Garton Limited v Nancy Njeri Nyoike [2016] KEHC 5371 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  294 OF 2010

GARTON LIMITED …………………………………………..  APPELLANT

VERSUS

NANCY NJERI NYOIKE …………………………………….RESPONDENT

JUDGMENT

1. This appeal arises  from the judgment  and decree of Honourable  Ms Boke  Resident   Magistrate in Kandara  RM CC No. 214 of 2009 delivered  on 1^st  July 2010 allowing the  respondent/plaintiff’s  claim against  the appellant/defendant and awarding  her  the sum of kshs 160,000/- general damages  less 20% contribution together  with costs.
2. The  respondent’s suit against  the appellant  in the lower court is that on or  about the 23^rd December, 2008 the respondent  NANCY NJERI NYOIKE who was employed  by the appellant  GARTON LIMITED as casual labourer was  collecting  coffee on the appellant’s farm when an antelope hit her  leg and escaped  leaving her with injuries.  She claimed for damages   for pain and suffering.
3. The appellant  filed defence  on 15^th June  2010 denying  the respondent’s  claim and averring that the  claim by the respondent  was  fraudulent  and lacked  proof.
4. In her  judgment  delivered  on 1^st July  2010 the trial  magistrate  found  the appellant  liable  at 80%  and apportioned  20% liability  to the  respondent.  She awarded the respondent kshs 160,000/- costs and interest.
5. Being  dissatisfied  with the  judgment  and decree of the lower court, the appellant herein lodged this  appeal on 27^th July 2010 setting  out 9 grounds of appeal namely:

1. The Learned  magistrate  erred  in law in failing  to appreciate that the  court lacked   jurisdiction  to hear the  suit and  grant the orders sought  on the grounds  that  the work  Injury  Benefits  Act  was  the applicable  law, in regard  to injuries  sustained  at the work place, at  the time  of the alleged  accident.
2. The Learned Magistrate erred in law in failing to appreciate that a claim for injury by a wild animal ought to have been under Section 62 of the Wildlife (Conservation and Management) Act Cap 376 Laws of Kenya.
3. The  Learned Magistrate  erred in  law  in failing to appreciate  that  the respondent  had not proved  her case  on a balance  of probabilities  as required by law.
4. The  Learned Magistrate  erred in  law  in holding  that the  appellant  was 80% liable for  the alleged  claim despite  there being no  evidence  before her  to support  the alleged  liability.
5. The Learned Magistrate erred in law in failing to take into account the fact that the respondent’s evidence was inconsistent and that she had lied to the court.
6. The Learned Magistrate erred in law by making a manifestly excessive award for general damages in light of the minor nature of the injuries.
7. The  Learned Magistrate  erred in  law  by shifting  the burden  of proof  to the appellant.
8. The  Learned Magistrate  erred in  fact  and law by failing to  appreciate  that the  appellant  does  not rear  antelopes  on its  farm  and  has no control over  wild animals .
9. The Learned Magistrate erred in awarding costs to the respondent.

6. The appellant prayed that the appeal be allowed dismissing   the respondent’s suit with costs to be paid by the respondent. 
7. This  being the first  appeal, this  court is  mandated  under Section  78 of the Civil Procedure Act to reassess, re-evaluate and  re-examine the evidence  in the lower court and  make  its own findings and  arrive at  its independent  conclusion, bearing in mind  the fact that it  never heard and or saw  the witnesses as they  testified. ( see Sielle  Vs Associated  Motor  boat Company Ltd[1968] EA 123 where Sir Clement De le Stang stated that:

“ This  court must  consider the evidence,  evaluate itself and draw its  own conclusion though in doing so it should   always bear in mind that  it neither  heard witnesses  and should  make due  allowance  in this respect .

However, this court  is not  bound necessarily to follow the trial judge’s findings  of fact if  it appears  either  that he had  clearly failed  on some  point to take account of particular  circumstances or  probabilities  materially  to estimate the evidence  or if  the impression based on the demeanor  of a witness is inconsistent  with  the evidence  in the case  generally ( Abdul Hammed  Sarif V Ali Mohammed  Solan [1955] 22 EACA 270).

