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ELRCPartially AllowedBungoma High Court Civil Appeal (from Kakamega CMC Civil Case No. 386 of 2015)· [2024] KEELRC 1684 (KLR)

Board of Management & Trustees Catholic Diocese of Kakamega v Shirietso (Employment and Labour Relations Appeal 6 of 2024) [2024] KEELRC 1684 (KLR)

High Court of Kenya
27 June 2024
JKJ.W. Keli
2,153 words in judgment
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The bottom line

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Kenya's High Court cut a Kshs 900,000 award for two amputated fingers to Kshs 700,000, ruling trial courts must compare damages with past awards for similar injuries.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Bungoma against the quantum award of Kshs 900,000 made by Honourable Hazel Wandere SPM on 23 August 2022 in Kakamega Chief Magistrate's Court Civil Case No. 386 of 2015. Liability had been settled at trial by consent at 70:30 in the respondent claimant's favour for traumatic amputation of the 2nd and 3rd left-hand fingers suffered at the workplace. The appellant contended the award was manifestly excessive, proposing Kshs 500,000 general damages (net Kshs 351,750), while the respondent maintained the award was proper, indeed low given 30% permanent disability. Guided by Selle v Associated Motor Boat Co., the court re-evaluated the evidence and found the trial court erred in law by failing to refer to comparable past awards, contrary to the principle in Simon Taveta v Mercy Mutitu Njeru. It found the psychological trauma claim unproved, noted the Kamolo award of Kshs 800,000 for more severe injuries (four amputated fingers), and the Mwabakura award of Kshs 440,000. Holding the Kshs 900,000 award to be on the higher side, the court allowed the appeal, set aside the trial judgment and substituted general damages of Kshs 700,000 with special damages of Kshs 2,500, less 30% contribution, total stated as Kshs 492,500 (a figure arithmetically inconsistent with the deductions stated). The claimant received costs of the suit with interest from 23 August 2022; no order of costs was made in the appeal.

Key legal issues

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01

Whether the award of Kshs 900,000 for traumatic amputation of two fingers was manifestly excessive

Holding

The award was on the higher side and unsubstantiated because the trial court did not compare it with comparable past awards; it was reduced to Kshs 700,000 subject to 30% contribution

Reasoning

The court, guided by Selle, re-evaluated the evidence and the past awards submitted before the trial court. It found the injuries were permanent with painful stumps but that psychological trauma was unproved. The Kamolo award for more severe injuries (four amputated fingers) was Kshs 800,000, so the trial award for two fingers could not be sustained. It substituted Kshs 700,000.

p. 5
02

Standard for interference with an award of general damages on appeal

Holding

An appellate court disturbs an award only where it is inordinately high or low as to be an entirely erroneous estimate or where the trial court proceeded on a wrong principle

Reasoning

Both parties framed the appeal around this principle. The appellant relied on Mwangi v Wambugu and Kiruga v Kiruga; the respondent relied on Butt v Khan and Simon Taveta. The court applied the comparable-awards principle from Simon Taveta to find the trial court's failure to refer to past awards an error of law.

p. 4

Legal principles established

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  • A trial court's award of general damages must be measured against comparable past awards for similar injuries
  • An appellate court interferes with damages only where the award is an entirely erroneous estimate or founded on a wrong principle

Court orders

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  1. 1.Appeal allowed; the Judgment and Decree of Honourable Hazel Wandere SPM delivered on 23/08/2022 in Kakamega Chief Magistrate's Court Civil Case No. 386 of 2016 set aside and substituted
  2. 2.Special damages of Kshs 2,500 awarded to the Claimant
  3. 3.General damages of Kshs 700,000 awarded, less 30% contribution (Kshs 490,000 deducted per the arithmetic as printed), total award Kshs 492,500/-
  4. 4.Claimant to have costs of the suit and interest from the date of judgment of 23rd August 2022
  5. 5.No order of costs in the appeal

Authorities

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Cases cited (8)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • Mwangi v Wambugu
    (1984) KLR
  • Kiruga v Kiruga and another
    (1988) KLR 348
  • Butt v Khan
    (1981) KLR 349
  • Simon Taveta v Mercy Mutitu Njeru
    (2014) eKLR
  • Saleh Suleiman Mwabakura v Nashidas Company Ltd
    Mombasa HCC No. 911 of 1990
  • Blowplast Ltd v Julius Ondari Moses
    (2018) eKLR
  • Victor Mutua Kamolo v Joseph M. Mbugua
    (2018) eKLR
On appeal from
Kakamega Chief Magistrate's Court
Civil Case No. 386 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (subordinate court appeal on quantum)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Board of Management & Trustees Catholic Diocese of Kakamega v Shirietso (Employment and Labour Relations Appeal 6 of 2024) [2024] KEELRC 1684 (KLR)", Case Analysis (2024). Bungoma High Court Civil Appeal (from Kakamega CMC Civil Case No. 386 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1684/eng@2024-06-27

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