Nispan Construction Company Limited v Imanuel Mukera Temesi [2020] KEELRC 1835 (KLR)
The bottom line
#A Kenyan employer lost its appeal against a worker's Kshs.400,000 injury award because it could not prove the compensation was excessive.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in assessing permanent incapacity at 45%
The assessment of 45% was proper, falling between the doctors' assessments of 60% and 14.5%, and took account of the nature of the injury and resultant incapacity
Both doctors agreed on the nerve injury but disagreed on degree of incapacity. The First Schedule of WIBA covers loss of thumb (25%) and loss of hand at wrist (60%); the claimant's injury lay between these. The court found no error in the trial magistrate's mid-range assessment, noting the thumb was numb and could not straighten and the whole hand was affected.
Whether the award of general damages of Kshs.400,000 was excessive
The award was not excessive; the injuries had not healed over six years after the accident and were therefore permanent
The appellant argued the injuries were soft tissue in nature. The court noted that at hearing in June 2014 the injuries had not healed, more than six years after the February 2008 accident, indicating permanent injuries unlikely to heal. No irrelevant factors or misapprehension of evidence were demonstrated.
The duty of a first appellate court
A first appellate court must re-evaluate and re-assess the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
Relying on Ol Pejeta Ranching Limited v David Wanjau Muhoro and Kenya Ports Authority v Kuston (Kenya) Limited, the court restated the mandate to reconsider the evidence, evaluate it itself, draw its own conclusions, and rule only on the evidence on record without introducing extraneous matters.
Legal principles established
#- On a first appeal the court must re-evaluate, re-assess and re-analyze the evidence on record and determine whether the conclusions reached by the trial court should hold
- An appellate court will not interfere with an award of damages unless the lower court acted on wrong principles or made an award so inordinately high or low as to represent a wholly erroneous estimate of damages
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Senior Principal Magistrate's Court, Nairobi
- CMCC No. 6655 of 2010
- Jurisdiction invoked
- Appeal transferred from the High Court to the Employment and Labour Relations Court by order of Githua J. dated 12th October 2018 in HCCA No. 552 of 2014, the dispute being between employer and employee
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nispan Construction Company Limited v Imanuel Mukera Temesi [2020] KEELRC 1835 (KLR)", Case Analysis (2020). ELRC Appeal (from Nairobi CMCC No. 6655 of 2010; earlier HCCA No. 552 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1835/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.