8. Applying the above principles of law as established, the respondent testified as PW1 and stated that she was a casual labourer in coffee picking and that on the material day of 23^rd December, 2008 she had gone to pick coffee at the appellant’s farm which had a nearby bush. An antelope emerged from the bush and hit her on the leg and it ran away as she fell down. She was taken to Naidu Hospital where she was admitted and discharged on 26^th December 2008 she produced a copy of discharge summary as exhibit. Later she went to Kandara Hospital in 2009 over the same leg which was paining and she went to Muruka dispensary and Kandara Health Centre on 16^th January 2009 for further treatment.  She also visited Dr. Karanja who examined her and prepared her a medical report which she produced as an exhibit.  She also produced a receipt for kshs 3000/- being the doctor’s charges.  She blamed  the appellant  for  the injury  because the farm  was not fenced  and the appellant  did not  provide  her with protective  gears  or watchman or security  officer  to watch over her  as she  worked near the bush which had  wild animals  like the  antelope  that hit her  on her left  foot.  She prayed for damages, costs of the suit and expenses incurred.
9. In cross examination the respondent maintained that the entire farm was not fenced.  She also responded  that there  was a bush nearby  hence  wild animals  were there; that  she  was not alone when  she  was injured.  She stated that  she  was 34 years old but  when she went to Prime Medical Centre in 2009 she  was  confused  and could not recall her age  which she gave as  28  years.  She stated  that she  was injured  on 23^rd November  2008 and that she went to that hospital  in November  2009 and stated that the doctor  must have  recorded  her age  from her  initial treatment  notes.  She confirmed her name and that she knew Simon Ndichu Warachi.  She stated that she went to Muruka Dispensary later and confirmed knowing how an antelope looked like a goat and that it emerged from the bush.
10. In re-examination, the respondent  stated  that she was illiterate and  therefore could  not tell what the  doctor  wrote  but that  she took to him  treatment  notes  from  Naidu  Hospital.  She  further  stated that she  was unconscious  when  she was taken  to Naidu Hospital.
11. The plaintiff closed her case without calling any other witnesses.  The defence called   2 witnesses.  DW1 Freda Machuya testified  on oath that she   was a field supervisor for  the appellant  and that on the material day  she  was  in the field with  the respondent  and 25 others when  she was  called  that someone  had fallen  down.  That the  other workers said they did not  see any wild animal and that the appellant  did not  rear wild animals.  She also stated that the farm was fenced with Kayapple fence and no one could enter through the fence.  That the farm had a gate and no animal could enter through the fence.  She stated that she had worked for the appellant for 12 years and had never heard of a wild animal.  That  she  took the respondent to the office  where she  was given money to  escort  her to Naidu Hospital and that the  respondent  was walking  on her  own not unconscious.
12. On being cross examined, DW1 confirmed being a supervisor for 17 years and that on the material day she was on the farm with the respondent.  She stated  that she was called, went  and found  the respondent  had  fallen down, and that she did  not witness  the incident as she  was supervising  25 people.  She confirmed that the farm had a barbed wire and kayapple fence but not the wire with small holes. In re-examination DW1 maintained that if the wild animal had hit the respondent then other workers could have seen it. 
13. DW2 Kennedy Kibisu testified  on oath  and stated  that he was the  appellant’s field clerk, responsible  for recording   of names of workers and paying  them in the  evening their daily  wages.  He  confirmed  that the respondent  was a casual worker  picking  coffee and on the  material date, the respondent  was  taken to the office by her supervisor  alleging  that she had been hit   by an  antelope.  DW2 gave her first aid and she was taken to Naidu hospital.  He  stated that whenever one  was injured  in the course  of  duty, they had to  administer  first aid  before taking  them to  hospital and in the case of minor  injury first aid  would be sufficient.  He stated that it was the appellant who catered for the bills incurred by the respondent in hospital.
14. According  to DW2, the appellant grew coffee and not rearing  of wild animals  and that they had  30 watchmen/guards who watched   over the farm patrolling the farm  which was fenced  with barbed  wire to avoid  their products being stolen and there was only one gate  and no one  would enter without  a gate pass.  He further stated that animals could not enter the farm as it was fenced and there was tight security.  He stated that after being discharged from hospital, the respondent went back to work   and that coffee picking was not a skilled art requiring any training.
15. In re-examination DW2 confirmed that the respondent was injured in the course of duty and therefore it was the appellant’s responsibility to take her to hospital.  He also stated that an antelope   was an intruder and that it could access the farm by jumping. In re-examination DW2 maintained  that  there  were no  wild animals  near the  farm and that  according to investigations carried  out by the appellant, no one saw  the antelope  enter  the farm.
16. In  their submissions  in the lower court  the respondent’s counsels maintained  that it  was the negligence  of  the appellant  that led to the injury in that the appellant breached  statutory/contractual duty  by failing  to ensure  that  the area where the respondent  worked  was safe; that  they exposed  her to danger; failed to erect  a high wall  to ward  off stray wild animals  in an area  which was  prone to  wild animals.  She attacked the defence by the appellant that it never proved that there was a fence.  On quantum, it  was submitted that  kshs 200,000 would adequately  compensate  the respondent  for the injury sustained relying on Nyeri HCC 320/1998 Catherine  Wanjiku  Kingori  & 3 Others  V Gibson Theuri.  She also prayed for shs 3000/- as pleaded with costs.
17. In their submissions the appellant’s  counsels maintained  that the court  had no jurisdiction to grant  the orders  sought and they relied  on work  Injury Benefits  Act of  2007 Section  16 therefore  which they contended expressly ousted the jurisdiction  of the court. The appellant further submitted  that the claim by the respondent  did not lie against the appellant as the appellant  was not  responsible  for rearing of wild animals and that  therefore  the claim  if any would only be against  the Kenya Wildlife  Service pursuant  to Section 62 of the Wildlife  Conservation and Management  Act) Cap 376  Laws  of Kenya, through the District  Committee. Further, that the injury  by a wild  animal  was not  reasonably   foreseen since as  an employer  the appellant had  no control  over wildlife  and  since it  did not  rear antelopes  on its  farm.  Further, it was submitted that the respondent failed to call any witness   to corroborate her allegation of being attacked by a wild animal yet she never worked alone at the material time hence she did not prove her case. It was further submitted that the  respondent  was a serial liar  to the effect that she testified  that the  farm  was not  fenced; the farm had no gate  or security guards; that her  documents  were forgeries especially the medical report  which had inconsistencies  on age and the receipt  exhibit 3  which was issued to a stranger  and prepared  well after the accident; that her oral  and documentary evidence  was fabricated  and not credible  ( relying  on Abudi Ali Mahadhi V Ramadhani Saidi  & Another CA  212[1998]. The appellant further  submitted that  no evidence  was led  to prove the  claim  which was founded  on  negligence/ breach of statutory duty  and breach  of contract.  That the  particulars   of negligence  pleaded could not  have prevented  the injuries  in the circumstances  as claimed  in that  the attack was caused  by circumstances  beyond  the appellant/defendants  control. Further, that  it was absurd to  blame the appellant  following on attack by a  wild  antelope hence  the claim was unsustainable–relying  on Charles  Worth & Percy on negligence 7^th Edition page  782-783 paragraph 12-26. The appellant  further  submitted  that not even apportionment  of liability  lay and  that the fact of  injury alone  was not sufficient  to impute  negligence by the appellant  relying on Lakhamshi V Attorney General [1971] EA  at page  121 and Muthuku V Kenya  Cargo Handling Ltd [1990] LLR 4375  (CAK)  page  3. The appellant maintained that it fenced the farm and provided security patrols and therefore   ensured the safety of all its workers and hence the injury was not foreseeable.  It also relied on Volenti non fit Injuria doctrine.
