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ELRCDismissedNot stated in judgment· [2019] KEELRC 2620 (KLR)

West Kenya Sugar Company Limited v Were (Appeal 39 of 2018) [2019] KEELRC 2620 (KLR)

Employment and Labour Relations Court
19 September 2019
MNMathews N. Nduma
1,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a Kshs. 810,000 injury award, confirming appeals rarely succeed against damages unless the trial judge made a serious error.

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 against the quantum of damages awarded by Hon. B. Khapoya SRM in Kakamega Law Courts on 13th September 2017. The respondent had been injured on 15th December 2016 in the course of employment with the appellant when a handle broke as he boarded an alternative tractor, causing him to fall and be run over. He sustained subluxation of the right shoulder joint and Potts fracture of the right leg (distal ends of the right tibia and fibula). Judgment on liability was entered at 70% against the appellant by consent, and the trial magistrate awarded general damages of Kshs. 800,000 plus Kshs. 10,000 special damages. The appellant contended the magistrate misdirected himself and arrived at an inordinately high and manifestly excessive award. Applying Selle v Associated Motor Boat Company, Mathews N. Nduma J re-evaluated the evidence and the comparative authorities (James Gathuwe Ngugi, Coast Broadway, Simon Mucheri Ateko, Joseph Museemwa). The court found the injuries in the comparative cases were generally more severe, that the trial magistrate properly accounted for the passage of time, the roughly two-year healing period and the absence of permanent incapacity, and that there was no misdirection or miscarriage of justice. The appeal was dismissed with costs in both courts, and the award of Kshs. 800,000 general damages and Kshs. 10,000 special damages was upheld.

Key legal issues

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01

Standard of interference with an award of general damages on appeal

Holding

The appeal on quantum fails because the trial magistrate properly analysed the evidence and comparative authorities, and the award was neither inordinately high nor manifestly excessive

Reasoning

The court applied the principle that an award of damages is discretionary and an appellate court will not depart from it merely because it would have reached a different figure. It compared the injuries with the authorities cited (James Gathuwe Ngugi, Coast Broadway, Simon Mucheri Ateko, Joseph Museemwa), noted the trial magistrate accounted for the passage of time, the healing period of about two years and the absence of permanent incapacity, and found no misdirection or miscarriage of justice.

p. 3
02

Duties of a first appellate court

Holding

A first appellate court must re-evaluate the evidence and reach independent conclusions, while respecting the trial court's discretion on damages

Reasoning

Relying on Selle v Associated Motor Boat Company, the court restated that it must subject the trial evidence to fresh evaluation and reach its own conclusions, given that it neither saw nor heard the witnesses. However, because awards of damages are discretionary, the court may only disturb the trial court's award upon establishing a gross misdirection of law or fact resulting in a miscarriage of justice, not simply because it would have awarded a different sum.

p. 3

Legal principles established

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  • An appellate court will not disturb an award of damages merely because it would have awarded differently; it must find gross misdirection leading to miscarriage of justice
  • On a first appeal the court re-evaluates the evidence afresh, mindful that it did not hear the witnesses

Court orders

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  1. 1.Appeal dismissed
  2. 2.Award of Kshs. 800,000 general damages and Kshs. 10,000 special damages upheld
  3. 3.Appellant to pay costs of the suit in the trial court and this court

Authorities

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Cases cited (5)

  • James Gathuwe Ngugi v Multiple Haulers (EA) Limited and Moses Kasalu Kilonzo
    HCCC at Nairobi Suit No. 658 of 2009
  • Coast Broadway Company Limited v Elizabeth Aleka Achebei
    HCCC at Nairobi Civil Appeal No. 415 of 2006
  • Simon Mucheri Ateko and Another v Gordon Osore
    (2013) eKLR
  • Selle v Associated Motor Boat Company and Others
    (1968) EA 123
  • Joseph Museemwa v Julius Mbogo Mugi and 30 Others
    (2013) eKLR
On appeal from
Kakamega Law Courts (Senior Resident Magistrate)
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's award of damages (employment injury suit)

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, "West Kenya Sugar Company Limited v Were (Appeal 39 of 2018) [2019] KEELRC 2620 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2620/eng@2019-09-19

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