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ELRCPartially AllowedAppeal against the judgment in Thika Chief Magistrates' Court Civil Suit No. 560 of 2011· [2023] KEELRC 534 (KLR)

Gitogo v Shengli Engeneering Construction Company Limited & 2 others (Civil Appeal 9 of 2017) [2023] KEELRC 534 (KLR)

Not expressly named in the judgment (a first appellate court of Kenya; judge signed 'OCHARO KEBIRA, JUDGE')
28 February 2023
4,928 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan appeal court restored an injured worker's claim after finding the trial court wrongly relied on a police abstract never formally produced in evidence.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Chief Magistrates' Court at Thika (L. Komingoi, CM) in Civil Suit No. 560 of 2011, a work-injury claim. The Appellant, a labourer at the 1st Respondent's construction site, claimed he was knocked down by a hit-and-run motor vehicle while directing lorries on 28th May 2010 and sought general and special damages. The trial magistrate found he was an employee but was not injured in the course of employment, and instead entered judgment of Kshs. 1.5 million against the 2nd Respondent as owner of motor vehicle KAZ 306 Z. The Appellant appealed on liability, quantum and lost future earning capacity. The Respondents, duly notified, neither appeared nor filed submissions. The court rehearsed the duty of a first appellate court to re-evaluate the entire evidence. It found that the trial magistrate had erred in law by relying on a police abstract that was never produced or admitted in evidence, rendering it untested, unauthenticated hearsay. The court further held that the Appellant's evidence explaining why he was at the site after signing out was never analysed or rebutted, the 1st Respondent having discharged its evidential burden only through inadmissible hearsay; liability against the 1st Respondent was therefore proved on a balance of probabilities. The award of general damages was upheld, the Appellant failing to establish grounds for interference. However, the court awarded the pleaded Kshs. 150,000 for future medical expenses, proved by the medical report, and set aside the unexplained global sum of Kshs. 500,000 for lost future earning capacity, substituting a multiplier/multiplicand award of Kshs. 734,040. The appeal was allowed: liability was entered against the Respondents jointly and severally, the two additional awards made, and costs of the appeal were granted to the Appellant.

Key legal issues

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01

Whether the trial magistrate erred in relying on a police abstract that was never produced and admitted in evidence

Holding

She did err; the unproduced, untested and unauthenticated abstract materially informed her finding that the accident occurred outside working hours, and reliance on it was an error of law prejudicial to the Appellant.

Reasoning

The 1st Respondent sought adjournments to summon a police officer and trace the occurrence book, but ultimately closed its defence without producing the abstract. Applying Kenneth Nyaga Mwige v Austin Kiguta, the court held that marking or filing a document does not dispense with formal proof; a document not tendered as an exhibit remains hearsay. The abstract therefore could not found a finding on the time and place of the accident.

p. 5
02

Whether the Appellant proved that he was injured in the course of his employment with the 1st Respondent

Holding

Yes. His unrebuted evidence that he was assigned, after signing out, to wait for and direct three lorries was to be preferred over the Respondent's hearsay evidence; liability against the 1st Respondent was proved on a balance of probabilities.

Reasoning

The trial magistrate never analysed the Appellant's explanation for being at the site after signing out. The Respondent's witness's information about the time and place of the accident came from the supervisor and other workers, none of whom testified. Under Section 107 of the Evidence Act the burden lay on the 1st Respondent to prove that the accident occurred elsewhere after working hours, a duty not discharged by hearsay. The Appellant's account of how and where the accident occurred therefore stood unrebutted.

p. 7
03

Whether the award of Kshs. 1.1 million general damages was inordinately low

Holding

No. The Appellant failed to demonstrate any of the grounds for interference with the discretionary award, and the appellate court declined to disturb it.

Reasoning

Relying on United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the court rehearsed the settled grounds for interfering with a discretionary award of damages. Having considered the decisions placed before the trial magistrate and the injuries sustained, the court was not persuaded that the award was inordinately low or that any ground for interference was established.

p. 8
04

Whether the trial court erred in refusing the pleaded Kshs. 150,000 for future medical expenses and in awarding a global Kshs. 500,000 for lost future earning capacity

Holding

The trial court erred on both heads. The future medical expenses were sufficiently proved by the medical report; the global earning-capacity figure was set aside and replaced with a multiplier/multiplicand award of Kshs. 734,040.

Reasoning

Dr. Moses Kinuthia's medical report assessed permanent disability at 30% and estimated the cost of further treatment at Kshs. 150,000, which the court held was sufficient proof of that head. On lost earning capacity, the trial magistrate awarded a global figure without ascribing any reasons; the court, applying Mumias Sugar Company Limited v Francis Wanalo and Moeliker v Reyrolle, employed the multiplier approach (12,324 x 5 x 12) given the Appellant's young age and diminished working capability.

p. 8

Legal principles established

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  • A first appellate court must re-evaluate the entire evidence afresh, may reach a different conclusion from the trial court, and if it reverses findings of fact must engage with the trial court's reasoning and assign its own reasons.
  • A document merely marked for identification, but never produced and admitted as an exhibit, is not evidence; reliance on it is erroneous and such a document is at best hearsay.
  • Liability cannot be escaped where a party calls no evidence, or only hearsay evidence, to rebut an allegation of negligence.
  • An appellate court will not interfere with a discretionary award of damages unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or the decision is plainly wrong.
  • An award for loss of future earning capacity should be assessed by applying correct principles and relevant factors, and a global figure awarded without ascribing reasons is erroneous; the multiplier/multiplicand approach promotes transparency and public confidence.

Court orders

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  1. 1.The learned trial magistrate's decision on liability is set aside and in place thereof judgment on liability entered against the Respondents jointly and severally
  2. 2.The Appellant is awarded the sum of Kshs. 150,000 for future medical expenses, and Kshs. 734,040 for lost capacity for future earnings
  3. 3.Costs of this Appeal are to the Appellant

Authorities

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Legislation

  • Evidence Act (Chapter 80, Laws of Kenya)Section 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (13)

  • Prudential Assurance Company of Kenya Limited v Sukhinder Sigh Jutley and Another
    [2007] eKLR
  • Selle v Associated Motor Boat Company Limited
    [1968] EA 123
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Kimatu Mbuvi v Beson Ngale
    [2012] eKLR
  • CMC Aviation Limited v Cruise Air Limited
    [1978] E.A. 103
  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    [1985] E.A.
  • Mumias Sugar Company Limited v Francis Wanalo
    [2007] eKLR
  • Moeliker v Reyrolle & Co. Ltd
    [1971] 1 WLR 132
  • HCCC No. 106 of 2007 (unnamed party)
    HCCC No. 106 of 2007
  • Machakos HCCC No. 232 of 2004 (unnamed party)
    HCCC No. 232 of 2004
  • Nakuru HCCC No. 209 of 1991 (unnamed party)
    HCCC No. 209 of 1991
  • Kakamega HCCC No. 485 of 1999 (unnamed party)
    HCCC No. 485 of 1999
  • Nairobi HCCC No. 889 of 2004 (unnamed party)
    HCCC No. 889 of 2004
On appeal from
Chief Magistrates' Court, Thika
Civil Suit No. 560 of 2011
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Chief Magistrates' Court (the judgment does not cite a specific enabling provision)

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, "Gitogo v Shengli Engeneering Construction Company Limited & 2 others (Civil Appeal 9 of 2017) [2023] KEELRC 534 (KLR)", Case Analysis (2023). Appeal against the judgment in Thika Chief Magistrates' Court Civil Suit No. 560 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/534/eng@2023-02-28

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