18. On quantum, the appellant  proposed sum of shs  30,000/- general damages based on Sokoro Saw Mills Ltd V Grace Nduta  Ndungu[2006] e KLR and Evanson Babu Njiru V Paul  Nyamotenyi HCC 778 of 1991 (unreported). The appellants urged the trial court to dismiss the respondent’s suit with costs.
19. In her detailed judgment  delivered  on 1^st July 2010, the trial magistrate  found that the respondent had  proved her case against  the appellant  on a balance of  probabilities  that she was knocked  down by a  speeding  antelope.  Further, that the appellant had failed to rebut the claim that the farm where the respondent worked was not fenced at the material time.  She held the appellant 80% liable for not installing a secure fence to protect the workers from wild animals.  She also blamed the plaintiff for failing to take an avoiding act after seeing the animal going towards her.  The trial magistrate awarded the respondent shs 160,000 general damages for pain and suffering, costs and interest at court rates.
20. It is that judgment that the appellant has challenged before this court. This court notes that upon the filing of this appeal, Honourable Angawa J did on 13^th October 2011 direct that the matter of the jurisdiction of the court to hear and determine the suit, which issue though raised by the defence had not been considered   by the trial court, be referred back to the trial court for trial and determination.  That issue was heard by Mr Gesora Principal Magistrate after it turned out that the trial magistrate had by then been transferred from the station.
21. In his ruling made on 19^th October 2012  Honourable T.M. Gesora  Principal Magistrate  held that  the preliminary objection  raised challenging  the jurisdiction of the court to hear and determine  any case  brought  by an employee  against  an employer  for injuries  sustained  while at  work or in the  course of  employment  was misconceived as that Section  16  of the  Work Injury Benefits Act  had been  declared  by Honourable  Ojwang J in Petition  No. 185/2008 Law Society of Kenya  V Attorney General & 3 Others  [2009] e KLR page  29 and  30 as being  unconstitutional, which  declaration had been made prior  to the decision  of the subordinate  court from which the  Deputy Chief Justice’s practice  Note and  Gazette Notice  No. 9243 of 2011 only  served to reinforce  the judgment  in the aforestated  petition.  He also held that the magistrate’s court had the jurisdiction to hear and determine claims related to work injuries.
22. In the appellant’s submissions in support of this appeal, the appellant still maintains that the trial court had no jurisdiction to hear and determine the claim which was barred by Section 16 of the Work Injury Benefits Act, 2007.  Secondly, that the respondent  was not entitled  to claim  from the appellant  as the latter  did not  rear  wild animals  but that  instead  the claim  should have  been made against  the Kenya  Wildlife  Service  pursuant  to Section 62  of Wildlife (Conservation and Management) Act which makes  provision for compensation for injuries  caused by wild animals.
23. On the burden of  proof, it was submitted by the appellant’s counsel  that the  respondent’s  claim that  she  was hit by an antelope  was not proved as she never  called any witnesses to corroborate  that  fact and  that the trial  magistrate’s finding that the  appellant ought  to have trailed the footmarks to  confirm whether  indeed  there  was an antelope  was erroneous  as she  was shifting the burden of proof from the  respondent  to the appellant.  The appellant  also faulted the trial magistrate’s finding that  an antelope  can jump  over a  fence, however thick that fence  might be and that  by so holding  she  shifted  the burden of proof  since the  respondent had testified  that there  was no fence contrary to Section  107(1)  of the Evidence Act.
24. It was also submitted  that the trial magistrate failed to appreciate  that the  respondent  had not  proved her case  on a balance of  probabilities  as required by law  for the respondent never  called  any other  person who was on the farm at  the material time to corroborate  her claim that she  was indeed hit by an antelope; that she never  called  anyone to confirm that there  was no fence or security personnel  manning the farm; that  the trial  magistrate erred in failing to  find that  the respondent  was  not truthful.
25. On whether  the respondent  was entitled  to the sums awarded  it was submitted that the  award of damages  was  manifestly excessive  and outside  the  confines of reasonableness compared  to the cited authorities.  The last  issue is that  the  trial magistrate  misdirected  herself  in law and reached  a conclusion of  issues  not before the court  by raising  the issues of light and  age of the fence  and placing  reliance  on those  issues, and that in her  determination, the trial magistrate  made a  determination  on issues  that were not placed before her.    The appellant  relied on IEBC  & Another  V Stephen Mutinda  Mule & 3 Others  [2014] e KLR wherein  it was held that the parties  are bound by their pleadings, which  in turn limits the issues upon  which a trial court  may pronounce  and that a court should only  determine a matter on the basis of  matters  properly before it.
26. The respondent was unrepresented in this appeal.  She  filed her own submissions on 4^th November 2015  which submissions nonetheless appear to have been drafted with the aid of an advocate, opposing  the  appeal and maintaining that the  appeal lacked  merit, was frivolous  and an abuse of  court  process.
27. On  the first ground raised by  the appellant  that the court had no jurisdiction as per Section 16  of the Work Injury Benefit  Act to hear  and determine  the claim, the respondent submitted  that the  ground  was baseless  and a waste of the court’s  time as the relevant  Sections  of the Act including  Section 16 of the Work Injury Benefits Act  were declared  unconstitutional, null and void   by a constitutional  court in the Law Society of Kenya V Attorney General & another (supra).
28. On ground  2 that the claim  did not  lie against  the appellant  but against   Kenya  Wildlife  Service  under Section 62 of the Wildlife ( Conservation and Management Act) Cap  376 Laws of Kenya, it  was submitted that the respondent  was injured  in the confines  of  her working  premises-   a coffee  farm  belonging to the appellant  which fact  was not denied  and that the respondent blamed   the appellant  under Work Injury Benefit Act hence  the claim was outside the  Wildlife  Conservation and Management  Act.  Further, that Section 62 of the Wildlife Conservation and Management Act does not preclude a court action.  Further, that the issue  thereof  was  not pleaded  in the defence.
29. On grounds 3,4,5,7,8,9, 9 and 10 it  was submitted by the  respondent  that the lower court correctly analyzed  evidence  and found the respondent’s  evidence  more  probable  and unshaken by the  defence evidence.
30. On ground 6 that damages awarded were excessive, it was submitted that the award of shs160, 000 was well within the jurisdiction of the court.
31. The responded urged the court to dismiss the appeal and order release to her of the decretal sum held in the joint interest earning account of the advocates.

