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ELRCDismissedNot stated in the judgment· [2021] KEELRC 948 (KLR)

Dominion Outdoor Advertising (2006) Limited v Patrick Wachira Muranga [2021] KEELRC 948 (KLR)

High Court of Kenya (Employment and Labour Relations Court — Employment and Labour Relations Court at Nairobi)
23 September 2021
2,803 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 dismissed an employer's appeal, upholding a road accident award against it because it produced no evidence to rebut claims of defective brakes.

What this practically means

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Executive summary

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This was a first appeal from the judgment of Senior Principal Magistrate E.K. Usui delivered on 8th September 2016 in a road traffic accident claim by a driver against his employer. The appeal was argued on four grounds: apportionment of liability at 50%, excessive general damages, wrong principles for diminished earning capacity, and the medical expenses award amounting to unjust enrichment. The appellant also raised, for the first time in submissions, a jurisdictional objection premised on the High Court's declaration of unconstitutionality of WIBA Section 16 (Petition No. 185 of 2008, Ojwang J). The court applied Kenya Ports Authority v Modern Holdings to entertain the point, but held that since the suit was filed on 21st May 2014 while that declaration was still in force, the magistrate's court had jurisdiction under the common law and the Law Reform Act; the subsequent Court of Appeal and Supreme Court decisions restoring WIBA could not apply retroactively to nullify a judgment already delivered. On the merits, applying Samuel Kamere, Peters v Sunday and Selle v Associated Motor Boats, the court found no basis to disturb the magistrate's 50/50 apportionment, the plaintiff's testimony on defective brakes and worn-out tyres being unrebutted and the inspection report discredited. Applying Kemfro Africa, the quantum awards were upheld, the plaintiff's injuries being more serious than the comparators cited. The appeal was dismissed in its entirety, judgment entered for the respondent at Kshs 777,569 after 50% contribution, with interest and costs of both courts.

Key legal issues

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01

Jurisdiction of the magistrate's court over the WIBA-era suit

Holding

The preliminary objection on jurisdiction failed. At the time the suit was filed (21/5/2014), the High Court decision declaring WIBA Section 16 unconstitutional was in force, so the magistrate's court had jurisdiction under the common law and the Law Reform Act; the subsequent Court of Appeal and Supreme Court decisions restoring WIBA did not apply retroactively.

Reasoning

The court reasoned that jurisdiction is assessed at the time of filing. Since the suit was filed while the High Court's declaration stood, the magistrate's court had jurisdiction in terms of the common law and the Law Reform Act. The later appellate decisions reversing the declaration could not retrospectively nullify a judgment already delivered on 8th September 2016.

p. 2
02

Liability for the road traffic accident

Holding

The trial magistrate's apportionment of liability at 50% each was upheld; the plaintiff's uncontroverted evidence of defective brakes and worn-out tyres stood, and the inspection report was discredited as its maker did not testify.

Reasoning

The court found the magistrate's finding rested on uncontroverted eyewitness evidence, and the motor vehicle inspection report was a general report whose maker was never called to elaborate its contents. The appellant produced no cogent evidence to rebut the testimony that the vehicle had defective brakes and worn-out tyres at the time of the accident.

p. 3
03

Quantum of damages

Holding

The awards of Kshs 700,000 for pain and suffering, Kshs 500,000 for diminished earnings, Kshs 720,000 for future medical expenses and Kshs 235,138 special damages were upheld as neither excessive nor erroneously estimated.

Reasoning

The court applied the Kemfro Africa principles and compared comparable injuries in the authorities cited. The plaintiff's injuries — stiff, deformed fingers after at least four operations, permanent disability of 30–50% — were more serious than the injuries in the appellant's comparator cases, which were also over ten years old. Special damages were supported by receipts.

p. 4

Legal principles established

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  • Jurisdiction is a fundamental matter that can be raised at any stage, even for the first time on appeal
  • On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions, but cautiously, and will not disturb the trial court's decision merely because it would have decided differently
  • An appellate court may only disturb a quantum of damages if the trial judge took into account an irrelevant fact, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate

Court orders

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  1. 1.The appeal is dismissed in its entirety and the decision of the trial court is upheld
  2. 2.Judgment entered in favour of the respondent against the appellant as follows: Pain and suffering – Kshs.700,000; Diminished earning – Kshs 500,000; Future medical expenses – Kshs 720,000; Special damages – Kshs 235,138; less 50% contribution, leaving Kshs 777,569
  3. 3.Interest at court rates from the date of the trial court judgment to payment in full
  4. 4.Costs of the trial court and of this appeal to the respondent

Authorities

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Legislation

  • Work Injury Benefits Act (WIBA)Section 16 (and Sections 4 and 16, as declared unconstitutional and later restored)
  • Law Reform ActNot specified

Cases cited (11)

  • Kenya Ports Authority –vs- Modern Holding (E.A.) Limited
    2017 eKLR
  • Ojwang, J, High Court Petition No. 185 of 2008
    delivered 4/3/2009
  • Civil Appeal No. 13 of 2011 (setting aside the WIBA declaration)
    judgment 17/11/2017
  • Petition No. 4 of 2019 (upholding the Court of Appeal on WIBA)
  • Samuel Kamere –vs- Lands Registrar Kajiado
    Civil Appeal No. 28 of 2008
  • Peters –vs- Sunday
    (1958) E.A. 424
  • Selle –vs- Associated Motor Boats Company Limited
    (1968) E.A. 123
  • Kemfro Africa Limited t/a Meru Express Services, Gathogo Kanini –vs- A.M.M. Lubia & Another
    (1982-88) I KAR 777
  • Kenya Tea Development Agency –vs- Augustine Gori Makori
    (2014) eKLR Nairobi HCCA No. 136 of 2005
  • Samba Posho Mills Limited – vs- Onguti
    (2005) eKLR Nairobi HCCA 65 of 2002
  • Caroline Wanjiku Karimi –vs- Simon K. Tum and Shami Trading Company Limited
    Civil Case No. 368 of 2010 eKLR
On appeal from
Senior Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court decision (magistrates' court appeal), the appeal having been filed pursuant to dissatisfaction with the judgment of Senior Principal Magistrate E.K. Usui delivered 8th September 2016

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, "Dominion Outdoor Advertising (2006) Limited v Patrick Wachira Muranga [2021] KEELRC 948 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/948/eng@2021-09-23

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