herein went ahead to close their respective cases and further agreed to file and exchange their written submissions, arguments and authorities before 9.00am on 16.06.2016 when the matter was to be mentioned to confirm the closure, or otherwise, of the submissions. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 2

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10. The submissions were however confirmed closed on 23.06.2016 and the matter fixed for the present judgment. The judgment was to be delivered on 11.08.2016, but was later moved forward to 06.10.2016, because the trial magistrate (myself) was at the time attending the inaugural annual magistrates' and kadhi's colloquium at Nairobi. Substantive Facts of the Case A. The Plaintifi ’s Case 11. The plaintifi testified as PW3. She stated that on 16.06.2014, while doing her authorised work of grading and packing assorted beans, Martin, a colleague of hers, who was at the time working for the defendant and supplying the beans from the defendant's store to them using a trolley, negligently controlled a trolley that was assigned to him, and in the process hit her left foot thereby injuring one of her toes. That she was not assigned any protective apparel at the legs/ feet. She informed her supervisor, Wanjiku/ Chiko, who referred her to the nurse. Her pain increased prompting her to be referred to J.M. Kariuki Hospital for further medical attention. She produced the treatment card as PEXH. No. 1. Her toe nail later came ofi and has never regenerated to date. 12. In cross-examination, she confirmed that she saw the trolley being turned. 13. PW1, Dr. Obed Omuyoma, a general medical practitioner based at Nakuru, confirmed having examined the plaintifi herein on 26.06.2015 and prepared a medico-legal report of the same date which he produced as PEXH. No 2A. He charged him Kshs. 5000/= for the report. He produced the receipt as PEXH. No 2B. He further stated that he charged a fee of Kshs. 15,000/= on account of his court attendance. He produced the receipt as PExh. No. 2C. He confirmed that the plaintifi sustained a blunt injury to the left big toe that led to soft tissue injuries. That at the time of the examination, the plaintifi had fully recovered from the injury. He classified the injury as harm. He relied on the treatment notes, produced as PEXH. No. 1, from Ol Kalou District (J.M. Kariuki) Hospital. 14. PW2, Peter Wainaina, is a records oficer at Ol Kalou District Hospital. He produced the Out-Patient Treatment Card dated 16/06/2014, and an attached prescription note, from the hospital as PExh. Nos. 1 and 3, respectively. It shows that the plaintifi herein was attended to at the hospital on the said date for the injuries claimed herein. B. The Defendant's Case 15. The defendant called its Human Resources Manager, DW1, Paul Nyandiga. His duties include occupational safety of the employees. He confirmed that the plaintifi herein was an employee of the defendants at the time of the alleged accident herein. He stated that all newly employed employees are inducted in each and every department. He, however, confirmed that the plaintifi herein was not issued with gum boots or any protective apparel or device to cover her feet. That they do not issue such apparels to employees working at the park house. He produced the accident register for the month of June, 2015, as DEXH. No.1, to prove that no such accident was reported during that month. He informed the court that the company policy as regards injuries at the workplace is that an injured employee reports to the supervisor who then refers him to the clinic. That the medical oficer at the clinic then records the injury in the accident register. He therefore denies that the plaintifi was injured while at work on the material day as claimed since there is no entry of the accident recorded in the accident register. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 3