Determination

32. I have carefully  considered  this  appeal, submissions  by both parties  and the  entire  lower court  decision, pleadings, evidence and  submissions together  with the  judicial decisions  relied on by each  of the parties  to this appeal. In my view, the grounds of appeal raise the following key issues for determination

1. Whether the trial court had the necessary jurisdiction to hear and determine the suit subject matter of this appeal.
2. Whether the claim by the respondent against the appellant was sustainable.
3. Whether the respondent discharged the burden of proving the liability of the appellant to the required standard.
4. Whether   the trial magistrate made a determination on issues not before the court.
5. Whether the quantum of damages awarded was excessively high in the circumstances.
6. What  orders  should this court make
7. Who should bear the costs of the appeal and the court below?

33. On the first  issue of whether  the trial court had the necessary jurisdiction to hear and determine  the suit, the appellant’s contention  is that  the  trial court  was expressly  barred  by the provisions of Section  16 of the work Injury Benefits Act, 2007 which was  applicable at  the material time.  That Section enacts:

“ No action shall be  by an employee or any dependant  of an  employee  for the recovery of damages in respect  of any occupational accident  or disease resulting in the disablement  or death of such employee  against  such employee’s employer, and no liability  for compensation  on the part of such employer shall arise  save  under the provisions  of this Act  in respect of  disablement  or death.”

34. The appellant  maintained even  after the trial  court made a  ruling to the  effect that  the  Section had been  declared  unconstitutional by the High Court in Law Society of Kenya V Attorney General HCC  Petition  No. 185  of  2008  that the provisions of the said Act ( Work Injury Benefits Act) ousted  the jurisdiction of the court. With utmost respect to the appellant’s counsel who must be living elsewhere, the decision in the above constitutional court case settled the issue of Section 16 of the Work Injury Benefits Act.  The  Section having  been rendered  unconstitutional is void  ab initio  and can  never be  cited in any court of law  or tribunal.  To that   extend, I  find  and hold  that the ground of appeal   was from the onset  a  non starter   and the same  is  dismissed .  I uphold the finding and holding by the trial court that it had jurisdiction to hear and determine the suit therein as between the respondent and appellant.  Since the decision  of  the Constitutional Court  was  rendered  on  4^th March  2009  and which decision has never  been challenged or overturned  by the  Court of Appeal.
35. I shall determine  the next issue  No. 2  and 3  together that is  whether  the respondent’s  claim lay against  the  appellant  and whether  the respondent   discharged  the burden of proving the negligence/breach  of statutory  duty as against  the appellant.  The appellant contended that it was not responsible for rearing of wild animals and therefore the claim against it was unsustainable.  It  further contended  that such a  claim could only lie with the  Kenya Wildlife  Service pursuant  to  Section 62  of the Wildlife (Conservation and Management Act Cap 376  Laws of Kenya  which provides that:

