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ELRCPartially AllowedAppeal from Mavoko PMCC No. 1140 of 2016 (originally filed as High Court Civil Appeal No. 154 of 2017 at Machakos)· [2024] KEELRC 2589 (KLR)

ChinaRroad and Bridge Corporation v Nyamu (Appeal 1 of 2021) [2024] KEELRC 2589 (KLR)

Environment and Labour Relations Court (referred to only as 'this court' in the judgment)
24 October 2024
1,817 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 and Labour Relations Court cut a worker's Kshs.600,000 injury award to Kshs.300,000, finding the original damages excessive for soft tissue injuries.

What this practically means

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Executive summary

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This is a first appeal against quantum only. The Respondent (plaintiff in Mavoko PMCC No. 1140 of 2016) sued the Appellant (his employer) for general and special damages after an industrial accident, alleging negligence, breach of statutory duty and carelessness. The Trial Magistrate (Hon. L. Kassan, SPM) found the Appellant 100% liable and awarded Kshs.600,000/- general damages, Kshs.3,000/- special damages, plus costs and interest. The Appellant appealed on quantum, contending the award was excessive for soft tissue injuries with no residual disability, and proposed Kshs.150,000/-, relying on several comparable-injury authorities. The Respondent maintained his injuries were severe soft tissue injuries supported by unchallenged evidence, treatment notes and medical reports. The appeal, originally filed in the High Court at Machakos, was transferred to this court and proceeded by written submissions. Applying Selle v Assorted Motor Boat Company and Bashir Ahmed Butt v Uwais Ahmed Khan, the court found the award of Kshs.600,000/- inordinately high and, guided by Francis Ochieng & Another v Alice Kajimba, reduced general damages. The appeal succeeded partially: general damages were substituted at Kshs.300,000/-, the rest of the lower court judgment was left undisturbed, and each party was ordered to bear their own costs of the appeal while the lower court costs order remained in place.

Key legal issues

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01

Whether the award of Kshs.600,000/- as general damages for multiple soft tissue injuries was inordinately high and liable to be interfered with on appeal

Holding

The award was inordinately high and was reduced to Kshs.300,000/-, based on comparable awards for similar injuries

Reasoning

The court applied the settled principles that an appellate court interferes with quantum only where the trial court misdirected itself or the award is an entirely erroneous estimate. Noting that the Appellant's authorities were fairly old while the Respondent's authorities concerned more severe injuries, the court found guidance in Francis Ochieng & Another v Alice Kajimba (2015) eKLR, where an award for multiple soft tissue injuries was reduced from Kshs.500,000/- to Kshs.350,000/-. Balancing these considerations, the court concluded Kshs.600,000/- was inordinately high and substituted an award of Kshs.300,000/-.

p. 4
02

The duty of a first appellate court in re-evaluating evidence

Holding

Being a first appeal, the court has a duty to re-evaluate the entire case and come up with its own findings, while bearing in mind it neither saw nor heard the witnesses

Reasoning

Relying on the classic statement in Selle v Assorted Motor Boat Company (1968) EA 123, the court restated that a first appellate court must reconsider and evaluate the evidence and draw its own conclusions, making due allowance for the fact that it has neither seen nor heard the witnesses, and is not bound necessarily to follow the trial judge's findings of fact.

p. 4

Legal principles established

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  • An appellate court will only interfere with an award of general damages where the trial court took into account irrelevant factors, failed to take into account relevant factors, or where the quantum is inordinately low or high as to amount to an erroneous estimate
  • On a first appeal, the court has a duty to re-evaluate the entire evidence and come up with its own findings, while making allowance for the fact that it did not see or hear the witnesses
  • Comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases

Court orders

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  1. 1.The appeal is allowed to the extent that the award of general damages is found inordinately high
  2. 2.The award of Kshs.600,000/- for general damages is set aside and substituted with an award of Kshs.300,000/-
  3. 3.The rest of the judgment of the subordinate Court is undisturbed
  4. 4.The costs of the appeal shall be borne by each party while the order for costs in the lower Court shall remain undisturbed

Authorities

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Cases cited (8)

  • Boniface Waiti & Another v Michael Kariuki Kamau
    (2007) eKLR
  • Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd
    (2013) eKLR
  • Purity Wambui Muriithi v Highlands Mineral Water Company Limited
    (2015) eKLR
  • Ndungu Dennis Vs Ann Wangari Ndirangu & Another
    (2018) eKLR
  • Simon Muchemi and Peter Ambani & Another Vs Gordon Osore, Civil Appeal No. 180 of 2005
  • Selle v Assorted Motor Boat Company
    1968 EA 123-126
  • Bashir Ahmed Butt v Uwais Ahmed Khan
    (1977) 1 KAR
  • Francis Ochieng & Another v Alice Kajimba
    (2015) eKLR
On appeal from
Senior Principal Magistrate's Court at Mavoko
Mavoko PMCC No. 1140 of 2016
Jurisdiction invoked
First appeal transferred by direction from the Civil Division of the High Court at Machakos (High Court Civil Appeal No. 154 of 2017) to this court; no specific constitutional or statutory provision is cited in the judgment

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, "ChinaRroad and Bridge Corporation v Nyamu (Appeal 1 of 2021) [2024] KEELRC 2589 (KLR)", Case Analysis (2024). Appeal from Mavoko PMCC No. 1140 of 2016 (originally filed as High Court Civil Appeal No. 154 of 2017 at Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2589/eng@2024-10-24

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