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Issues, Burden and Standard of Proof 16. There were no pre-trial conferences conducted herein to frame or narrow down the issues herein. As already stated, the defendant failed to comply with the pre-trial procedures and/or directions which could have assisted in framing and narrowing down the issues. Such issues however fiow from the pleadings, then to the evidence adduced in proof of the claims, and then to the submissions. 17. From the pleadings herein, paragraph 5 of the Statement of Defence, when read together with paragraph 5 of the Plaint, and Paragraph 4 of the Reply, contains a serious admission on the part of the defendant. The paragraph is as follows: 'Save that an accident occurred at the time and place alleged, the Defendant denies all the allegations contained at paragraph 5 and 6 of the Plaint...' (Emphasis: mine) 18. In essence, the defendant is admitting that the accident claimed by the plaintifi herein occurred at the time and place alleged. The time and place alleged in paragraph 5 of the Plaint are 16.06.2014 (time) and 'while on duty with the defendant" (place). The plaintifi was thus indeed involved in an accident on 16.06.2014 while on duty with the defendant. The evidence adduced herein does not dispute that he was an employee of the defendant's during that date. The injury sustained by him on that date, that led to him being treated at Ol Kalou District Hospital vide PEXH. Nos. 1 and 3, are also not disputed. The medical report of Dr. Obed Omuyoma is also not challenged. The same can only be challenged by another medical report or evidence of a similar expert. Any omission to enter the accident in the company's records could have been an oversight, as the evidence herein indicates that he was so injured while on duty. The defendant's Human Resource Manager, DW1, confirmed that the plaintifi was not the oficer responsible for making the entries. The entries in the register was to be made by the medical oficer. The plaintifi cannot therefore be faulted or his credibility questioned on account of the omissions. The defendant's records were also not produced as evidence herein. The defendant has admitted to an accident on the material day and while the plaintifi was on duty with them. The unchallenged medical evidence corroborates the same. 19. Going by the admission by the defendant in its pleading, and the unchallenged medical evidence thereon, I do hereby find that the plaintifi was injured while on duty with the defendant on the material date, that led to him being attended to at Ol Kalou District Hospital where he was diagnosed with the injuries pleaded, which were further confirmed by the unchallenged evidence of Dr Omuyoma. The only issues remaining and/or worth for my determination herein are that of liability and quantum, if awardable. 20. In civil cases, the burden of proof is on each party to prove his claim. The standard of proof is a preponderance of the evidence. This means that the court must weigh the evidence presented during the trial herein and determine in the mind of the presiding oficer, myself herein, where the greater weight of the evidence, in merit and in worth, lies. Determination 21. Learned counsel for the plaintifi submitted on liability that the plaintifi was not in control of the trolley that ran over her big toe. Learned counsel for the defence on their part submitted that the plaintifi was engaged in manual labour that does not require any exceptional skill and in line with the decision in Mumias Sugar Co/ Ltd Vrs Samson Muyinda, Kakamega HCCA 58/2000 (UR), the defendant cannot be held liable. Counsel for the defendants also cited the decision of Justice C. Kariuki, in Mathara Holdings Ltd Vrs David O. Oino [2014] eKLR, that cited Justice H. Waweru's holding in the Mumias Sugar case, supra. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 4

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22. In the authority, Justice Kariuki concurred with Justice Waweru's decision in Mumias Sugar Co. Ltd Vrs Muyinda, Kakamega HCCA NO. 58 OF 2000(UNREP.) where at page 3, the judge stated as follows: The respondent's work for which he was engaged involved cutting sugarcane in an open field using a sharp panga. No machinery of any type was used in this exercise. He would hold a cane in one hand and cut its lowest point with a panga in the other hand. It was a simple operation which the respondent had full command and control. It was surely his duty to ensure that he did not cut himself with the panga. No evidence was led that in that type of work there was reasonable necessity of any type of protective clothing or that the same were provided as a matter of course in similar work elsewhere. There was no proof of hidden inherent danger in the operation of cutting down cane of which the appellant ought to have warned the respondent. To ensure that he did not cut himself with a panga was a matter that was particularly within the power and control of the respondent. 23. I however find the circumstances in the two High Court matters distinguishable from the present ones. In the cases, the claimants therein manipulated the tools that they were using to perform their work in a manner that the tools cut them. They thus injured themselves. In the present case, a trolley was carelessly manipulated by another employee which caused it to injure the plaintifi, as a result whereof she sufiered damages. Though she ought to have been alert and seen the trolley being manipulated towards her as she confirmed that she was on rest, waiting for the trolley to deliver more beans for her to sort and pack, the defendant still ought to have ensured that the plaintifi's working environment was devoid of such dangers. The plaintifi herein did not drive the trolley or exposed herself in any direct manner that endangered himself. The injury caused by the trolley was also not foreseeable by the plaintifi. It cannot therefore be said that the plaintifi herein injured herself in the same manner as the claimants in the two High Court cases referred to herein. 24. The plaintifi herein was also not provided with protective apparel for her feet that could have prevented her from such injury. The defendant did not only controvert the same, but went further to admit through the evidence of their human resources manager that they do not, and did not, provide the protective devices to the plaintifi's feet. Such protective device such as gumboots should have mitigated, if not prevent, the injury sustained herein. I do therefore find the defendant to be substantially liable for failing to keep the plaintifi's working environment safe and free from hazards, and for failing to provide the plaintifi with proper protective devices that could have prevented or mitigated the injury herein. The plaintifi is found to be minimally liable for failing to be careful while working as she was expected to have avoided or taken some care to avert the accident as she confirmed that she saw the trolley being turned while she was in a rest. She also confirmed that they were working in a hurry at the moment so as to clear their shift faster and meet their target. I do therefore apportion liability at the ratio of 80%:20% in favour of the plaintifi. 25. On general damages, there were two authorities cited by the counsel that are comparable to the injury 1 proved herein . Learned counsel for the plaintifi relying on the decision in DWA Estate Limited Vrs Niko Mulaki Katambuka [2015] eKLR, submitted for Kshs. 150,000/=; while the defence relied on the authority in Eastern Produce (k) Ltd ( Savani Estate) V Gilbert Muhunzi Makotsi [2013]eKLR and proposed a sum of Kshs. 70,000/=. In the DWA Estate Limited's case, supra, the plaintifi therein sustained a soft tissue injury on his big right toe of the right leg in 2001, and was awarded Kshs. 50,000/ = being general damages. In Eastern Produce (k) Ltd case, supra, the injuries therein, though soft tissue injuries, were for injuries on the dorsal aspect of a left foot with severe injuries incurred during 1 see SILPHANUS KUMBE MURONDO VRS LAMEK MBAKA MOTEGI & ANOTHER [2013]eKLR . https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 5