“ where  any person suffers  any  bodily  injury from or  is killed by any animal, the person  injured or in  the case of  a deceased person, any other person  who was dependent  upon him at the date  of his death may make application to a  District Committee established  by this Section for the award  of compensation for the injury or death…”

36. On the other hand  the respondent  maintains  that  that  ground  was  an afterthought  since the issue thereof   was not  pleaded in the defence and that  in any event, no provision in  the Cap 376  bars  the  respondent  from instituting  claims  in court  as opposed to the District  Committee.  Further, that such a  provision that ousts  the jurisdiction of  the court  to deny her  rights  under the law  is unconstitutional  and  hence this  court should  not hesitate  to  so declare it unconstitutional.  Finally  that the  cause of  action/injury  occurred  while the  respondent  was engaged  upon her work as an employee of the appellant  and in appellant’s premises hence her claim fell under   Work Injury Benefits  Act (WIBA) and not  any other  statute. 
37. What the appellant  has done is  to shift the  claim to Kenya Wildlife Service  where a person  is injured  or dies  as a result of intrusion by  a wild  animal.  In my view, that argument   seriously diverts the attention of the court to other issues which were never pleaded.  Nonetheless  that is a point  of law  which could have  been raised  before  the trial court  for trial  and determination  on merits  and not  through  submissions  thereby not according  the respondent  a fair  trial  on that  issue  of whether  the claim lay against  the appellant  or Kenya Wildlife  Service through the  District Committee.  Issues of jurisdiction must be thrashed by the court of first instance before they are lifted on appeal.  That notwithstanding  this court  finds the submission that  since the  appellant  never kept  or reared  wild animals  or antelopes  then the claim could not  lie against  it quite misplaced.  The  injury occurred  in the premises of the  appellant  while the respondent   was engaged  upon her duties, she  sued her  employer  for negligence  and or breach of statutory duty of care.  What the appellant appears  to be suggesting  is that  it was  wrongly sued  and therefore  the  suit ought to have  been  dismissed  on that ground  because  the claim  could only be brought  against another  entity.  The answer lies in Order 1 Rule 9 of the Civil Procedure Rules which enact that:

“ No suit shall be  defeated  by reason of misjoinder or non  joinder   of parties, and the court  may in every suit  deal with  the matter  in controversy so far  as regards the rights  and interests  of the parties  actually before it.”

38.  Misjoinder or non joinder of parties are technical objections and in my view irregularities which do not go to the root or substance of the matter. The court faced with the issue of misjoinder is entitled to deal with parties before it and determine issues between those parties actually before it. In this case, the respondent’s claim was predicated on breach of statutory duty of care by the appellant/employer.  If the appellant  believed  that the  Kenya Wildlife  Service  bore  the blame, then it  was  upon the appellant  to enjoin the  Kenya Wildlife  Service  as a third  party and seek  for directions before the trial commenced to transfer the liability  to the third  party should the court  find that  the appellant  was to blame.  To state that because it never kept wild animals and therefore no liability could attach to it is an argument that this court does not buy, in view of the clear provisions s of the law that non joinder of parties does not defeat a suit.          in my humble view, the trial court had jurisdiction to deal with the claim before it as between the parties before it and to determine those parties’ rights and interests as it did in this case
39. In this case I find that the respondent  had the option of  instituting   suit against  the appellant  for negligence/breach of statutory duty  of care  and or  the Kenya Wildlife  Service  through  the District Committee.  In  the former case, she, however, must  prove acts of negligence or  the alleged  breach of  statutory duty  of care  whereas in the latter case  she would not  be required to prove negligence  since she   was not to  be found in the  wild animal’s kingdom where antelopes are reared, but on her employer’s premises and it was therefore the duty of her employer the appellant to ensure that she was protected while engaged upon her duties.
40. The next  question therefore is, was the appellant  liable  for the injury  that was  occasioned  to the respondent  when she   was hit by  a straying  antelope?  The trial magistrate’s finding that there must have been indeed  an antelope that hit the  respondent  is not disputed  or challenged.  The dispute is over whether in the circumstances of this case, the appellant should be held liable. The appellant referred this court to the persuasive case of Eastern Produce (K) Limited V Ezekiel Kipchoge Tabut [2014] e KLR where an employee was bitten by a snake while at work.  The court found that the employer was not liable and noted that:

“ A part from the employer’s duty  to take  reasonable  care, an employee  cannot call upon his employer  merely  upon the ground of relation of  employer and  employee  to compensate  him for  any injury  which he  may  sustain  in the work upon which he  is engaged..” all the respondent  needed  to demonstrate  was that the snake  bite  was foreseeable  by the appellant  and in that case the appellant failed  to provide him with reasonable care.”

