Please Wait. Searching ...
|Case Number:||Civil Appeal 53 of 2008|
|Parties:||KAIMOSI TEA (K) LTD v THOMAS BUSOLO ESIYE|
|Date Delivered:||22 Nov 2011|
|Court:||High Court at Kakamega|
|Judge(s):||Beatrice Thuranira Jaden|
|Citation:||KAIMOSI TEA (K) LTD v THOMAS BUSOLO ESIYE  eKLR|
|Case History:||An appeal from the Decision of Hon. P. A. Olengo, Resident Magistrate at Hamisi in RMC Civil Case No. 83 of 2007 delivered on 4th July, 2008|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 53 OF 2008
1. This is an appeal from the decision in REMCC Hamisi in No. 83/07 delivered on 4.7.08. Both the Judgment on liability and Quantum of damages are challenged on the following grounds;
2. In the case before the subordinate court, the Respondent had sued the Appellant for, inter alia, general and special damages arising where the Respondent was involved in an accident on 2.8.2005. In the Plaint dated 3.9.07, it is the Respondent’s (Plaintiff’s) claim that he was engaged in his employment with the Appellant (Defendant) plucking tea when he was pricked on the left leg by a sharp stamp and as a result he sustained serious injuries. It was his case that the accident was caused by negligence on the part of the Defendant, its servants, and/or employees or by the Defendant’s breach of the common law duty of case provided under Kenyan Statutory Laws.
3. The particulars of negligence were as follows;
4. The particulars of injuries were as follows;
6. Further, that in the alternative, if the accident occurred, it was occasioned wholly or substantially by the negligence of the Plaintiff. The particulars of the Plaintiff’s negligence are listed as follows;
7. The Plaintiff filed a reply to the defence denying the allegations in the defence and the particulars of negligence attributed to the Plaintiff.
8. In his Judgment, the trial magistrate apportioned liability at 80% against the Defendant and 20% against the Plaintiff. The Respondent was awarded Kshs.65,000/= general damages and Kshs.2,000/= s special damages. After deduction of the 20% contribution, the total award came to Kshs.53,600/= plus costs and interest.
10. There was no input in this appeal by the Respondents although they were duly served.
11. The Plaintiffs evidence is that he was plucking tea leaves when he was pricked by a tea stump. That the Plaintiff had no shoes and was careful and took all precautionary measures but didn’t see the tea stump. He stated that he was not issued with “gumboots or canvass”. The plaintiff produced the payslips to prove that he was working for the Defendant.
12. Everline Koyi (DW1), a nurse at the Defendant Tea Estate testified that the plaintiff was not treated at the Defendant’s dispensary on the material date (21.8.05). That the material date fell on a Sunday when no plucking of the tea takes place. The witness however admitted that the plaintiff was an employee of the Defendant. During cross-examination, the nurse stated that she does not work at the farm nor supervise workers who pluck the tea or allocate them work. The Defendant’s witness produced no records to show which days tea was plucked and the workers in attendance. No register was produced to show who was treated at the Defendant’s dispensary on the material day.
14. The evidence by the plaintiff on what transpired in the field remains uncontroverted. The nurse (DW1) was not working in the field and no records were produced to show who worked on the day. No reasons were produced in court to show if the plaintiff had been issued with any protective gear. The plaintiff’s contention is that he requested for safety gear but was not provided any.
16. I have evaluated the evidence on record and considered the authorities cited by the appellant’s counsel. The conclusion I arrive at is that the plaintiff has proved his case on liability on a balance of probability. It is admitted that the plaintiff was an employee of the Defendant. The evidence of the nurse (DW1) as analyzed above is of no probative value regarding what transpired in the field.
18. As an appellate court, I have borne in mind the principles applied by the Court of Appeal in the case of Selle & Another v. Associated Motor Boat Company Ltd. & Others (1968) EA.
19. The “patient’s notes” from Kaimosi Tea Estate Dispensary (Exh.2) describes the plaintiff’s injuries as “deep pricked wound on the left leg below the knee while on duty plucking tea.” Those injuries are consistent with the injuries described in the medical report (Exh.4) which describes the plaintiff’s injuries as a “painful wound on the left leg” which healed with a scar. The trial magistrate awarded Kshs.65,000/= general damages on a 100% basis.
20. The authorities cited by the plaintiff before the subordinate court by the plaintiff were:
21. In the instant case, the Defendant cited the following authority;
“KISUMU HCCA NO. 18 OF 2005 – LILIAN ACHIENG (a minor suing through RUSALIA ATIENO OMAYA VS NATION MEDIA GROUP” - where Kshs.60,000/= was awarded for general damages in the year 2005 for soft Tissue injuries.
22. I have taken into account what the Court of Appeal stated in the case of Ali v NYAMBU t/a Sisera Store  KLR 538:
23. Applying the above principles, I find the award by the trial magistrate was correct. He took into account comparable injuries and awards and did not apply any wrong principle. The comparable awards were made many years ago. Inflation and the cost of living must be taken into account. I find the award both fair and reasonable and I see no reason to disturb the same.
25. Orders accordingly.