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W. E. Tilley (M) Limited v Libese (Appeal 11 of 2017) [2023] KEELRC 1159 (KLR) (15 May 2023) (Judgment)
Neutral citation:
[2023] KEELRC 1159 (KLR)
Republic of Kenya
Appeal 11 of 2017
NJ Abuodha, J
May 15, 2023
Between
W. E. Tilley (M) Limited
Appellant
and
Joseph Japheth Musasia Libese
Respondent
Judgment
1.By a memorandum of appeal filed on August 30, 2017, the Appellant herein faulted the judgment of the lower court on grounds inter alia:i.That the Learned Trial Magistrate erred in fact and in law by failing to failing to judiciously analyze the evidence on record thereby arriving at a finding that the Appellant was 100% liable which finding is untenable, unfair and manifestly unjust.ii.That the Learned Trial Magistrate erred in fact and in law by awarding the Respondent Kshs.400,000/= as general damages on the face of the medical evidence on record that indicated that he had sustained purely soft tissue injuries which award is unfair, highly excessive, exaggerated and inordinately high.
2.In support of the appeal, Mr. Muriuki for the Appellant submitted that the Appellant could not have foreseen that a nail trap would be laid on the road and that the Appellant could not be expected to have the attacks by the thugs. It was further submitted that even if the Respondent had been provided with a turn boy that would not have offered security against armed thugs. In any even criminals do not announce the time of their intended attacks.
3.Counsel further submitted that provision of security for the citizens was the responsibility of the state and not private citizens. The Appellant could not therefore be held liable for criminal activities which it had no capacity to avert.
4.Mr. Muriuki further submitted that the Appellant called its workshop manager who testified that drivers are strictly instructed to park their motor vehicles and get safe accommodation before 7.00 pm while traveling. The Respondent thus flouted the said instructions by driving at night thus exposing himself to danger. According to the witness the Respondent in his own statement stated that he had stopped at Mai Mahiu at around 7.00 pm to wait for a colleague who was driving a different motor vehicle belonging to the company. After waiting to close to an hour and failing to reach his colleague, he decided to drive alone to Suswa.
5.From the foregoing, Counsel submitted that it was apparent that the Respondent fully understood the inherent risks involved in driving at night. By deciding to drive at night against express instructions by his employer, the Respondent took upon himself the risk associated with driving at night. He was thus solely to blame for the incident which was not foreseeable by the Appellant.
6.In support of these submissions Counsel relied on the case of Mini Bakeries Limited v Reuben Kaloki Muindi HCCA No. 942 of 2004, Hudson Luvinzu Elavonga v Kenroid Ltd [2016] eKLR and Abadalla Baya Mwanyule v Said t/a Jomvu Total Service Station [2004] eKLR.
7.On quantum, Counsel submitted that they submitted before the Trial Court that an award of Kshs.100,000/= would reasonably compensate the Respondent and relied on authorities submitted before the Trial Court.
8.In the case Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, it was held that:
9.The Appellant has complained that the Trial Court erred in law and fact in holding the Appellant fully liable for the injuries sustained by the Respondent in the course of his employment when he was attacked by criminals along Mai Mahiu Suswa Road.
10.It was the Respondent’s evidence before the Trial Court that on the material date, he was sent to collect fish from Homabay. By bad luck the vehicle stepped on a nail trap and got a puncture. He stopped to change the tyre. In the process some people emerged from the bushes and beat him up and took all he had including the vehicle keys.
11.In cross examination he stated that he no turn boy on the material day and if he had one he could have fixed fast.
12.The Appellant’s witness Mr. Daniel Waiharo stated that the Respondent was advised not to drive after 7.00 pm because of security reasons and there was no need to drive at night due to the nature of the Appellant’s work. It was his evidence that the Respondent could not have foreseen the possibility of the attack.
13.Halsbury Laws of England 4th Edition Vol. 16 paragraph 562 discusses the extent of employer’s duty and states in material part as follows:
14.The Court of Appeal in the case of Abadalla Baya Mwanyule v Said t/a Jomvu Total Service Station [2004] eKLR relied on by the Appellant stated that:
15.The Respondent as a driver had a personal duty to take reasonable care not to expose himself to risk of attack or injury in the course of his work as a driver. Indeed any ordinary and experienced driver as the Respondent was deemed to know the possible risk a driver could be exposed to while stopping to change a tyre at night. There was possibility of driving on a flat tyre for a reasonable distance until safe to stop. It did not emerge from the evidence that the tyre was too damaged to move him any further to reasonable safe location for tyre change.
16.The Court further observes that the Appellant stated that drivers were advised not to drive beyond 7.00 pm. They were required to park the vehicle in safe area and look for a safe accommodation. This was contained in the Appellant’s witness statement which was served on the Respondent well in advance. He never rebutted this. A mere omission to produce such a policy in Court does not negate its existence or reasonableness in the circumstances. The Respondent in his own sense of safety was expected to be aware of that. He did not allege that he sought to stop at Mai Mahiu when it got to 7.00 pm and was refused.
17.From the foregoing, the Respondent exposed himself to risk which he could have avoided. The Trial Court to this extent erred when it did not apportion liability for negligence in this respect.
18.The Appellant on the other had was negligent in allowing the Respondent to embark on such a journey alone without the company of a turn boy. The Court agrees with the Respondent that it would have bene faster to change the tyre if they were two of them. Based on this, the Court will apportion liability at 70% against the Appellant.
19.On quantum, the Trial Court awarded the Respondent Kshs.400,000 on account of damages for pain and suffering. The Trial Court in making the award stated as follows:
20.In the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR the Court stated:
21.The Court has reviewed and considered the nature of the Respondent’s injuries, the authorities submitted before the Trial Court and analysis by that Court vis a vis the award and is not persuaded that it is too high to warrant interference by the Court. This ground of appeal therefore fails.
22.In conclusion, this Court will allow the appeal only to the extent of apportionment of liability for negligence at 70% as against the Appellant. The Respondent shall bear 30% contributory negligence.
23.Each party shall bear their own costs of the appeal
24.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF MAY 2023Abuodha J. N.JudgeIn the presence of:-No appearance for the AppellantOkao for the Respondent