41. The appellant  submitted that  the  trial court  was in error  on failing  to establish  that an injury  by an antelope  was foreseeable  as the appellant did not rear antelopes.  The burden of proof lay with the respondent to prove that the injury she suffered when an antelope hit her   was foreseeable.  She pleaded and testified that the appellant did not fence the coffee farm and that there   was no watchman/guard to protect her from invasion by the wild animal.  The appellant maintained that the farm was fenced and that it had watchmen who watched over the farm. In James Finlay (K) Ltd V Evan Nyati Kisii HCC 223/2006 Sitati J Held:

“  It is now trite law that  the where  work is being  undertaken  in the field especially in a tea  plantation if an injury occurs  from events  whose occurrence  is too remote  an employer should not  be held  liable.  In this instant case the hole which  the  respondent  allegedly  fell into  is not  a man made hole it  is a hole  whose existence  was too remote  for the appellant  to  have knowledge  about.  It is therefore  against  this background  that even assuming that indeed there  was a duty of care owed to the respondent  the claim by the respondent  would not  fall as part of those  the appellant  would be  held liable  for breach of duty of care because  existence  and possibility of causing  injury  was too remote.  It is  worth noting  that it is  not under  all circumstances  that an  employee  is injured while  on duty and the employer is held  liable  in negligence or under  common law.  In the instant case, the respondent’s case is that while he picked tea, he fell into a ditch, thereby sustaining injuries to his foot and shoulders.  The question that this court must   ask itself is what   the appellant could have done to prevent the respondent from injuring himself.  It would be unreasonable to expect that the appellant would ensure that there were no holes/ditches in the tea plantation.  It is possible, as it often happens that holes in a tea plantation could be dug by wild animals over which the appellant had no control.  In my view therefore, it would be unreasonable to hold the appellant liable for the respondent’s injuries in the circumstances.”

42. From the above persuasive decision, this court is not able to establish what law exists concerning injury to employees in the field especially in the tea plantation. I would therefore decide this appeal having regard to the evidence adduced and its own circumstances. The question, is was the invasion by the antelope too remote to have been foreseen by the appellant? In the instant case, the respondent pleaded and testified that she was picking coffee when the antelope    which she identified emerged, hit her and it ran away.  She blamed  the appellant for failing to fence  the  farm to keep away wild animals thereby exposing her to danger it knew or ought to have known and failure to ensure the safety  condition to the respondent while  engaged  at work. In my view, the  respondent did  prove that the farm  was not fenced fool  proof  to keep away  wild animals and the  appellant’s witness conceded  that the  only fence  was kayapple plants and barbed wire  not chain link. In my view, barbed  wire fencing  with kayapple  cannot prevent  wild animals  from accessing  the farm hence  the admission by DW2 that the  an antelope  as an intruder  could get in through  anywhere  because it could even  jump.  I am in agreement  with the  trial court that the  appellant’s  argument  that there  was  no antelope  simply because  no one  else saw  it apart  from  the respondent does not  hold since  the plaintiff  was clear that the  antelope  was running. 
43. This court   accepts    the evidence    by the respondent as believed and analyzed by the trial magistrate who had the opportunity to see and hear her testify. In my view, the intrusion by wild animals was a foreseeable   danger that the appellant knew of ought to have known. If that were not to be the case, there is no reason why the appellant maintained that it fenced the farm to ward off any wild animals and that it had watchmen to watch over the workers as they picked coffee. In Eaves V Morris Motors [1961] 2 QB 384-386 it was held:

“ ……….that the  requirement  that  the fencing  be secure  does not  mean that it must  protect  the workman against every injury  as there is a duty to guard  against an unforeseeable   danger such as might be  caused by a  machine going in a wrong way which could be  reasonably anticipated.”

44. The Court of Appeal in the case of  Makala Mailu Mumende  Vs Nyali Golf County Club [1991] KLR 13 stated thus:

“ No employer in the position  of the defendant  would warrant  the total continuous security  of an  employee  engaged  in the kind  of work  the plaintiff  was engaged   in, but inherently, dangerous.  An  employer  is expected  to reasonably  take steps in respect of  the employment, to  lessen danger or injury to the  employee.  It is the  employer’s responsibility  to ensure a safe  working place  for its employees.”

45. In this regard, it is expected that the appellant employer when assigning   its employees to work in an environment where there is potential risk of injury through invasion of wild animals  then it is prudent for them to provide proper appliances to safeguard the workers.  The primary duty  rests  with the  employer  to prove that  there  were  precautions put in place  and brought  to the attention of  the employee but the employee  failed to adhere  and deliberately  put himself  in harm’s  way.
46. Albeit the employer appellant was not expected to baby sit its employee/respondent, in this case, it was not shown that the respondent was solely responsible for the injury that she sustained. In Halsbury’s Laws of England  3^rd Edition  VOL 28 Paragraph 28 it is  stated  thus:-

“ where  the relationship of master  and servant  exists, the defence  of volenti non  fit injuria  is  theoretically available  but is  unlikely  to succeed.  If the  servant  was  acting  under the  compulsion of his  duty  to his employer, acceptance  of the  risk will rarely be  inferred.  Owing to his contract  of  service, a servant  is not generally in a position to choose  freely  between  acceptance and rejection of the risk  and so the defence does not  apply in an action against  the employee.”

