Abukuse v Mahee Flowers Limited (Civil Suit 121 of 2015) [2016] KEMC 11 (KLR)

a. Exposing the Plaintifi to danger and/or injury which it knew or ought to have known in the circumstances. 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 his 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. He is represented by the law firm of Chege Munene & Co. Advocates. 4. The defendant herein entered appearance on 29/07/2015 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 duties recklessly and without any regard to his own safety. b. Exposing himself to a risk of injury he 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 conference 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 2

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before 9.00am on 16.06.2016 when the matter was to be mentioned to confirm the closure, or otherwise, of the submissions. 10. The submissions were however confirmed closed on 23.06.2016 and the matter fixed for the present judgment. Substantive facts of the case 11. The plaintifi testified as PW1. He stated that on 31.10.2013, while doing his authorised work of spraying crops he slipped on a wet surface and fell down whereby he hit and was injured by a metal rod supporting the base of a greenhouse as a result of which he fractured his 5th metacarpal bone of his right hand and further sustained soft tissue injuries of the hand which caused it to swell. That the ground access road was slippery due to overfiow of water that had been used to sprinkle the fiower beds. That it was the duty of the production manager to ensure that the sprinkled water does not overfiow. He reported the incident to his supervisor who referred him to the company's clinic. He went on to state that the clinical oficer at the clinic administered some pain killers to him. That despite the treatment, his hand became worse leading him to be referred to Ol Kalou District Hospital with a Patient Referral Note of the same date, which he produced as PEXH. NO. 1. At the hospital, he was subjected to x-rays which indicated that he had sustained the fracture on his right hand. The hand was then plastered and he was then given 6 weeks ofi-duty. He is blaming the defendant for failing and/or neglecting to maintain proper working environment which exposed him to danger by failing to maintain a drainage system. He confirmed that he was issued with protective devices but that the gloves were defective and could not therefore save him. That he was nevertheless aware that such wet surface could become slippery. He was later examined by PW2, Dr. Obed Omuyoma. 12. PW2, Dr. Obed Omuyoma, a general medical practitioner based at Nakuru, confirmed having examined the plaintifi on 26.06.2015 and prepared a medico-legal report of the same date which he produced as PEXH. No 3A. He charged him Kshs. 5000/= for the report. He produced the receipt as PEXH. No 3B. 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. 4. He confirmed that the plaintifi sustained the fracture and the soft tissue injuries on his right hand as per the report. That a Plaster of Paris (POP) was applied on his fractured hand for 6 weeks. That at the time of the examination, the plaintifi was still complaining of pain ant the right hand. He therefore classified the degree of the injury as harm. He could not however tell the exact date of the fracture. 13. PW3, Peter Wainaina, is a records oficer at Ol Kalou District Hospital. He produced the Out-Patient Treatment Card dated 31/10/2013 from the hospital as PExh. No. 2. It shows that the plaintifi herein was attended to at the hospital on the said date for the injuries claimed herein. 14. The defendant called its Human Resources Manager, DW1, Paul Nyandiga. He confirmed to the court that he was not working with the defendant in October 2013. He however 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 or her to the clinic. That statements are then recorded. That severe injuries are then referred to Ol Kalou District Hospital. He produced the accident register as DExh. No. 1 to prove that the plaintifi's accident claimed herein was not recorded. That the injury claimed herein is a serious one and could not have escaped their records. He however confirmed that the Patient Referral Note herein, PEXH. NO. 1, originated from the defendant, but that the note could be given to employees even for non-work-related injuries. That they could be a possibility of an oversight in recording the accidents herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 3

