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ELRCDismissedNot stated in the judgment (arising from Mombasa RMCC No 373 of 2015)· [2019] KEELRC 1821 (KLR)

Tile And Carpet Centre Warehouse v David Odhiambo Okello [2019] KEELRC 1821 (KLR)

High Court of Kenya, Employment and Labour Relations Court at Mombasa
9 April 2019
LNLinnet Ndolo
1,139 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer's appeal to cut a work injury damages award failed because appellate courts rarely disturb how trial judges size damages.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against the quantum of damages awarded by Hon. E. Mutunga, SRM, on 14 September 2017 in Mombasa RMCC No 373 of 2015. The Respondent, an employee of the Appellant, was injured by a machine on 3 October 2013 while making water tanks, suffering traumatic amputation of the right little finger, a cut on the right ring finger and a bruise on the left arm. Liability was apportioned by consent at 70% for the Appellant and 30% for the Respondent. The trial court awarded Kshs. 300,000 for pain and suffering, Kshs. 900,000 for loss of earning capacity (adopting Dr. Adede's 4% permanent partial disability and a multiplier of 25 years), and special damages of Kshs. 2,000. The Appellant contended the awards were manifestly excessive and that loss of earning capacity was not pleaded. Ndolo J restated the settled principles - from Butt v Khan, Kemfro Africa and Catholic Diocese of Kisumu v Tete - that an appellate court interferes with quantum only where the trial court took into account an irrelevant factor, ignored a relevant one, misapprehended the evidence, or arrived at an entirely erroneous estimate. The court found the pain and suffering award not excessive and held that loss of earning capacity is an integral part of general damages requiring no specific plea, and that the 25-year multiplier was reasonable. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Interference with discretionary assessment of damages on appeal

Holding

The trial court's awards for pain and suffering and loss of earning capacity were within its discretion and not inordinately high; the appeal failed

Reasoning

The court restated the settled principle that assessment of damages is discretionary and an appellate court intervenes only where the trial court took into account an irrelevant factor, left out a relevant one, misapprehended the evidence, or arrived at a figure so inordinately high or low as to be wholly erroneous. Applying those principles to the consent liability apportionment and the two medical reports, the court found no misdirection in the awards of Kshs. 300,000 and Kshs. 900,000.

p. 2
02

Whether loss of earning capacity must be specifically pleaded

Holding

No - loss of earning capacity is an integral part of general damages, so the trial magistrate was entitled to award it without a specific plea

Reasoning

The appellant argued the award under this head was unpleaded. The court found no legal basis for that proposition, relying on William J Butler v Maura Kathleen Butler, and held it was perfectly in order for the magistrate to make the award as part of general damages, and that the multiplier of 25 years was reasonable in the circumstances.

p. 2

Legal principles established

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  • 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
  • Loss of earning capacity is an integral part of general damages and need not be specifically pleaded

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs to the Respondent in this Court and in the Court below
  3. 3.It is so ordered

Authorities

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Cases cited (7)

  • Sumaria & another v Allied Industrial Ltd
    (2007) 2 KLR
  • Selle & another v Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Mbogo v Shah
    [1968] EA 93
  • William J Butler v Maura Kathleen Butler
    [1984] eKLR
  • Butt v Khan
    (1982-1988) 1 KAR 1
  • Kemfro Africa Limited T/A Meru Express Services (1976) & another v Aziri Kamumudika Lubia & another
    [1985] eKLR
  • Catholic Diocese of Kisumu v Tete
    [2004] eKLR
On appeal from
Chief Magistrate's Court at Mombasa
RMCC No 373 of 2015
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's award in a work injury suit (Employment and Labour Relations Court jurisdiction implied; no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Tile And Carpet Centre Warehouse v David Odhiambo Okello [2019] KEELRC 1821 (KLR)", Case Analysis (2019). Not stated in the judgment (arising from Mombasa RMCC No 373 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1821/eng@2019-04-09

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