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and after the injury. The most comparable injury to the present one is therefore that in DWA Estate Limited's case, supra, that was cited by the learned counsel for the plaintifi. The injury therein was sustained in 2001, over 15 years ago. Factoring the efiect of infiation, I do hereby opine that an award of Kshs. 125,000/= would adequately compensate the plaintifi for the injury herein. I am mindful of the principle of general damages that such awards are not intended to punish the defendant, but rather to compensate the plaintifi, an injured party, so far as money can be said to compensate for pain and sufiering arising out of the Defendant's negligence. 26. On special damages, learned counsel for the plaintifi has submitted for Kshs. 22,000/= being Kshs. 5,000/= for the medical report, Kshs. 15,000/= for the doctor's court attendance, and Kshs. 2000/= for the record oficer's attendance. 27. It is however trite law that claims for such special damages must not only be particularly pleaded, but must be specifically proved. There are several and countless judicial authorities on the same including the Court of Appeal decisions in SAvannah Development Co. Ltd Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd { Civil Appeal No. 160 Of 91 (ur)}, Jivanji Vrs Sanyo Electrical Company Limited (2003) 1 Ea 98 And Kenya Shell Ltd Vrs Benjamin K. Kibiru (Civil application no. NAI 97 of 1986) and the oftenly cited/ quoted famous Lord Goddard CJ's in Bohham-carter Vrs Hyde Park Hotel Ltd (1948) 64 times Law Report, 117. 28. This requirement is not merely a procedural necessity but is a mandatory requirement as held in a recent appeal decision by Korir-Lagat, J, sitting at the High Court at Kisii in Kplc Ltd Vrs Diana Achieng Ogunyo (supra); where she quoted SAvannah Development Co. Ltd Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd, supra, where the learned judges of appeal held as follows on this requirement: Having considered judicial pronouncements on the subject of special damages including the decision of this court, we can confidently state that the requirement that special damages must be explicitly pleaded and proved is not merely a procedural necessity but is a mandatory legal requirement going to the jurisdiction on the specific issue and an objection by the defendant that a plaintifi haw violated this rule may be taken at any time and even on appeal. 29. There was therefore no evidence tendered to prove the Ksh. 2000/= special damages claimed in the learned counsel's submissions, being the record oficer's (PW2) court attendance costs. PEXH. NO. 2C proves Kshs. 15,000/= attendance costs for the doctor which was not pleaded and is therefore not awardable herein. The attendance costs should also not be claimed as special damages as the same are awardable as part of the Party and Party costs. PExh. No. 2B however proves the pleaded special damages of Kshs. 5,000/= and the same is therefore awardable herein. The treatment expenses were not particularly pleaded, and were not specifically proved during the hearing. 30. The awards herein are subject to the consent judgment on liability entered into herein. 31. The plaintifi did file a demand letter addressed to the defendant herein dated 29/06/2015 pursuant to the provisions of rule 2(d) of Order 3 of the Civil Procedure Rules, 2010. The plaintifi shall therefore be entitled to the costs herein. Final Disposal Order 32. In light of the above findings, I do hereby order that judgment be and is hereby entered against the defendants herein for the sum of Kshs. 100,000/=, being general damages for pain and sufiering, and 4000/= being special damages; totalling to KSH. 104,000/=; costs of the suit and interests on all the sums at court rates. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 6

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DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS _ 25TH _ DAY OF _ AUGUST_, 2016 ALOYCE-PETER-NDEGE SENIOR RESIDENT MAGISTRATE In the presence of; Counsel for the plaintifi: Nderitu h/b Chege Counsel for the defendant: n/a Plaintifi: n/a Defendant's representative: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/8/eng@2016-08-25 7

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