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Issues, Burden and Standard of Proof 15. 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 to proof the claims, and then to the submissions. 16. 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) 17. 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 31.10.2013 (time) and 'while on duty with the defendant" (place). The plaintifi was thus indeed involved in an accident on 31.10.2013 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 referral notes herein, PEXH. No. 1, is also not disputed. The injuries sustained by him on that date, that led to him being treated at Ol Kalou District Hospital vide PEXH. No. 2, 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 and more particularly, DEXH. No. 1, has been explained by the defendant's human resource manager, DW1. The same could have been an oversight, as the evidence herein indicates that he was so injured while on duty. The plaintifi was also not the oficer responsible for making the entries. He cannot therefore be faulted or his credibility questioned on account of the omissions. 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. 18. 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. 19. In civil cases, the burden of proof is on each party to prove his claim. The standard of proof is a preponderance of probabilities. Determination 20. The learned counsel for the plaintifi's submission on liability appears scant and or confused. The counsel appears to have confused the submissions with another related industrial accident claim which he also appeared for the plaintifi. Learned counsel for the defence on their part submitted that the plaintifi was the author of his own misfortune. They relied on the authority of Wilson Nyanyu Musigis Vrs Sasini Tea and Cofiee [2006] eKLR, where it was expressly stated that an employee cannot hold his employer liable under statute or common law where such employee is engaged in manual labour that does not require any exceptional skill and the said employee injures himself. That one cannot be trained on how to walk in a muddy patch and again, it is inevitable to have a farm without mud. That the plaintifi therefore ought to have known the nature of his job having done it for a year and he ought to have taken the necessary precautions. In the alternative, counsel for the defendant submitted for 50% liability. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 4

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21. I have gone through the authority cited. In the authority, Justice Kimaru 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. 22. 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, water was carelessly sprinkled on fiowers, and without a proper drainage system, the water overfiew into the path of the plaintifi. Though he ought to have seen the wet surface to avoid stepping on the same, the defendant still ought to have ensured that the plaintifi's working environment was devoid of such dangers. The plaintifi herein did not pour the water, or was not expected to provide a proper drainage system to prevent the overfiow of the water in a manner that endangered himself. The injury caused by the metal rod upon the slip, was also not foreseeable by the plaintifi. It cannot therefore be said that the plaintifi herein injured himself in the same manner as the claimants in the two High Court cases referred to herein. 23. The plaintifi herein was also provided with defective gloves. The defendant did not controvert the same. 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 such as eficient gloves 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 he was expected to have avoided or taken some care while stepping onto the wet surface. I do therefore apportion liability at the ratio of 75%:25% in favour of the plaintifi. 24. On quantum, the plaintifi pleaded for both general and special damages. 25. On general damages, both counsels herein were unanimous in their support for the award in Silphanu Kumbe Murondo Vrs Lamek Mbaka Motegi And Anor. [2013] eKLR. The claimant therein was awarded Kshs. 220,000/= in 2010 for much serious injuries. That award considering the injuries sustained by the plaintifi herein, would in my view be reduced to Kshs. 190,000/= at that time. The defendant's counsel submitted that figure. Considering the rise in costs of living since that time, and the present complaints, I do opine that an award of Kshs 330,000/= would adequately compensate the plaintifi herein. In making the award, 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, and also taking into account other awards for similar injuries and time lapse (see Silphanus Kumbe Murondo Vrs Lamek Mbaka Motegi & Another, Supra.). https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 5

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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. PEXH. No. 4 proves Kshs. 15,000/= attendance costs for the doctor. It was however 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. 3B however proves the pleaded special damages of Kshs. 5,000/= and the same is therefore awardable herein. 30. The awards herein are subject to the judgment on liability entered into herein. Order 31. 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. 247, 500/=, being general damages for pain and sufiering, and 3750/= being special damages; totalling to KSH. 251, 250/=; costs of the suit and interests on all the sums at court rates. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 28TH DAY OF JULY, 2016 ALOYCE-PETER-NDEGE SENIOR RESIDENT MAGISTRATE In the presence of; Counsel for the plaintifi: n/a Counsel for the defendant: Naminda Plaintifi: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 6

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Defendant's representative: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/11/eng@2016-07-28 7

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