JUDGMENT
1. The claim in Makueni CMCC E099/2021 arose out of the claim that on 3/1/2020 - Julius Maundu Mwania a Veterinary Technician by profession was invited by the School management of Makueni Boys High School to treat their sick cows.
2. Prior to this, the said Julius had won a tender to supply farm inputs to the school.
3. It is not in dispute that he had treated the school cows before at the invitation of the school.
4. On this particular day he heeded to the call and proceeded to the school farm. According to the plaintiffs, a cow that had been tethered near where he was broke loose and viciously attacked him – causing him multiple injuries.
5. The school however through its farm manager presented a different scenario - that this said Julius, acting against the advice of the school farm manager, proceeded to administer treatment to this specific cow - which reacted in pain and attacked him.
6. Sad to say - the injuries that Julius suffered led to his death on 12/2/2020.
7. After a full trial where the Plaintiffs and the defendant presented both oral and documentary evidence - the learned trial magistrate in her judgment delivered on 19/5/2022 found for the plaintiff in the following terms.
8. On liability - that the defendant had a duty of care - to ensure that its vicious cow was securely tethered – and that it had failed to do so hence it was wholly liable for the death of the deceased.
9. On quantum of damages;
10. For loss of dependency; adopted the multiplier approach, and minimum wage as the income of the deceased and made an award as follows: 21,175 x 2/3x 23 years –Ksh 3, 896,200
Special damages of Kshs. 666,884
Pain and suffering and loss of expectation of life – Kshs. 100,000 each.
Costs were awarded to the plaintiff
11. The defendant was aggrieved and filed this appeal on the following grounds :-
1) That the learned Magistrate erred in law and in fact in entertaining a claim of the Work Injury Benefits Act contrary to section 23(1) of the Work Injury Benefits Act which vests jurisdiction to adjudicate over Work Injury Benefits Act upon the Director of Occupational Health and Safety.
2) That the learned Magistrate erred in law and in fact in misrepresenting the evidence of the appellant’s witness and therefore arrived at a wrong judgment.
3) That the learned Magistrate erred in law and in fact in finding the appellant school liable for the death of the deceased despite the overwhelming evidence on record to the contrary.
4) That the learned Magistrate erred in law and in fact in failing to address herself on the issue of Independent Contractor and thereby arrived at a wrong judgment.
5) That the learned Magistrate erred in law and in fact in failing to apportion liability on 50:50 basis despite the evidence on record that the deceased was equally negligent.
6) That the learned Magistrate erred in law and in fact in awarding damages under the Fatal Accidents Act which were inordinately high and in particular by awarding a multiplier of 23 years without a basis for the same.
7) That the learned Magistrate erred in law and in fact in failing to deduct the damages awarded under the loss of expectation of life from the total damages awarded under both the Law Reform Act and Fatal Accidents Act thereby causing the Respondent to benefit twice.
8) That the learned Magistrate erred in law and in fact in finding that the Respondent had proved her case on special damages despite the fact that she did not prove the same.
9) That the learned Magistrate erred in law and in fact in finding that the respondent was entitled to special damages despite basing the same on illegible receipts.
10) That the learned Magistrate erred in law and in fact in awarding costs to the respondent.
11) That consequently the learned Magistrate’s decision occasioned a miscarriage of justice.
12. The appellant sought the orders;
a) That the appeal be allowed.
b) The judgment and decree of the Chief Magistrate’s Court at Makueni in Civil Case NO. E099 of 2021 by Hon. J. Otieno Resident Magistrate dated and delivered on 19th May, 2022 be set aside and instead be substituted with a judgment dismissing the suit or in the alternative apportioning liability 50:50.
c) That the costs of the appeal be borne by the respondent.
13. Parities field written submissions - which I have considered.
14. From the grounds of appeal - the issues to be determined appear as follows;
i. Whether this was a Work Injury Benefit claim as per Section 23(1) of the Work Injury Benefit Act.
ii. Whether this was the case of an independent contractor.
iii. Whether the deceased equally contributed to the accident
iv. Whether the Plaintiffs proved the special damages
v. Whether the award of general damage was inordinately high.
vi. Whether the award of costs was in error.
15. On the 1st issue, it is noteworthy that the appellant argued that the plaintiff’s case was that of an independent contractor in the subordinate court and now argues that this was a Work Injuries Benefit Act . The respondent based his claim on the Occupier’s Liability Act.
16. Section 23(1) of Work Injury Benefit Act speaks to an employee who sustains injury in the course of work. It states: Inquiry by Director: After having received notice of an accident or having learned that an employee has been injured in an accident the Director shall make such inquiries as are necessary to decide upon any claim or liability in accordance with this Act.
17. Was the deceased an employee of the appellant? Section 5 (1) defines an employee and states Meaning of "employee": In this Act, "employee" means a person who has been employed for wages or a salary under a contract of service and includes an apprentice or indentured learner
18. The appellant did not produce any evidence to show that indeed the deceased was its employee at the material time as defined by the law. Neither did I find evidence of any report by the appellant to the Director of an accident involving its employee.
19. In addition the the appellant argues that the deceased was an independent contractor. The appellant cannot argue both positions. Either the deceased was an employee falling under WIBA and that the trial court had no jurisdiction to hear a Work Injuries Benefits claim or the deceased was an independent contractor.