47. Section  112  of the Evidence  Act is  clear that  in civil proceedings, when  any fact  is especially within the  knowledge  of any party to those  proceedings  the burden of proving  or disproving  that fact is  upon him.  In this case, the appellant claimed that the farm was well fenced and that there was security to protect workers from any invasion. But they did not call any evidence to prove that assertion and to controvert the respondent’s testimony that there was no fence and that wild animals accessed the farm.
48. In this case I find that  the  appellant  owed  a common  law duty of care to  ensure the  safety of the respondent while  she  was engaged  upon her  duties in the appellant’s employment.  Albeit  the appellant contended that  it fenced  the farm, and that it  provided  guards, the respondent’s  evidence  that there  was a nearby  bush from which the  antelope  emerged and hit her and  that there   were other wild animals  in the  said bush  and that  she was  not provided  with any  protective  gears  was not rebutted  to the satisfaction of the court.  For example, had the respondent been provided with  a head gear  and boots, she  could not  have injured  her head  on falling down and  or the  leg on being hit  by an  antelope.  Further, albeit it was alleged that the farm was fenced and there were guards, none of those   guards were called upon to testify to the effect that at the material time they were present and prevented the entry of the wild animal into the coffee farm.  The supervisor DW1 and a field clerk DW2 were not guards and conceded that neither   were they on the farm during the incident. In addition, although the appellant was shifting blame if any to Kenya Wildlife Service, without even enjoining it to the suit herein. Furthermore, section 31 of the Wildlife Management and Conservation Act provides that :

 “Notwithstanding anything to the contrary in this Act any  occupier of land or his servant or any owner of crops or stock or his  servant, may, if necessary for the protection of his land, crops or stock,  kill any game animal which is causing material damage or loss to his  land or to any crop or stock thereon.”

49. In other words, I find that in the circumstances of this case, the appellant was entitled to protect its crops from damage by wild animals and could have in the circumstances done what was reasonable in the circumstances to prevent them from accessing the coffee farm, without contravening the above Act.
50. DW2’s evidence that the respondent’s colleagues told him that they   did not see or hear any wild animal is hearsay evidence.  Even the evidence  that there  is a gate and no one  could enter without  clearance  is neither  here nor there as wild animals  do not require  clearance  to access  places especially where  it is clear  that they could  gain access through other  areas  other than the gate, by  for example,  jumping  over the kayapple  and  barbed  wire fence, whose  height  was unknown. Whereas it  may not be possible  to prevent  the animal from jumping over  into the  farm, it is  and was  possible  to provide the respondent  with protective gears such as gumboots an helmet while working in the farm.  Furthermore, there was no evidence that the antelope could only have accessed the farm by jumping   over the fence.
51. In this case, albeit the other workers on the farm did not testify to corroborate the plaintiff’s testimony, this court   like the trial court believes her testimony.  It is also common knowledge that fellow employees may fear testifying against their employer for fear of reprisals which may involve losing their employment. The appellant was in an advantageous position. It could simply have called those employees to testify to the fact of not seeing any antelope in the farm, assuming they were close to the respondent.
52. The appellant’s counsel submitted that the respondent  was not  credible  for giving  different  age  to the doctor  who examined stating she  was 25 years;  to the hospital  where she  was treated  as 28 years  and to court  where she stated  she  was  34 years.  This court  believes  the respondent’s explanation and evidence  that when  she went  to hospital  she  was confused  and gave  her age  as 28 years. Furthermore, this court finds that the matter of the age of the respondent was not in issue and neither was it material to the determination of the claim.  It is not  disputed that the respondent  was  an adult  and was taken  to Naidu  Hospital  by the  appellant’s staff, who should  have had  and presented records  of her correct  age.  How the age of respondent could have affected or influenced the outcome of this case is not clear.  It cannot be  that the  contradictions  in her age  could  give  the court  reason  to infer that  she  was a liar.  I reject that proposition as it is not in dispute that the respondent was an adult of sound mind.
53. The trial magistrate apportioned liability at 80:20 in favour of the respondent.  In doing so, the  trial court  measured  the duty of  care and  balanced  the risk  against  the measures  necessary to eliminate  those risks.  From the respondent’s own evidence, one would infer that she knew that there were wild animals in the nearby bushes.  She therefore had knowledge of the dangers that were attendant and she too was under duty to be vigilant while working.  The contribution of 80:20 in my view as apportioned by the trial court was in exercise of her discretion.  I see no reason why I should interfere with that discretion. It was reasonable and therefore I shall not disturb it.
54. I must mention that the appellant has focused on lack of proof of negligence in all their submissions. However, in a claim  of this nature, the respondent  was in order in  claiming under common law  duty of care and  therefore  the principles  in negligence  stated in  Charles Worth & Rucy on Negligence 7^th Edition page  782-783 paragraph 12-26 though applicable in claims purely based  on negligence, are not strictly applicable to this case where the respondent/claimant was an employee and based her claim on breach of statutory  duty of care.
55. The allegation that the respondent was responsible for what befell her under the doctrine of Volenti non fit injuria in my view was farfetched and inapplicable as it was not shown how she, on her own volition inflicted injuries on herself or asked the antelope to enter into the coffee farm and hit her. In the end I find that the trial magistrate did not err when she found the appellant liable for breach of statutory duty of care to its employee the appellant to the extent that she found.
56. On the issue of whether the trial magistrate relied on matters that were not before her in determining the suit, the appellant submitted that in raising the issues of the height and age of the fence and proceeding to place reliance on these issues in making her determination, the trial court erred. I have perused the record by the trial magistrate. The trial court’s reference to the height and age of the fence is not in my humble view, extraneous. Courts are expected to make inferences on the circumstances of the case as they make their determination. In this case, it was not in dispute that the appellant owed a duty of care to the respondent while the latter was engaged upon her work. That duty in my view included the duty to provide a safe working environment and to investigate any accident involving the respondent as reported. In this case, there was no evidence that the accident involving the invasion by the antelope was ever investigated for future remedial measures to be put in place. The appellant simply put forth witnesses who denied that any such incident occurred or that any of the workers on the farm at the material time saw the antelope hit the respondent. They also stated that there was a barbed wire and kayapple fence. The trial magistrate in finding that the height or age of the fence was not disclosed did not detour as this was a relevant fact to the evidence adduced by the respondent’s witnesses that the antelope could have jumped over the fence anyway. Indeed, there was no evidence that the fence was high or thick enough that an animal like an antelope could not jump over or through to access the coffee farm. The appellant did not demonstrate what reasonable care it took to ensure the safety of the respondent while she was engaged upon her work in the coffee farm. As was succinctly stated in Halsbury’s  Laws of England, 4^th Edition vol. 16 Para 560:

