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High CourtPartially AllowedAppeal from Milimani CMCC No. 5037 of 2013

Stanley Mutua Kioko v Kenya Breweries Limited (appeal against Milimani CMCC No. 5037 of 2013)

High Court of Kenya
30 June 2020
3,486 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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High Court reduced a large injury award because the trial judge lacked justification and the plaintiff failed to prove lost income.

What this practically means

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Executive summary

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This was a first appeal to the High Court from the judgment of Hon. M. Chesang (RM) in Milimani CMCC No. 5037 of 2013, in which the respondent, a machine operator, recovered KShs.900,000 general damages, KShs.960,000 for loss of earning capacity and KShs.3,000 special damages for a machine-related injury to his left hand sustained on 15th January 2013. The appellant raised three issues: the trial court's jurisdiction, quantum, and the dismissal of its review application. On jurisdiction, the court held that Gazette Notice No. 9243 of 2011, confining work injury claims to Senior Resident Magistrates and above, was nullified by the Magistrates Court Act, 2015, whose Sections 2 and 9(b) confer jurisdiction over employment and labour relations claims on magistrates' courts generally; the alleged conservatory orders in the Malindi Law Society petition were not proved. The court also held that a jurisdictional challenge raised after conclusion of a suit is a matter for appeal, not review under Order 45 Rule 1, and upheld the dismissal of the review motion. On quantum, the court found the KShs.900,000 general damages award unreasoned and inordinately high by comparison with Sino Hydro and Kenya Steel Fabricators, reducing it to KShs.450,000. The loss of earning capacity award of KShs.960,000 was set aside because the respondent proved no loss of earning capacity, having continued working for over a year after the accident. Special damages of KShs.3,000 were confirmed. The appeal partially succeeded: judgment was substituted at a total of KShs.453,000 with interest, the respondent got lower-court costs, and each party bore its own costs of the appeal.

Key legal issues

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01

Jurisdiction of a Resident Magistrate's court over work injury claims

Holding

The trial court, presided over by a Resident Magistrate, had jurisdiction. Gazette Notice No. 9243 of 2011 confining work injury claims to Senior Resident Magistrates and above was nullified by the Magistrates Court Act, 2015, which defines 'magistrate' to include a Resident Magistrate and confers jurisdiction over employment and labour relations claims.

Reasoning

The court held that Gazette Notice No. 9243 of 2011 was superseded by the Magistrates Court Act, 2015, in force from 2nd January 2016. Section 9(b) grants magistrates' courts jurisdiction over employment and labour relations claims, and Section 2 defines 'magistrate' to include a Resident Magistrate. The trial proceedings occurred after the Act commenced, so no retrospective application arose. The alleged stay orders in the Malindi petition were not proved.

p. 2
02

Whether the review application was properly dismissed

Holding

Yes. The motion sought to set aside the judgment on jurisdictional grounds, which is not a ground for review under Order 45 Rule 1; such a challenge is a matter for appeal.

Reasoning

Order 45 Rule 1 permits review only on discovery of new evidence, an error apparent on the face of the record, sufficient reason, and timeliness. The appellant claimed none of these; it only challenged jurisdiction after the suit was concluded, which is a matter of law for appeal. The trial court's dismissal of the motion was therefore proper.

p. 3
03

Whether the award of general damages of KShs.900,000 was excessive

Holding

Yes; reduced to KShs.450,000. The trial magistrate gave no reasons for the award, and comparable authorities (Sino Hydro; Kenya Steel Fabricators) showed the award was inordinately high.

Reasoning

The trial magistrate awarded KShs.900,000 without assigning any reasons, rendering the decision arbitrary. Comparing with Sino Hydro (KShs.600,000 on appeal for amputation of two fingers) and Kenya Steel Fabricators (KShs.260,000 for a finger fracture), and adjusting for inflation, the court found the award a wholly erroneous estimate and substituted KShs.450,000.

p. 4
04

Whether the respondent was entitled to damages for loss of earning capacity

Holding

No. The award of KShs.960,000 was set aside because the respondent adduced no evidence of loss of earning capacity; he continued working for over a year after the accident.

Reasoning

Applying Butler v Butler, loss of earning capacity must be proved. The respondent's written statement only described the accident; under cross-examination he confirmed he continued working for the appellant for over a year. The trial magistrate's finding of unemployability was unsupported by evidence, so the award had no basis in law.

p. 4

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • An appellate court may interfere with a quantum award only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
  • A party who did not contest a finding in its memorandum of appeal is estopped from canvassing that issue on appeal under Order 42 Rule 4.
  • A challenge to a trial court's jurisdiction made after conclusion of the suit is a matter of law ventilated on appeal, not a ground for review under Order 45 Rule 1.
  • Under Sections 2 and 9(b) of the Magistrates Court Act, 2015, a Resident Magistrate's court has jurisdiction over employment and labour relations claims including work injury claims.
  • Loss of earning capacity must be proved by evidence; it is distinct from loss of future earnings and is awarded as part of general damages.

Court orders

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  1. 1.The trial court's award of general damages of KShs.900,000 set aside and substituted with an award of KShs.450,000.
  2. 2.The award of KShs.960,000 for loss of earning capacity set aside.
  3. 3.The award of special damages of KShs.3,000 confirmed.
  4. 4.Judgment of the trial court set aside and substituted with judgment of the High Court in favour of the respondent against the appellant in the total sum of KShs.453,000.
  5. 5.Special damages to earn interest from the date of filing suit; general damages to attract interest at court rates from the date of the trial court's judgment.
  6. 6.Respondent awarded costs of the suit in the lower court; each party to bear its own costs of the appeal.
On appeal from
Chief Magistrate's Court, Milimani
CMCC No. 5037 of 2013
Jurisdiction invoked
First appeal to the High Court under the Civil Procedure Rules (Order 42); appeal on both facts and law

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, "Stanley Mutua Kioko v Kenya Breweries Limited (appeal against Milimani CMCC No. 5037 of 2013)", Case Analysis (2020). Appeal from Milimani CMCC No. 5037 of 2013. Source: 

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