Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 254 of 2018· [2019] KECA 130 (KLR)

Sosines Orindo v Emkay Builders Limited [2019] KECA 130 (KLR)

Court of Appeal of Kenya
22 November 2019
Martha Karambu KoomeM. K. KoomeHOHannah OkwenguSKS. ole Kantai
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal restored a worker's KShs 900,000 injury award, ruling judges cannot cut damages without citing comparable cases or accounting for inflation.

What this practically means

#

Executive summary

#
This second appeal from the High Court (L. Njuguna, J) concerned only the quantum of general damages. The appellant, a construction worker injured in April 2009 when metal bars fell on him, obtained a consent order on liability at 90% against the respondent employer, and the trial magistrate awarded him general damages of Kshs. 900,000/- plus special damages of Kshs. 2,000/-. The respondent's first appeal succeeded before the High Court, which reduced the general damages to Kshs. 500,000/- on the basis that the appellant's injuries were less severe than those in the comparable case of Lucas Kinoru, where six teeth were lost against the appellant's three. Allowing the appeal, the Court of Appeal held that the learned Judge failed to take into account relevant factors, notably inflation, and that she cited no authorities with comparable injuries to justify the reduced figure. Applying the settled principles in Kitavi v Coastal Bottlers Ltd, the Court held that an appellate court may only disturb a damages award where the trial court took into account an irrelevant factor or where the award is so high or so low as to amount to an erroneous estimate. The trial magistrate's award was neither. The Court allowed the appeal, set aside the High Court's judgment on quantum, reinstated the trial magistrate's award of Kshs. 900,000/- as general damages, and awarded the appellant the costs of the appeal. The appeal was determined on written submissions, the respondent not appearing though submissions had been exchanged.

Key legal issues

#
01

Threshold for appellate interference with an award of damages

Holding

The High Court misdirected itself by interfering with the trial court's award when the award was neither erroneous nor excessive; the trial magistrate had taken into account appropriate comparable authorities.

Reasoning

The Court reiterated the settled principles in Kitavi v Coastal Bottlers Ltd that an appellate court disturbs a damages award only where the trial court took into account a factor it ought not to have taken into account, or where the award is so high or so low as to amount to an erroneous estimate. The trial magistrate had analysed the comparable authorities properly, so the award of Kshs. 900,000/- was within the permissible range.

p. 4
02

Failure to consider comparable authorities and inflation when reducing an award

Holding

The learned Judge erred by reducing the award without citing comparable authorities and by ignoring inflation between the date of the comparable award and the judgments below.

Reasoning

The Judge treated the trial court's award as excessive merely because the appellant's injuries differed slightly from those in the cited case, failing to account for inflation since the comparable award of 7th November 2008, and offered no comparables or justification for the reduced figure of Kshs. 500,000/-.

p. 4

Legal principles established

#
  • An appellate court may only disturb an award of damages where the trial court took into account a factor it ought not to have taken into account, or where the award is so high or so low as to amount to an erroneous estimate.
  • On a second appeal, the Court addresses issues of law only, and the assessment of damages on the evidence is treated as a question of fact for the lower courts, with interference only on settled principles.
  • A appellate court reducing a damages award must justify the reduction with reference to comparable authorities and relevant factors such as inflation.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Judgment of the High Court on the quantum of damages set aside
  3. 3.Judgment of the trial magistrate reinstated, including the award of Kshs. 900,000/- as general damages
  4. 4.Appellant awarded the costs of the appeal

Authorities

#

Cases cited (9)

  • H. West & Son Ltd vs. Shepherd
    (1964) AC 326
  • Agnes Kamene Mulyali vs. Harvest Limited
    [2017] eKLR
  • Kenya Bus Services & Another vs. Mayende
    [1992] 2 EA 232
  • Kitavi vs. Coastal Bottles Limited
    [1984] LLR 213 (CAK)
  • Singh vs. Singh and another
    [1955] 22 EACR 129
  • Butt vs. Khan
    [1977] LLR 2 (CAK)
  • Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko
    [2006] eKLR
  • Lucas M. Kinoru & Anor v Hakika Transport Limited & Anor
    HCCC No. 7 of 1998 Mombasa
  • Kitavi vs. Coastal Bottlers Ltd
    [1985] KLR 470
On appeal from
High Court of Kenya at Nairobi
HCCA No. 637 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act, confined to matters of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Sosines Orindo v Emkay Builders Limited [2019] KECA 130 (KLR)", Case Analysis (2019). Civil Appeal No. 254 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/130/eng@2019-11-22

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