Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedGatundu CMCC No. 153 of 2017 (Appeal)· [2025] KEELRC 2632 (KLR)

Devki Limited v Barongo (Appeal E162 of 2024) [2025] KEELRC 2632 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2025
AJABUODHA NELSON JORUM
1,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Employment and Labour Relations Court dismissed the appeal, upholding a Kshs. 3.9 million injury award because the defendant never showed up at trial to contest it.

What this practically means

#

Executive summary

#
This was a first appeal to the Appeals Division at Nairobi against the judgment of Hon. W. Ngumi (SPM), Gatundu, delivered on 18th March 2024 in Gatundu CMCC No. 153 of 2017, in which the trial magistrate found the appellant fully liable for an accident and awarded the respondent Kshs. 1,500,000 as general damages for pain and suffering and loss of amenities and Kshs. 2,400,000 for loss of future earning capacity. The appellant raised four grounds: full liability was wrongly found; loss of amenities was awarded although neither pleaded nor proved; loss of future earning capacity was awarded without proof of lost earning ability; and the multiplier of 20 years ignored the vicissitudes of life, with the awards being manifestly excessive. The appeal was disposed of by written submissions. The appellant's counsel argued that courts cannot grant unpleaded reliefs and that future earnings are special damages requiring specific pleading and proof, while contending that an appellate court will not interfere with quantum absent an erroneous estimate. Respondent's counsel submitted that the appellant did not appear at the trial despite service, leaving the claimant's evidence uncontested, and that the injuries (electric burns to both hands, loss of consciousness and paresis of the left hand, with 50% permanent incapacity) were severe and supported by treatment notes and a medical report. The court applied Gitobu Imanyara v Attorney General on retrial appeals and Charles Musau Munguti v Doshi & Co. Ltd on medical expenses proved by medical report, held that the trial court's decision need only accord with the law and the evidence, and found that the appellant neither contested the claim at trial nor demonstrated an erroneous assessment. The court dismissed the appeal with costs.

Key legal issues

#
01

The principles upon which an appellate court interferes with a trial court's award of damages

Holding

The court will not interfere with the trial court's award on quantum unless it took into account irrelevant factors, left out relevant facts, or the amount was inordinately low or high as to be an erroneous estimate; the trial court's decision need only be in line with the operative law and a reasonable deduction of the evidence

Reasoning

The court adopted the settled principles in Kemfro Africa Ltd v Lubia and Gitobu Imanyara v Attorney General: an appeal from a magistrate's court is by way of retrial, requiring reconsideration and evaluation of the evidence, but with due allowance for the appellate court not having seen or heard the witnesses. The appellate court must guard against simply substituting its own view for that of the trial court.

p. 4
02

Whether damages for loss of future earning capacity could be awarded when not directly pleaded

Holding

The award could stand; although not directly pleaded, the respondent pleaded severe injuries whose particulars were supported by the medical report of Dr. Okere, and the appellant never attended the hearing to contest the allegations

Reasoning

Following Charles Musau Munguti v Doshi & Co. Ltd, once medical expenses are pleaded and proved through a medical report, the court must make a pronouncement on them. The respondent's pleading of severe injuries, supported by the medical report showing 50% permanent incapacity, sufficed, and the appellant's non-attendance at the trial left the claimant's testimony uncontested.

p. 4
03

Liability where the defendant fails to call evidence at trial

Holding

A party who fails to call witnesses or produce evidence cannot fault the court for finding them liable, as the claimant's testimony remains uncontested

Reasoning

The court noted that on the date of the hearing the appellant did not appear despite being served, and the matter proceeded ex parte to conclusion. Relying on Linus Ng'ang'a Kiongo v Town Council of Kikuyu, an unanswered defence leaves the plaintiff's case unchallenged and the defendant's allegations unsubstantiated.

p. 2

Legal principles established

#
  • An appeal to the court from a trial by the magistrate's court is by way of retrial, but the appellate court will not interfere with the trial court's decision provided it is in line with the operative law and a reasonable deduction of the evidence
  • Once future medical expenses are pleaded and proved through a medical report, the court must make a pronouncement on the same

Court orders

#
  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered
On appeal from
Chief Magistrate's Court, Gatundu
Gatundu CMCC No. 153 of 2017
Jurisdiction invoked
Appellate jurisdiction over appeals from subordinate courts (the judgment does not expressly cite the enabling provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Devki Limited v Barongo (Appeal E162 of 2024) [2025] KEELRC 2632 (KLR)", Case Analysis (2025). Gatundu CMCC No. 153 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2632/eng@2025-09-26

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