20. On the issue of jurisdiction and the claim that this was a Work Injuries Benefit Act matter, It is evident that the appellant did not produce any evidence to support that claim in the subordinate court.
21. On the issue of independent contractor the court is guided by the Court of Appeal in Board of Governors St. Mary’s School v Boli Festus Andrew Sio [2020] KECA 952 (KLR). The Judges cited Selle & Another v Associated Motor Boat Company Limited & Others [1968] EA 123 where “The appeal was against findings by the trial judge that the boat man was neither a servant nor agent of the respondents but an independent contractor for whose tort they were not answerable, and that the respondents, as common carriers, were not in breach of their contractual duty to carry their passengers without negligence. It was held that where a person delegates a task or duty to another, not a servant to do something for his benefit, or for the joint benefit of himself and the other, whether that other person be called agent or independent contractor, the employer will be liable for the negligence of that other in the performance of the task, duty or act. It was further held in the case that the boat men were the agents of the respondents and the service was operated for the joint benefit.” De Lestang, VP, in obiter dictum: “A person employing another is not liable for that others collateral negligence unless the relation of master and servant existed between them at the material time; the existence of the right of control is usually a decisive factor in deciding whether the relationship of master and servant exists. “The judges concluded: What Selle and Another (supra) is saying is that a principal will be responsible for the acts of a servant where the servant is carrying out a task on behalf of the principal. ( emphasis mine)
22. In the case at hand the person involved was not an employee or servant of Julius hence this could not have applied to him
23. The court went on to say: That is not the same when the task involves employment of an independent contractor. This issue is well captured in Charlesworth on Negligence 4th Edition, Sweet and Maxwell. On the subject of “independent contractors” the learned author declares that an employer is not liable for the negligence of an independent contractor or his servant in the execution of his contract. He says: “Unquestioningly, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servant commits some casual act of wrong or negligence, the employer is not answerable.” (Emphasis mine)
24. The argument here is that the deceased was in the School compound as an independent contractor and that while carrying out his contracted work he was negligent and therefor the school could not be held liable for his negligence.
25. There were two things in this case. The record shows that indeed the deceased had been contracted to supply farm inputs to the school through a tender. It has been argued that he acted outside this contract and therefor the school could not be held liable. If that were so then this would a sound argument.
26. However on this material date, the evidence is that the school found out their cows were sick. The farm manager made calls to various Vets but only the deceased was available. The manager with the authority of the school management invited him to administer treatment to the sick cows. He heeded the call and went to the school farm.
27. It is clear that the deceased had not gone to the farm on account of his tender to supply farm inputs. He was specifically invited by the school management to treat their cows. He did not anticipate that he would be attacked by one of the cows even before he began to administer the treatment.
28. That is why I find the argument that he was there as an independent contractor, acted negligently and therefor authored his own demise untenable.
29. The respondent argued from the start that the applicable la here was the Occupier’s Liability Act. CAP. 34. Section 3(1) . Provides for the Extent of occupier’s ordinary duty thus: An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. Section 3(5) provides that exception thus The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).
30. The facts are that the defendant having invited the plaintiff to its premises owed him the duty of care. There is nothing to show that the deceased had willingly accepted any risks regarding the work he had been invited to do. The appellant other than denying that the cow was vicious and not properly tethered did not provide evidence to support that claim. It is my view then that the appellant failed in this respect and liability falls on itself for negligence for injuries sustained by the deceased.
31. In seeking to establish contribution on the part of the deceased, it was argued that the deceased acted in a hurry to treat the cows. It is not disputed that the deceased was injured by the cow. It was not demonstrated that the cow had been given any treatment by the deceased at the time it attacked him. It has also not been demonstrated that the deceased was in hurry to treat the cow. The evidence on record is that the cow attacked him before he even began to treat the cows
32. it was conceded by the appellant that it was not the deceased’s first time to treat the cows in the school and it is admitted that he was familiar with the school cows . No evidence of contributory negligence was established.
33. On quantum of damages, the contested issue is on award on the loss of dependency. It is submitted for the appellant that the 23 years applied by the trial court as the multiplier was on the higher side. I have looked at the submissions on CTS by both counsel. The respondent has set out authorities that demonstrate that the award - in terms of the multiplier was not an outlier and that the learned trial court was within conventional awards.
34. On the income of the deceased I looked at the record and the submissions before the subordinate court. The appellant adopted the minimum wage of Kshs. 21,175 which is what the trial court adopted in arriving at its award.
35. Hence it is my view that the award was not excessive/ or inordinately high.
36. On special damages the appellant accepted that the sum of Kshs. 410,409/50 was supported by a legible receipt.
37. On funeral expenses , the respondent’s position is that courts have taken the view that it may not always, be possible to plead and prove funeral expenses the same as other special damages - and courts have awarded what they considered reasonable funeral expenses. I have looked at the authorities cited and I am in agreement with those submissions.
38. I have looked at the documentary evidence in support of the special damages. It is not correct that the only legible receipt is that from Kijabe AIC Hospital - there were receipts from Rapha Hospital , and from Beryl chemist, two or three are illegible ETR receipts but there are accompanying receipts for the sums claimed
39. I would not disturb the claim for special damages.
40. Did the trial court err in awarding costs to the respondent?.
41. Costs follow the event.
42. The upshot is that I find the appeal to be without merit, and dismiss it with costs to the respondent.
Dated signed and delivered this 28th Day of March 2025
Mumbua T Matheka
Judge