By Wahome Thuku
For nine years, James Akenga Mahero worked as a groundsman at Butere Girls High School in Western Kenya. However, on May 3, 2006, something tragic happened that changed his life.
As he was using a motorised lawnmower allocated to him for cutting grass, its blade broke and snapped, injuring him seriously on the right leg.
Akenga could not work again. Soon after the accident, he filed a suit accusing Butere Girls High School management of negligence.
He named the school Board of Governors (BOG) as respondents.
The groundsman accused the school of breaching its legal responsibility and contract by failing to ensure his safety. He blamed the management for having exposed him to danger, which they knew or ought to have known could occur.
They had failed to maintain the lawnmower and to keep it in good state of repair.
They had not provided him with proper protective gear and had not warned him of the existing risks at his workplace, the court heard.
The school had not provided him with any other safer system of performing his duties. Akenga asked the court to award him general damages and special damages for the injuries.
The BOG filed a statement of defence on May 6, 2006, denying any liability. The school claimed Akenga was solely the author of his misfortune and had contributed substantially to his injury.
victim’s failure
They accused him of failing to manage and to use the lawnmower according to instructions. He had exposed himself to danger by mishandling the machine and causing the blade to break by running it over stones and other obstacles.
The BOG said when Akenga was using the machine to cut grass he did not clear the ground. He had failed to ensure the machine was in good condition as required and had disobeyed standing orders relating to his duties.
In his oral evidence, Akenga told the court that he tried to push the lawn mower but it could not move. The blade broke and cut his right leg. He said he had used it for nine years. He knew his work and worked without supervision.
He said though he always reported any defects to the school, he was not a technician by profession.
The court heard that Akenga had been supplied with gumboots and hand gloves but they could not protect him from the injury.
The school bursar Mr Nathan Buruku Mutalii testified on behalf of the institution. He told the court that Akenga used the machine alone and it was him who informed the management if the machine required to be serviced.
Buruku said Akenga did not report any defects on the machine on the material day. But during cross-examination, the bursar admitted that Akenga was a groundsman and not a technician. He admitted there were things about the lawnmower that the grounds man could not detect.
The magistrate considered the arguments and concluded that Akenga was 40 per cent liable for the accident and the school was 60 per cent liable. In 2008, Akenga was awarded Sh50,000 as general damages and Sh3,500 as special damages for medical expenses plus costs of the suit and interest.
The BOG chairman immediately filed an appeal at the High Court in Kakamega.
The appeal went before Lady Justice Beatrice Thuranira Jaden.
The school argued that the magistrate erred in law and in fact by holding they were 60 per cent liable for negligence contrary to the evidence produced in court.
“The respondent was wholly to blame for the accident,” the BOG argued asking the High Court.
The school lawyer argued that Akenga was in charge and in total control of the lawnmower and had a duty to exercise care when pushing it.
There was no evidence tendered before the magistrate that the machine was not serviced or that it had any defect or that Akenga was forced to use it on the material day.
The BOG claimed the magistrate had erred in law and fact in failing to find that Akenga did not prove his case on a balance of probabilities. The lawyers for the two parties made written submissions.
poor servicing
But Akenga’s lawyer submitted that the machine was supposed to be serviced as per the service manual when defects could be discovered and repaired.
“The service is not dependant on the report to the school by the user,” the lawyer argued.
Justice Thuranira considered the evidence tendered before the magistrate and the submissions made to her. Though the school bursar had testified that the machine was serviced, he had not produced service records or manual at the lower court. The bursar had described Akenga’s working environment as “okay”.
The judge concluded that the lawnmower was only serviced when the groundsman made reports of defects.
“The bursar is not a technician and could not expound to the court what went wrong with the machine,” she said. “The evidence of the respondent (Akenga) was that he used to report any defects that he detected but was only a groundsman and not a mechanic.”
The judge agreed with Akenga’s lawyer that some latent defects could only be discovered and repaired during the servicing of the machine. There were no records in court to show the lawn mower was serviced.
case dismissed
“Relying on reports by the respondent who is groundsman and not a technician to have the machine services instead of having it serviced on regular basis was a failure by the appellant (the school) to exercise due care and skill,” the judge held.
She also noted that Akenga had used the machine for nine years and was, therefore, aware of the lack of regular servicing.
On June 12, this year, the judge held that the magistrate’s court had properly apportioned the liability to both parties and had not erred in law and fact.
With that, the appeal by the Butere Girls High School’s BOG was dismissed. The institution was ordered to pay costs of the appeal to Akenga.
The writer is a court reporter with the Standard Group
Email: iwahome@standardmedia.co.ke
