Bildad Mwangi Gichuki v TM-AM Construction Group (Africa) [2002] KECA 191 (KLR)
The bottom line
#Kenya's Court of Appeal nearly tripled an injured mechanic's compensation, ruling courts must pay for all the years a permanently disabled worker cannot earn.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge applied a wrong principle in assessing general damages for pain and suffering, such that the award of Ksh.250,000 was so inordinately low as to require interference and enhancement.
- 2.Whether the learned Judge erred in assessing loss of future earnings or diminished earning capacity for only two years.
- 3.What multiplier properly reflects the appellant's loss of earning capacity for the rest of his working life (the 'lost years'), given his age of 43 and permanent incapacity.
Key legal issues
#The principles upon which the Court of Appeal will interfere with a trial judge's assessment of damages.
The Court interferes only where the trial judge applied a wrong principle - taking into account an irrelevant factor, failing to take into account a relevant factor, misapplying the law or misapprehending the evidence - or where the award is so inordinately high or low that some error of principle must be evident.
The Court traced the test through its own precedents: Kemfro Africa Ltd t/a Meru Express Service v AM Lubia and Kenya Bus Service v Fredrick Mayade, quoting Kneller JA in Robert Msioki Kitavi v Coastal Bottlers Ltd, who relied on Singh v Singh and Handa and Butt v Khan. The test asks not whether the appellate court would have awarded differently, but whether the trial judge took into account something he ought not, omitted something relevant, or produced an award so high or low that it amounts to an erroneous estimate. The Court then applied this test to both challenged heads of award.
Whether the award of Ksh.250,000 for general damages for pain and suffering was inordinately low.
Yes. The award was set aside and substituted with Ksh.400,000, the injuries (a fractured pelvis, three fractured ribs and segmental fracture of the left femur) being severe enough to warrant a higher award, with comparables ranging between Ksh.200,000 and Ksh.500,000.
Mr Kaburu argued the judge ignored comparable authorities and that the award should have been Ksh.400,000 to Ksh.500,000. The Court observed that none of the comparables exceeded Ksh.500,000, awards ranging between Ksh.200,000 and Ksh.500,000 for similar injuries. On its own consideration of the general trend in the authorities placed before the trial judge, it found the injuries severe enough to warrant a higher award and the figure of Ksh.250,000 so inordinately low that interference was required; it substituted Ksh.400,000.
Whether the trial judge erred in assessing loss of future earnings or diminished earning capacity for only two years.
Yes. The two-year multiplier had no evidential basis. The appellant, permanently incapacitated, was entitled to compensation for the lost years; a multiplier of seven years (to age 50) was applied, substituting Ksh.532,000 for Ksh.156,500.
Uncontested facts established that the appellant was a 43-year-old mechanic earning Ksh.6,500 basic plus variable overtime, and his doctor assessed permanent incapacitating injuries at 50%. He had not worked since his dismissal in December 1996, remained in pain and dependent on painkillers. The Court held that a claimant in salaried employment who can no longer continue in employment or find a suitable job loses his earning capacity for the rest of his working life and must be compensated for the lost years; the two-year multiplier had no basis. It applied a multiplier of seven years, taking the appellant to age 50.
Legal principles established
#- An appellate court will interfere with a trial judge's assessment of damages only where the judge applied a wrong principle (took into account an irrelevant factor, failed to take into account a relevant factor, misapplied the law or misapprehended the evidence) or where the award is so inordinately high or low that an error of principle must be evident.
- A claimant who, through the defendant's negligence, loses the capacity to earn for the rest of his working life is entitled to compensation for the 'lost years', and the multiplier must reflect that loss rather than an arbitrary short period.
- A claimant who was in salaried employment before the accident is entitled to claim loss of future earnings.
Court orders
#- 1.The appeal is allowed.
- 2.The award of Ksh.250,000/= given as general damages for pain and suffering and loss of amenities is set aside and substituted therefor with an award of Ksh.400,000/=.
- 3.The award of a sum of Ksh.123,500/= for past loss of earning will remain undisturbed.
- 4.The award of future medical care for the sum of Ksh.70,000/= will also remain undisturbed.
- 5.The award of Ksh,156,500/= for diminished earning capacity is set aside and substituted therefor with an award of Ksh.532,000/=.
- 6.Taking into consideration the agreed 20% liability of the appellant, the total amount due to the appellant is Ksh.900,400/= with interest thereon at court's rates with effect from the date of the judgment of the superior court.
- 7.The appellant shall have the costs of the appeal and in the court below paid by the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 1617 of 1998
- Jurisdiction invoked
- No constitutional or statutory provision is invoked in the judgment; it is a first appeal from the High Court of Kenya at Nairobi to the Court of Appeal in a civil matter.
Relief refused
#The respondent's contention that the trial court's awards were proper and should be left undisturbed (no cross-appeal was filed).
The Court found both challenged awards inordinately low or without any evidential basis and interfered with them, allowing the appeal on both grounds.
Costs
The appellant shall have the costs of the appeal and in the court below paid by the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Those principles are that the trial judge must have applied a wrong principle, for instance, taking into account an irrelevant factor or failing to take into account a relevant factor or misapplying or not understanding the correct law or not correctly appreciating the evidence adduced, or short of these, the damages awarded by the court are so inordinately high or low that some error of principle must be evident.
The Court of Appeal in Kenya, then, should, as its fore-runners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so high or so low that it amounts to an erroneous estimate.
Accordingly, we set aside the award of Ksh.250,000/= and substitute it with one of Ksh.400,000/=.
the appellant had lost his capacity to earn for the rest of his working life due to the negligence of the defendant. He was therefore entitled to compensation for the "lost years".
Taking into consideration the agreed 20% liability of the appellant, the total amount due to the appellant is Ksh.900,400/= with interest thereon at court's rates with effect from the date of the judgment of the superior court.
The appellant shall have the costs of the appeal and in the court below paid by the respondent.
Issues in the judgment
#Arithmetical inconsistency within the judgment: Ksh.6,500 x 12 x 7 equals Ksh.546,000, but the Court states the substituted figure as Ksh.532,000. The final total of Ksh.900,400 after the 20% deduction is consistent with Ksh.532,000 (400,000 + 123,500 + 70,000 + 532,000 = 1,125,500; less 20% = 900,400), not with Ksh.546,000.
The past loss of earnings award is recorded as Ksh.123,000 in the summary of the trial court's award (a figure consistent with the stated total of Ksh.599,500), but as Ksh.123,500 in the Court's operative reasoning and in the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Colour Packaging Limited v Julius Nyerere Musili [2020] KEELRC 1908 (KLR)[2020] KEELRC 1908 (KLR)7 Aug 2020
- Ndoro Kaka Kakondo v Salt Manufacturers [K] Limited [2016] KEELRC 984 (KLR)[2016] KEELRC 984 (KLR)8 Jul 2016
Cite this brief
#Cite this brief
Caselaw, "Bildad Mwangi Gichuki v TM-AM Construction Group (Africa) [2002] KECA 191 (KLR)", Case Analysis (2002). Civil Appeal No. 152 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/191/eng@2002-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.