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Court of AppealAllowedCivil Appeal No. 166 of 2013· [2017] KECA 65 (KLR)

Samuel Kimemia Gathoga v Njoro Canning Factory (k) Ltd

Court of Appeal of Kenya
22 November 2017
2,440 words in judgment
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The bottom line

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The Court of Appeal restored a worker's original Kshs. 150,000 injury award, ruling a first appeal judge wrongly reduced it by overlooking stronger medical evidence.

What this practically means

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Executive summary

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This second appeal arose from a workplace injury claim by Samuel Kimemia Gathoga against Njoro Canning Factory (K) Ltd for injuries sustained on 3rd August 2005, founded on breach of contract and negligence. The trial magistrate found the respondent 100% liable and awarded general damages of Kshs. 150,000, preferring the medical report of Dr. Omuyoma, which was based on an X-ray and original treatment notes, over the contradictory report of Dr. Mugenya. On first appeal, H.A. Omondi, J. affirmed liability but reduced the award to Kshs. 70,000, finding Dr. Mugenya's report more credible and logical. The appellant appealed to the Court of Appeal, contending that the learned Judge erred in preferring Dr. Mugenya's report and in failing to weigh the appellant's testimony and the treatment card. The Court, comprising Waki, Nambuye and Kiage, JJ.A, held that its mandate on a second appeal is restricted to matters of law. It found that the learned Judge misapprehended and failed to consider material evidence: Dr. Omuyoma's findings rested on physical examination, an X-ray and treatment records and were tested in cross-examination, whereas Dr. Mugenya's report lacked those materials and its author never testified. The appellant could not be penalised for the absence of documents held by the respondent. The Court allowed the appeal, set aside the High Court's downward revision, restored the trial magistrate's award of Kshs. 150,000, and awarded the appellant costs of the appeal and the court below.

Key legal issues

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01

Scope of the Court of Appeal's mandate on a second appeal

Holding

Restricted to matters of law; no interference with concurrent findings of fact absent misapprehension of evidence.

Reasoning

The court invoked Onyango & Another v Luwayi, holding that on a second appeal the Court of Appeal considers only matters of law and will not disturb findings of fact of the two lower courts unless it is clear the magistrate and judge so misapprehended the evidence that their conclusions were based on incorrect bases.

p. 2
02

Whether the first appellate judge exercised her discretion judiciously in revising the award of general damages downwards

Holding

She did not; she misapprehended and failed to consider material evidence, preferring an untested medical report over one grounded in an X-ray, treatment card and cross-examined testimony.

Reasoning

The Judge failed to recall that her reviewing jurisdiction was exercisable with caution. Dr. Omuyoma's findings rested on physical examination, an X-ray and treatment records, and were tested in cross-examination; Dr. Mugenya's report lacked the X-ray and original treatment card and he never testified. The appellant could not be penalised because the respondent held the medical documents. Interference on that footing was erroneous.

p. 3
03

Restoration of the trial magistrate's award

Holding

The award of Kshs. 150,000 was commensurate with the injuries and neither inordinately high nor low.

Reasoning

Applying the Kemfro Africa and Butt v Khan principles, the court found the trial magistrate's award of Kshs. 150,000 was a reasonable estimate of the soft-tissue and back injuries suffered; nothing suggested it was inordinately high or low, so the High Court's reduction to Kshs. 70,000 was set aside.

p. 3

Legal principles established

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  • On a second appeal the Court of Appeal is confined to matters of law and will not interfere with findings of fact of the two lower courts unless they misapprehended the evidence so that their conclusions were based on incorrect bases.
  • An appellate court may disturb a quantum of damages only where the trial judge took into account an irrelevant factor, left out a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate of the damage.
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect.
  • A first appellate court's jurisdiction to review the evidence of the trial court must be exercised with caution; it may interfere only if there is no evidence to support the trial court's conclusion, or the trial court failed to appreciate the weight of the evidence or plainly went wrong.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge revising the trial court's award downwards set aside
  3. 3.Award of Kshs. 150,000 made by the trial magistrate restored
  4. 4.Appellant to have costs of the appeal both here and in the court below
On appeal from
High Court of Kenya at Nakuru
Nakuru Civil Appeal No. 52 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the Constitution/statute, restricted to matters of 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, "Samuel Kimemia Gathoga v Njoro Canning Factory (k) Ltd", Case Analysis (2017). Civil Appeal No. 166 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/65/eng@2017-11-22

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