“At common law an employer is under a duty to take reasonable care for the safety of his employees in all the circumstances..... So as not to expose them to an unnecessary risk.”

57.  In Winfield and Jolowicz on Tort by WVH Rogers, 14^th Edition, London Sweet & Maxwell at page 213, it is stated as follows inter alia:

“If a worker is injured just because no one has taken the trouble to provide him an obviously necessary safety devise, it is sufficient and in general, satisfactory to say that the employer has not fulfilled its duty.”

58. In my view, the conclusions reached by the trial court were reasonable and relevant  in the circumstances and did not in any way amount to importation of new evidence or matters which were neither canvassed nor pleaded by the parties. I therefore dismiss the assertion by the appellant that the trial court arrived at a conclusion based on extraneous matters.
59. On whether  quantum of damages  as awarded by the trial court   was manifestly  excessive, I am  guided by the decision in Loice  Wanjiku  Kagunda  v Julius Gachau Mwangi CA 142/2003 (unreported) where  the Court of Appeal held that:

“ We appreciate that the assessment  of damages  is more like an  exercise  of judicial discretion and hence an appellate court should  not interfere with an award of damages  unless it is satisfied  that the judge  acted on wrong  principles  of law or has misapprehended  the facts   or has for  those other reasons made a  wholly erroneous  estimate  of the damages suffered. The question is not what the appellate court would award but whether the lower court   acted on the wrong principles (see Manga V Musila [1984] KLR 257).”

60. In Butt v Khan (1982-1988) KAR 1, the Court of Appeal stated that:

“an appellate  court will  not disturb an award of  damages  unless it is so inordinately  high or low  as to represent  an  entirely erroneous  estimate.  It  must be  shown that  the Judge  proceeded  on wrong  principles, or that  he misapprehended  the evidence  in  some material  respect, and so  arrived at a figure which  was  either  inordinately  high or low.”

61. In this case I have carefully considered the decision and award of the trial court on quantum and the authorities cited by the appellant and respondent’s counsels. I find nothing on record to show that the trial court considered irrelevant matter or failed to consider any relevant matter. The trial magistrate in her judgment considered the submissions of both parties’ advocates. In those submissions were authorities relied on which formed part and parcel of the submissions. She also considered the injuries sustained by the respondent which were soft tissue injury o the left leg and head injury which necessitated her admission in hospital for 4 days. She was unable to perform her duties for two weeks and was left with recurrent headaches. In my view, kshs 160,000 general damage was not an excessively high award, which award is subject to a reduction by 20% contribution.
62. Accordingly, I refuse to interfere with that award and uphold it.  In the end, I find this appeal to be without merit and the same is dismissed.  I uphold the judgment of the trial magistrate. The respondent filed this appeal through an advocate but ended up prosecuting   it pro se.
63. It is not clear under what circumstances her advocate abandoned her or she abandoned her advocate. Costs follow the event and are in the discretion of the court. They are awarded to the successful party unless there is good cause why the court should not award costs. I award costs of this appeal to the respondent.

Dated, signed and delivered in open court at Nairobi this 9th day of March 2016.

R.E. ABURILI

JUDGE