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ELRCDismissedCivil Appeal No 4 of 2018· [2019] KEELRC 2006 (KLR)

Export Trading Company Limited v Ramadhan Shiundu Murunga [2019] KEELRC 2006 (KLR)

Employment and Labour Relations Court
21 March 2019
2,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant appealed against the quantum of damages awarded by the trial Magistrate in favour of the Respondent, a loader who suffered fractures to both femurs, ligament injury to the knee, fractures to three toes and soft tissue injuries when bags of rice collapsed on him on 3rd July 2014 in the course of his work. Liability had been settled by consent at 20:80% in the Respondent's favour, leaving only quantum, and the trial court awarded Kshs. 2,437,040, comprising general damages of Kshs. 1,200,000, loss of earning capacity of Kshs. 1,843,200 computed on a 16-year multiplier, and Kshs. 250,000 for future medical expenses. On appeal, Linnet Ndolo J grouped the grounds into three strands. First, the court upheld the trial Magistrate's preference for Dr. Ndegwa's opinion assessing permanent disability at 28% over Dr. Sheth's 15%, since Dr. Ndegwa gave detailed reasons while Dr. Sheth gave none, and the appellate role was limited to asking whether the Magistrate had reason for his choice. Second, the 16-year multiplier was upheld: the Respondent was 29 and worked at heavy lifting, there was no evidence he could not work to 45, and the argument that the award should have been scaled by the disability percentage was a new issue not canvassed at trial. Third, the Kshs. 250,000 future medical expenses award stood because future medical expenses are not special damages requiring strict proof but rest on a reasonable medical opinion. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Probative weight of the two competing medical reports on permanent disability

Holding

The trial Magistrate was entitled to prefer Dr. Ndegwa's opinion (28% disability) because it was reasoned, whereas Dr. Sheth's opinion (15%) gave no reasons for his conclusion

Reasoning

Dr. Ndegwa gave a detailed account supporting his 28% assessment, while Dr. Sheth's report, though admitted by consent, contained no reasons for the 15% figure. The trial Magistrate expressly found the 15% opinion not fully explained. The appellate court's role was limited to asking whether the Magistrate had reason for his choice, and he did.

p. 3
02

Whether the 16-year multiplier for loss of earning capacity was erroneous

Holding

The multiplier was not erroneous; there was no evidence the Respondent could not continue heavy-lifting work to age 45, and disability percentage need not be applied to loss of earning capacity

Reasoning

The Respondent was 29 at the time of the accident and worked at heavy lifting. Nothing showed he could not continue to 45. The argument that the award should have been scaled by the disability percentage was a new issue not canvassed at trial and could not be entertained on appeal. Loss of earning capacity is assessed on the job held at the time of the accident.

p. 3
03

Whether Kshs. 250,000 for future medical expenses required strict proof as special damages

Holding

Future medical expenses are not special damages; they rest on a reasonable medical opinion of future care, so the award stood

Reasoning

The Appellant wrongly classified future medical expenses under special damages. Special damages reimburse sums already spent, whereas future medical expenses are based on a doctor's assessment of future care and may vary once incurred. Where the medical opinion is on the whole reasonable, the court has no basis to disagree with it.

p. 3

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses
  • 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 calculated on the basis of the job occupied by the plaintiff at the time of the accident; the degree of overall permanent disability is not a necessary factor
  • Future medical expenses are not special damages requiring strict proof; they rest on the reasonable opinion of a medical doctor as to future care

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

Authorities

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Cases cited (6)

  • Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Kenya Ports Authority v Kuston Kenya Limited
    [2009] 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
  • Zachary Waweru Thumbi v Samuel Njoroge Thuku
    [2006] eKLR
On appeal from
Chief Magistrate's Court, Mombasa
CMCC No 1893 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court judgment in Mombasa CMCC No 1893 of 2015

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, "Export Trading Company Limited v Ramadhan Shiundu Murunga [2019] KEELRC 2006 (KLR)", Case Analysis (2019). Civil Appeal No 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2006/eng@2019-03-21

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