IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO.188 OF 2002

VERSUS

J U D G E M E N T

        This is an appeal against the judgment of the Senior Principal Magistrate Kisumu, Kisumu Chief Magistrate’s Court in CMCC No.335 of 1999. The appellant was the defendant in that suit where the respondent who was the plaintiff claimed for compensation arising from injuries he alleged to have sustained while in the cause of duty in the employment of the appellant.

        The appellant denied the claim and stated further that the claim was time barred and sought for dismissal of the suit.

        In his judgement trial magistrate entered judgment for the plaintiff and awarded damages of Kshs.120,000/=, interest and costs. The appellant being dissatisfied with the judgment filed this appeal on the following grounds:-

        Against the above grounds the appellant prayed for the appeal to be allowed and for the judgment of the trial court to be set aside.

        In evaluating and analyzing the evidence on record I shall look at the salient features of the evidence. The plaintiff’s side had 2 witnesses in support of the claim and the defence had 1 witness.

        In his amended plaint dated 24^th April, 2001 the plaintiff (respondent) claimed for compensation under the workman’s compensation and under common law for breach of statutory duty. He claimed that the plaintiff failed to provide him with enough work force and to provide proper working condition and facilities e.g. whistle and a rungu. In the alternative he claimed negligence on the part of the defendant by exposing him to risk, failing to give him enough workforce, enough protective devices and failing to offer basic training. The respondent claimed to have received injuries to the neck, back, abdomen, chest and head.

        In his evidence the respondent stated that he had been employed as a security officer by the plaintiff. He produced his employment card he further claimed:

PW2 Dr. Dickson Nyamogo a medical practitioner stated that on the 12^th of April, 2010 he examined the respondent who informed him that he had been attacked while on duty. He saw his treatment cards, examined him and prepared a medical report.

        The defence called one witness DW1 Tobias Otieno Osee who stated as follows:

        This being a civil case the respondent had to prove his case on a balance of probability. The respondent gave evidence of the alleged attack, injuries sustained and produced a medical report.  PW2 gave information based on what PW1 told him and on the basis medical treatment cards. The said treatment cards were not produced as exhibit though. Although the lower court alluded to the said treatment card they did not form part of the court record the appellant was justified, in its ground 3 of this appeal where it states that there was no evidence of injury before the court.

        The allegation that the respondent was hurt at his place of work in my view was not proved on a balance of probability in that no report was made to the company at the hearing of the case no eye witness was called and indeed no police report was produced yet PW1 claims that the police took him to hospital. Why did he not call evidence to support his claim?

        In the circumstances of this case in the absence of immediate treatment cards I find that there was no proof of injuries, sustained at the respondent’s place of work, for that reason this court cannot possibly find that the appellant was in breach of its statutory or common law duties and therefore compensation in the matter claimed or any other does not arise. For the claim to have succeeded the treatment card said to have been relied upon ought to have been produced. Since there was denial that an attack happened where the respondent was injured the onus of calling evidence of the attack squarely lay on the respondent yet he failed to call evidence to support his allegation.

        For the reasons stated above the judgment of the trial court is hereby set aside. In its place the case against the respondent in the lower court is dismissed. I do not make any order as to costs.