Samuel Kimemia Gathoga v Njoro Canning Factory (K) Limited [2017] KECA 65 (KLR)
The bottom line
#The Court of Appeal restored a worker's original Kshs. 150,000 injury award, ruling a first appeal judge wrongly reduced it by overlooking stronger medical evidence.
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 Judge exercised her discretion judiciously and with reason when she interfered with the award arrived at by the trial court and revised it downwards
Key legal issues
#Scope of the Court of Appeal's mandate on a second appeal
Restricted to matters of law; no interference with concurrent findings of fact absent misapprehension of evidence.
The court invoked Onyango & Another v Luwayi, holding that on a second appeal the Court of Appeal considers only matters of law and will not disturb findings of fact of the two lower courts unless it is clear the magistrate and judge so misapprehended the evidence that their conclusions were based on incorrect bases.
Whether the first appellate judge exercised her discretion judiciously in revising the award of general damages downwards
She did not; she misapprehended and failed to consider material evidence, preferring an untested medical report over one grounded in an X-ray, treatment card and cross-examined testimony.
The Judge failed to recall that her reviewing jurisdiction was exercisable with caution. Dr. Omuyoma's findings rested on physical examination, an X-ray and treatment records, and were tested in cross-examination; Dr. Mugenya's report lacked the X-ray and original treatment card and he never testified. The appellant could not be penalised because the respondent held the medical documents. Interference on that footing was erroneous.
Restoration of the trial magistrate's award
The award of Kshs. 150,000 was commensurate with the injuries and neither inordinately high nor low.
Applying the Kemfro Africa and Butt v Khan principles, the court found the trial magistrate's award of Kshs. 150,000 was a reasonable estimate of the soft-tissue and back injuries suffered; nothing suggested it was inordinately high or low, so the High Court's reduction to Kshs. 70,000 was set aside.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not interfere with findings of fact of the two lower courts unless they misapprehended the evidence so that their conclusions were based on incorrect bases.
- An appellate court may disturb a quantum of damages only where the trial judge took into account an irrelevant factor, left out a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate of the damage.
- 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.
- A first appellate court's jurisdiction to review the evidence of the trial court must be exercised with caution; it may interfere only if there is no evidence to support the trial court's conclusion, or the trial court failed to appreciate the weight of the evidence or plainly went wrong.
Court orders
#- 1.Appeal allowed
- 2.Order of the learned Judge revising the trial court's award downwards set aside
- 3.Award of Kshs. 150,000 made by the trial magistrate restored
- 4.Appellant to have costs of the appeal both here and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- Nakuru Civil Appeal No. 52 of 2010
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Constitution/statute, restricted to matters of law
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.
This is a second appeal and our mandate is restricted to considering matters of law.
In the result, we allow the appeal, set aside the learned judges' order revising the award made by the trial court downwards and restore the award arrived at by the trial magistrate which we find was commensurate to the injuries the appellant had suffered.
An appellate court will not disturb an award of damages unless it is so in ordinately high or low as to represent an entirely erroneous estimate.
The appellant could not therefore be punished for the failure to produce them before Dr. Mugenya.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kimemia Gathoga v Njoro Canning Factory (K) Limited [2017] KECA 65 (KLR)", Case Analysis (2017). Civil Appeal No. 166 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/65/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.