Kamuya v Elgon Kenya Limited (Civil Appeal 321 of 2018)  KECA 1404 (KLR) (16 December 2022) (Judgment)
Neutral citation:  KECA 1404 (KLR)
Republic of Kenya
Civil Appeal 321 of 2018
K M'Inoti, K.I Laibuta & PM Gachoka, JJA
December 16, 2022
Peter Musyoka Kamuya
Elgon Kenya Limited
(Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (L. Njuguna, J.) delivered on 12th July 2018 in High Court Civil Appeal No. 473 of 2016)
1.Peter Musyoka Kamuya, the appellant, was an employee of Elgon Kenya Ltd., the respondent. The respondent ran a factory in Nairobi, and the appellant was an assistant machine operator. In the course of his duty, the appellant was using a palletizer machine, which is used to stack and palletize products.
2.On the night of 11th/August 12, 2009, the appellant sustained injuries on the left hand when operating the palletizer machine. The appellant then filed a suit in the magistrate court at Nairobi claiming that the accident was caused by the negligence of the respondent or its employees or agents by: failing to provide safe means of work; not providing a safe machine for removing stack material; not guarding off the dangerous parts of the machine; and not maintaining or servicing the machine, among other grounds.
3.On its part, the respondent blamed the appellant for: failing to use the proper tools that were provided; failing to employ skill and attention; failing to observe workplace safety guidelines, and for not taking adequate measures to protect himself.
4.Upon hearing the parties, the trial magistrate held that each party was to blame for the accident and apportioned liability at 90:10 basis in favour of the appellant. The relevant part of the judgment was as follows:
5.Aggrieved by the decision of the trial magistrate on both issues of liability and quantum, the respondent filed an appeal in the High Court. Upon hearing the parties, the learned Judge (L Njuguna, J) overturned the ruling of the trial magistrate on liability and quantum of damages that had been awarded, holding as follows:
6.The appellant is aggrieved by the decision of the learned Judge and has filed this appeal on the grounds that the learned Judge erred by: reducing the award of damages for loss of earning or diminished earning capacity; awarding interest in general damages from the date of her judgment; finding that the appellant was 30% liable for negligence; and in failing to apply the correct principles of law.
7.The parties filed written submissions which we have considered pursuant to Rule 58(1) as the appellant did not attend the hearing on October 3, 2022, even though they had been served. On its part, the respondent’s counsel Mr Karanja Njenga indicated that they would rely wholly on their written submissions.
8.We have carefully considered the record of appeal, the written submissions and the authorities. The appellant prays that this Court allows the appeal, set aside the judgment of the High Court dated July 12, 2018 and substitute therefor, with the judgment of the trial magistrate dated July 6, 2016, and grant the appellant costs of the appeal and of the suits in the court below. The appellants submit that the learned judge was wrong in apportioning 30% liability contrary to the 10% that was the finding of the magistrate court. On its part, thye respondent submits that both parties were to blame for the accident and liability should be share equally.
9.This is a second appeal, and the approach that we should adopt is set out in many decisions of this Court. In Kenya Breweries Ltd v Godfrey Odoyo  eKLR, Onyango Otieno, JA expressed himself as follows:
10.In the cases of Maina v Mugiria  eKLR 78, Kenya Breweries Ltd v Godfrey Odoyo (supra) and Stanley N Muriithi & another v Bernard Munene Ithiga  eKLR, in their respective holdings, inter alia, held that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the two Courts below considered matters they should not have considered, or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
11.On the issue of damages, the Court pronounced itself in the case of Butt v Khan  eKLR Civil Appeal No 40 of 1977 as follows:
12.We have considered the grounds raised by the appellant and form the view that this case succeeds or fails on the following grounds: did the learned judge misapprehend the evidence that was adduced, so that the judgement is based on incorrect basis; did the court consider matters it should not have considered or did it fail to consider matters it should have considered; is the sum awarded for damages so inordinately high or low as to represent an entirely erroneous estimate; and did the Judge proceed on wrong principles or misapprehend the evidence in some material respect.
13.We have carefully read and analyzed the judgement of the learned Judge and note: that she properly directed her mind to the relevant legal principal that the appeal before the court was a first appeal, and that the court had to re-evaluate the evidence that was adduced and render its independent findings; that there was conflicting evidence between the parties on how the accident occurred; that the appellant was cut by a lump cutter machine which was not in a proper working condition; that the appellant was well aware that the machine did not have a shutter, and that he knowingly used the machine knowing it was not in a proper working condition; and that the appellant deliberately took the risk in operating the machine.
14.It is clear that the learned Judge properly addressed herself to the applicable principles on liability and on quantum. The learned Judge took into account all the relevant factors, and the award of damages that she awarded was not inordinately high or low to warrant disturbance by this Court. The learned Judge properly re-evaluated the evidence as the court of first appeal and reached the right conclusions. The learned judge correctly observed that the appellant who was operating the machine knew that it was not in a proper working condition for some time, and he knowingly proceeded to operate the machine.
15.Indeed, there was no evidence or claim that the appellant had reported to the employer that the machine was defective, and was then forced to use it. By using a defective machine, the appellant took a deliberate risk and must carry some liability for that act. It should be clear to employees that they also have a responsibility to take care of their safety, and should not expect the employer to bear full liability where it is shown that there was deliberate act of negligence or omission to take safety precautions by an employee.
16.In conclusion, we have found that the learned Judge addressed all the relevant principles, and that the award of damages was not inordinately high or low, this answers all the issues raised in the appeal. It is our finding that all the grounds of appeal fail. Accordingly, we dismiss the appeal with costs to the respondent.DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022.K. M’INOTI ..........................................JUDGE OF APPEALDR. K. I. LAIBUTA ..........................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb ..........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR