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Court of AppealPartially AllowedCivil Appeal No. 65 of 2006· [2017] KECA 575 (KLR)

Ram Gopal Gupta v Nairobi Tea Packers Limited & 2 others [2017] KECA 575 (KLR)

Court of Appeal of Kenya
31 March 2017
AVAlnashir VisramMartha Karambu KoomeM.K. KoomeSKS. ole Kantai
2,578 words in judgment
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The bottom line

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Kenya's Court of Appeal more than quadrupled an injury award after finding the trial judge wrongly deducted 10% and set damages too low.

What this practically means

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Executive summary

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The appellant, formerly General Manager of the 1st respondent, was injured on 2nd March 1995 when a machine being lifted by a forklift hired from the 3rd respondent slipped and struck him. The High Court (Ang'awa, J.) found the appellant free of blame, apportioned liability 90/10 between the 3rd and the 1st and 2nd respondents respectively, and awarded agreed special damages of Shs.418,191/= and general damages of Shs.190,000/= - but inexplicably deducted 10% from the total, contradicting her own finding on contributory negligence. On a first appeal heard in the absence of the respondents (duly served by substituted service), the Court of Appeal restated the duty of a first appellate court per Selle v Associated Motor Boat Co. Ltd and allowed the appeal in part. It held that the 10% deduction was an error contradicting the express finding that the appellant did not contribute to the accident, and declared the respondents wholly to blame. Applying the Kemfro Africa principle on interference with quantum, it found the Shs.190,000/= award for pain and suffering so inordinately low - given multiple fractures, permanent incapacity of 30%, and the fact that respondents' own counsel had recommended Shs.450,000/-500,000/= - as to be a wholly erroneous estimate, and also faulted the trial Judge for assessing damages without reference to comparable decided cases. The Court substituted general damages of Shs.800,000/=, bringing the final award to Shs.1,218,191/=, with interest on general damages from the lower court's judgment and on special damages from filing suit, and awarded costs below and on appeal to the appellant. The workmen compensation complaint was not determined, being a dead issue.

Key legal issues

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01

Internal contradiction in the trial judgment between finding no contributory negligence and deducting 10% from the award

Holding

The deduction of 10% was an error contradicting the express finding that the appellant did not contribute to the accident; respondents were held wholly to blame

Reasoning

The trial Judge had found, on agreed issue 7, that the plaintiff did not contribute to the accident. Yet in computing the final award she deducted 10%, effectively reversing her own finding of fact. The Court of Appeal, exercising its duty on a first appeal, held that her mind lost track and corrected the error by holding the respondents wholly liable.

p. 3
02

Whether the award of Shs.190,000/= general damages was inordinately low

Holding

The award was so inordinately low as to be a wholly erroneous estimate of the damage and was set aside and substituted with Shs.800,000/=

Reasoning

The appellant suffered multiple fractures, permanent incapacity of 30%, leg shortening and ligament reconstruction. Even respondents' counsel had recommended Shs.450,000/= to Shs.500,000/=. Applying the Kemfro Africa principle, the award of less than half the lowest recommendation bore no relation to the injuries and justified interference.

p. 4
03

Duty of a first appellate court to reconsider evidence

Holding

A first appellate court is entitled to reconsider the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses

Reasoning

The Court restated the settled principles in Selle v Associated Motor Boat Co. Ltd: an appeal from the High Court is by way of retrial, the appellate court must re-evaluate the evidence and may depart from the trial Judge's findings of fact where the Judge failed to take account of material circumstances or probabilities.

p. 2

Legal principles established

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  • Where a trial court finds a plaintiff wholly free of blame for an accident, any deduction from damages for the plaintiff's contributory negligence is an error that the appellate court will correct by holding the defendants wholly liable
  • An appellate court may interfere with an award of damages where the trial Judge took into account an irrelevant factor, left out a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate of the damage
  • A trial court errs in assessing general damages where it fails to refer to past decided cases, compare the injuries, or lay any basis for the award

Court orders

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  1. 1.Set aside that part of the High Court judgment holding the appellant to have contributed to the accident, and hold the respondents wholly to blame
  2. 2.Set aside the award of Shs.190,000/= general damages for pain and suffering and substitute an award of Shs.800,000/=
  3. 3.Final award: general damages Shs.800,000/= plus agreed special damages Shs.418,191/=, totalling Shs.1,218,191/=
  4. 4.General damages to earn interest from the date of judgment in the lower court; special damages to earn interest from the date of filing suit
  5. 5.Costs of the court below and of the appeal awarded to the appellant

Authorities

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Legislation

  • Workmen's Compensation Act (implied by the workmen compensation ground)not specified

Cases cited (5)

  • Selle and Another v Associated Motor Boat Co. Ltd & Others
    [1968] 1 EA 123
  • Kemfro Africa Limited t/a Meru Express Services Kadogo Kanini v A.M.M. Lubia and Another
    [1982-1988] 1 KLR
  • Morris W Kahoto v David Musau and Others
    HCCC No. 182 of 1991 (unreported)
  • John Gichuru v Johnson Kihoro
    HCCC No. 4222 of 1996 (unreported)
  • Beatrice Wairimu Kimani v Kenya Bus Services Limited
    HCCC No. 3503 of 1998 (unreported)
On appeal from
High Court of Kenya at Nairobi
HCCC No. 2756 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act (appeal as of right from the High Court sitting at first instance)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ram Gopal Gupta v Nairobi Tea Packers Limited & 2 others [2017] KECA 575 (KLR)", Case Analysis (2017). Civil Appeal No. 65 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/575/eng@2017-03-31

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