Coastal Kenya Enterprises Limited v Muchiri (Civil Appeal 84 of 2017) [2023] KECA 897 (KLR)
The bottom line
#Kenya's Court of Appeal upheld an employer's liability for a worker's grader accident but cut the compensation from about Kshs 15.9 million to Kshs 11.85 million.
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 failed to give the appellant a fair hearing before the determination of the suit
- 2.Whether negligence or contributory negligence was established by either party
- 3.Whether the trial court was right in finding the appellant liable
- 4.Whether the learned Judge followed the correct principles in awarding damages
- 5.Whether there is any justification for this Court to interfere with the award
Key legal issues
#Whether the appellant was denied a fair hearing
The appellant was not denied a fair hearing; it had been given adjournments at its request and sufficient opportunity to file documents and call evidence, and the trial court was entitled to proceed in the interest of both parties.
The record showed the matter was filed in 2011, defended in 2012, and adjourned at the appellant's request at least twice. On the hearing date the appellant sought yet more time to trace witnesses; the trial court correctly refused further adjournment in the interest of justice. A party that fails to take advantage of the opportunities afforded it cannot blame the trial court.
Whether negligence was established and the appellant rightly held liable
Yes. The respondent's evidence that the grader had defective brakes was uncontroverted, the appellant called no evidence to support its plea of contributory negligence, and the appellant bore a statutory duty under section 13(1) of the Occupational Safety and Health Act 2007 to ensure a safe system of work.
The respondent testified that the brakes and sleeving system failed; no evidence was led to the contrary. The appellant's pleaded allegations of the respondent's own negligence were unsupported by any evidence. The employer's statutory duty to provide a safe system of work was breached by assigning a defective grader. The trial judge's finding of negligence was therefore sound.
Whether the Court should interfere with the damages award
The award for loss of earning capacity and future earnings was interfered with: the multiplier reduced from 33 to 28 years and the increment on the multiplicand reduced from 80% to 50%, yielding Kshs 8,845,200; the awards for pain and suffering and special damages were upheld.
The trial judge applied the maximum possible multiplier to retirement age and an 80% increment without accounting for the vicissitudes of life and employment realities in Kenya. A 28-year multiplier and a 50% increment were considered reasonable. The 65% incapacity figure came from uncontroverted medical evidence, and the multiplicand of Kshs 28,000 was likewise unchallenged.
Distinction between loss of earning capacity and loss of future earnings
The two heads are distinct: loss of future earnings is real assessable loss proved by evidence; loss of earning capacity is compensated as part of general damages once proved.
Relying on SJ v Francesco Di Nello, Fairley v John Thomson Ltd, Mumias Sugar v Francis Wanalo and the Butler v Butler principles, the Court confirmed that compensation for diminution of earning capacity is awarded as general damages, while future earnings require proof of actual assessable loss. The trial court's composite award had to conform to these principles.
Legal principles established
#- An appellate court may only interfere with a damages award if it is an erroneous estimate - inordinately high or low - because the trial judge proceeded on wrong principles, took into account irrelevant or failed to take into account relevant factors, or misapprehended the evidence.
- Loss of future earnings and loss of earning capacity are distinct heads: the former is compensated for real assessable loss proved by evidence; the latter is compensated as part of general damages once proved.
- On a first appeal, the Court of Appeal's duty is to reconsider the evidence and the law and come to its own conclusion, giving allowance for the fact that the trial court had the advantage of seeing the demeanour of witnesses.
- Pleadings are mere allegations of fact and cannot take the place of evidence; a party who pleads contributory negligence must prove it by evidence.
- The choice of a multiplier is a matter of the court's discretion which must be exercised judiciously, and the determination of the multiplier is a question of fact to be determined from the peculiar circumstances of the case, accounting for the vicissitudes of life rather than adopting the maximum possible multiplier.
Court orders
#- 1.The award of Kshs 3,000,000.00 for pain, suffering and loss of amenities is upheld
- 2.The award for loss of earning capacity and loss of earnings prospects is reduced to Kshs 8,845,200.00
- 3.Special damages of Kshs 5,000.00 upheld
- 4.The appellant to pay the respondent a total of Kshs 11,850,200.00 plus costs in the trial court, and interest from the date of judgment in the trial court
- 5.No order as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment describes this as a first appeal, reconsidering evidence and law)
Relief refused
#The appellant's grounds seeking to overturn liability and to reverse the finding of a fair hearing
The appellant was afforded a fair hearing and the trial court's finding of negligence was supported by uncontroverted evidence
Costs of the appeal by the respondent
The appeal only partially succeeded
Costs
Since the appeal has only partially succeeded, there shall be no order as to costs; the appellant shall pay the respondent costs in the trial court.
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.
In the end, the appeal fails on all other grounds save on the issue of the award on loss of earning capacity and loss of future earnings. The trial court's finding on the same is hereby set aside.
The appellant therefore shall pay the respondent a total of Kshs 11,850,200.00 plus costs in the trial court, and interest from the date of judgment in the trial court.
Lastly, since the appeal has only partially succeeded, there shall be no order as to costs.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneousness estimate.
Pleadings are mere allegations of fact, and cannot take the place of evidence.
This being a first appeal, our responsibility as a first appellate Court is to reconsider the evidence and the law and come to our own conclusion, giving allowance for the fact that the trial court had the advantage of seeing the demeanour of the witnesses.
Issues in the judgment
#The memorandum of appeal's grounds refer to the appellant as the respondent and vice versa; the court itself notes the confusion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Coastal Kenya Enterprises Limited v Muchiri (Civil Appeal 84 of 2017) [2023] KECA 897 (KLR)", Case Analysis (2023). Court of Appeal at Nairobi (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/897/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.