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Court of AppealAllowedCivil Appeal 211 of 2018

Jacob Nyongesa Mukhula v Pioneer Plumbers Limited

Court of Appeal
16 December 2022
HOHannah OkwenguHOH. A. OmondiJMJ. Mativo
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal restored a worker's full injury compensation, ruling judges cannot cut damages awards without clear legal or factual reasons.

What this practically means

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Executive summary

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This is a second appeal against the High Court's partial reduction of a magistrate's award in a workplace injury claim. Liability had been agreed at 75:25 in the appellant's favour. The magistrate awarded general damages of Kshs.2,600,000, loss of earnings of Kshs.4,343,000 (salary of Kshs.13,405 multiplied by 12 and a multiplier of 27 years) and special damages. On first appeal, Mbogholi, J left general damages intact but recomputed loss of earnings as diminished earning capacity at 70% of salary over a reduced 20-year multiplier, and ordered interest on general damages and loss of earnings only from the date of the High Court judgment. The Court of Appeal, per Okwengu, Omondi and Mativo, JJA, allowed the appeal. Applying the settled rule that a second appeal is confined to matters of law, it held the Judge erred in introducing a 70% disability ratio found in no medical report and in cutting the multiplier by seven years without reasons. It reaffirmed the distinction between loss of earnings (actual, strictly proved loss) and loss of earning capacity (general damages), finding the appellant had suffered real loss of earnings given his brain injury, speech and gait deficits and lack of alternative skills. The court also held the Judge misdirected himself in disturbing the interest award when no error on interest was complained of in the first appeal. The High Court judgment was set aside, the magistrate's award of Kshs.5,213,370 reinstated, interest to run from the trial court's judgment, with costs of the appeal to the appellant.

Key legal issues

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01

Distinction between loss of earnings and loss of earning capacity

Holding

Loss of earnings connotes actual, quantifiable loss of income proved by material evidence, while loss of earning capacity relates to future ability to earn and is awarded as general damages. The High Court erred in treating the appellant's claim as one of diminished capacity only.

Reasoning

The court adopted SJ v Francesco Di Nello and Fairley v John Thomson, restated in Cecilia Mwangi and Butler v Butler, to hold that the two heads are distinct. The medical reports and the appellant's oral testimony showed he could not resume his previous duties and had no other skills for gainful engagement, so he had suffered real loss of earnings which the trial court properly assessed.

p. 4
02

Basis for interfering with the multiplier and the 70% disability ratio

Holding

The High Court gave no reason for reducing the multiplier from 27 to 20 years and no legal or factual basis for the 70% ratio, none appearing in the medical reports; the trial court's multiplier of 27 years was reasonable.

Reasoning

The trial court considered the appellant's age, payments made by the respondent, life expectancy in Kenya (64.80 years per World Bank Data for 2015) and the retirement age of 60. The choice of multiplier is discretionary but must be based on parameters; absent reasons, the first appellate court's interference was an error of principle justifying reinstatement of the trial court's assessment.

p. 5
03

Interference with the award of interest absent a complaint on appeal

Holding

The High Court misdirected itself in disturbing the trial court's order that interest run from the date of the trial court's judgment, since the memorandum of appeal before the High Court raised no error on interest.

Reasoning

Interest is discretionary but an appellate court must identify an error in the exercise of that discretion. Perusal of the memorandum of appeal before the High Court showed no complaint against the interest award. The unexplained interference resulted in a miscarriage of justice, warranting restoration of interest from the date of the trial court's judgment.

p. 6

Legal principles established

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  • On a second appeal the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Loss of earnings is actual, quantifiable loss that must be specifically pleaded and strictly proved, while loss of earning capacity is compensated as general damages once proved on a balance of probability.
  • A first appellate judge may not introduce a mathematical disability percentage or reduce a multiplier without any legal or factual basis; the choice of multiplier is discretionary but must rest on identified parameters.
  • Interest is discretionary, but on appeal it must be shown that the trial court erred in the exercise of that discretion; a first appellate court cannot disturb an interest award where no error on interest was complained of.

Court orders

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  1. 1.Judgment of the High Court delivered on 16th May 2018 set aside
  2. 2.Judgment of the Magistrate's Court reinstated: pain, suffering and loss of amenities Kshs. 2,600,000.00; loss of earnings Kshs. 4,343,000.00; special damages Kshs. 7,940.00; less 25% contributory negligence Kshs. 1,737,790.00; total Kshs. 5,213,370.00
  3. 3.Interest on damages to accrue from the date of judgment in the trial court at court rates until payment in full
  4. 4.Costs of the appeal awarded to the appellant
On appeal from
High Court of Kenya at Nairobi
HCCC No. 605 of 2015
Jurisdiction invoked
Second appeal to the Court of Appeal under its appellate jurisdiction (Constitution and Appellate Jurisdiction Act not expressly cited in the judgment)

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, "Jacob Nyongesa Mukhula v Pioneer Plumbers Limited", Case Analysis (2022). Civil Appeal 211 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1397/eng@2022-12-16

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