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Court of AppealDismissedCivil Appeal No. 54 of 2012· [2016] KECA 278 (KLR)

Madrugada Limited v Cosmas Kipkoech Sigei [2016] KECA 278 (KLR)

Court of Appeal of Kenya
2 August 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
1,903 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a Ksh 2.26 million injury award, ruling that damages can only be overturned if they are plainly excessive or wrong in principle.

What this practically means

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Executive summary

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The respondent, an employee of the appellant company, sustained crush injuries to his left hand while operating an oat-crushing machine, resulting in amputation. Liability was settled by consent at 65:35 in the respondent's favour, and the High Court at Nakuru (Maraga, J.) entered judgment for a net award of Ksh 2,262,000. The appellant appealed on quantum only, contending the award was excessive, that the trial judge failed to consider its evidence and submissions, and that the awards for loss of earning capacity (Ksh 780,000) and for fitting a prosthetic limb (Ksh 700,000) were unjustified. Counsel for the appellant argued that loss of earning capacity was never pleaded and that the respondent, being an unskilled manual labourer, could work post-amputation; the respondent maintained the award was properly founded on evidence and consistent with prior awards. The Court of Appeal, in a unanimous judgment, restated its role on a first appeal - to reconsider and evaluate the evidence with due allowance for not having heard the witnesses - and reaffirmed the Butt v Khan principle that an award will not be disturbed unless it is an entirely erroneous estimate or rests on wrong principles or a material misapprehension of the evidence. Critically, the court found that the appellant's memorandum of appeal did not specifically plead the complaints on loss of earning capacity and the prosthetic limb, and no leave was sought under Rules 86(1) and 104(a) of the Court of Appeal Rules to canvass them. The court therefore confined itself to reviewing the global award, which it found to be within proper guidelines and consistent with the comparable Rumano award, taking into account prevailing inflation. The appeal was dismissed with costs. The decision binds lower courts to the rule that appellate interference with damages requires an entirely erroneous estimate and that grounds of appeal must be specifically pleaded in the memorandum of appeal.

Key legal issues

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01

Scope of first appellate court's role on appeal against quantum

Holding

The first appellate court must reconsider and evaluate the evidence, allowing for the fact it did not hear the witnesses, and will not disturb an award unless it is an entirely erroneous estimate or founded on wrong principles

Reasoning

The court adopted the classic formulation in Butt v Khan and the passage from H. West & Son Ltd v Shephard, holding that assessment of damages involves imponderables and appellate tribunals should not dismiss an award merely because it differs from their own assessment.

p. 3
02

Effect of failure to plead specific grounds of objection in the memorandum of appeal

Holding

Complaints about the award of loss of earning capacity and the prosthetic limb were not specifically pleaded in the memorandum of appeal and no leave was sought, so the court was confined to examining the global award as a whole

Reasoning

The court invoked Rules 86(1) and 104(a) of the Court of Appeal Rules, observing that the appellant's memorandum did not make reference to the specific complaints and leave to canvass them was never sought. Consequently the global sum of Ksh 2,262,000 had to be examined in light of the submission that it was excessive.

p. 3

Legal principles established

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  • 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, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect
  • On a first appeal, the court must reconsider and evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses
  • A party may not, without leave, argue on appeal any ground not specified in the memorandum of appeal or a notice of cross-appeal

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 86(1)
  • Court of Appeal RulesRule 104(a)

Cases cited (8)

  • Nzoia Sugar Company Limited vs Capital Insurance Brokers Limited
    [2014] eKLR
  • Mbaka Nguru & Another vs James George Rakwar
    [1998] eKLR
  • Mwangi & Another vs Mwangi
    [1996] LLR 2859
  • Naomi Wanjiku Rumano vs Alice Wanjiku Rumano & Another - Nairobi HCCC No 233 of 1999
  • George Kirianki Laichena vs Michael Mutwiri - Civil Appeal No 162 of 2011
  • H. West & Son Ltd vs Shephard
    [1964] AC 326
  • Naomi Wangui Rumano vs Alice Wanjiku Kimani & Another - Nairobi HCCC No 223 of 1996
  • Butt vs Khan
    [1981] KLR 349
On appeal from
High Court of Kenya at Nakuru
Nakuru HCCC No. 176 'B' of 2005
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 86(1) and 104(a) of the Court of Appeal Rules invoked at the hearing)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Madrugada Limited v Cosmas Kipkoech Sigei [2016] KECA 278 (KLR)", Case Analysis (2016). Civil Appeal No. 54 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/278/eng@2016-08-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.