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ELRCDismissedNot stated in the judgment (appeal from Machakos CMCC No. 539 of 2015)

Devki Steel Mills Limited v Oduori (Employment and Labour Relations Appeal 10 of 2021) [2023] KEELRC 2169 (KLR)

High Court of Kenya
21 September 2023
4,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's High Court upheld a Kshs 5.3 million injury award against Devki Steel Mills, confirming that appeals on damages rarely succeed without proof of wrong legal principles.

What this practically means

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Executive summary

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Devki Steel Mills Limited appealed against the judgment and decree of the Senior Principal Magistrate at Machakos in CMCC No. 539 of 2015 delivered on 30 November 2017, in which liability had been compromised by consent at 70:30 in favour of the Respondent, a former employee crushed by a roll mill cabling at the Appellant's premises on 25 April 2014. The trial court awarded the Respondent Kshs 3,736,847.20 (being Kshs 3,000,000 general damages, Kshs 2,330,496 loss of earnings and Kshs 5,500 special damages, less 30% contributory negligence) plus costs and interest. The Appellant contended the general damages and loss of earnings awards were manifestly excessive, that loss of future earnings was not specifically pleaded and proved as special damages, and that the trial court ignored its submissions. The Respondent maintained both awards were properly assessed, relying on comparable authorities and the 60% permanent incapacity assessed by both doctors. The court, as a first appellate court, framed two issues: whether the general damages award was inordinately high and whether the loss of future earnings award was erroneous. Applying the principles in Catholic Diocese of Kisumu v Sophia Achieng Tete and Southern Engineering Co Ltd v Musingi Mutia, it found the general damages award high but not so excessive as to warrant interference. On the second issue, relying on SBI International Holdings v William Ambuga and Butler v Butler, it held the Respondent proved real assessable loss, his employment having been terminated and his left hand completely incapacitated, and upheld the multiplier approach. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the award of Kshs 3,000,000 as general damages was inordinately high
  2. 2.Whether the Trial Magistrate erred in awarding damages for loss of future earnings of Kshs 2,330,496

Key legal issues

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01

Whether the general damages award of Kshs 3,000,000 was inordinately high

Holding

The court found the award on the higher side but not so excessive as to warrant interference; it declined to disturb it.

Reasoning

The court compared comparable authorities cited by both sides, noting the injuries were similar to those in Alpharama Limited but that case involved older injuries and awards. Applying the settled principles in Catholic Diocese of Kisumu v Sophia Achieng Tete and Southern Engineering Co Ltd v Musingi Mutia, it held that an appellate court will not substitute its own figure merely because it would have awarded a different one, absent wrong principles or misapprehension of evidence. The trial court had considered the authorities and the severe injuries.

p. 7
02

Whether the trial court erred in awarding loss of future earnings of Kshs 2,330,496

Holding

The court upheld the award, finding the Respondent proved loss of future earnings and that the Trial Magistrate correctly assessed it using a multiplier of 17 on a monthly income of Kshs 11,424.

Reasoning

Both medical reports assessed permanent incapacity at 60% and confirmed complete incapacitation of the left hand. The Respondent's employment was terminated three months after resuming duty and he remained jobless, and the Appellant called no evidence to controvert this. Following SBI International Holdings v William Ambuga and Butler v Butler, the court held that whether characterized as loss of earnings or earning capacity, the award was proper since damages were payable on proved real assessable loss.

p. 8

Legal principles established

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  • An appellate court should not disturb an award of damages unless it is inordinately low or high, was arrived at on a misapprehension of the evidence, or on wrong principles of law.
  • Loss of future earnings is compensation for real assessable loss proved by evidence, whereas loss of earning capacity is compensated as part of general damages.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The appellant to pay the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court at Machakos
CMCC No. 539 of 2015
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment ( Memorandum of Appeal against the judgment and decree in CMCC No. 539 of 2015); the judgment does not cite the specific statutory provision

Relief refused

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Setting aside the trial court's judgment on quantum and reassessment of damages downwards

The court found no fault with the trial court's reasons on general damages and found the award of loss of future earnings correctly assessed

p. 9

Costs

The appeal is dismissed with costs to the Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end I find no merit in the appeal and accordingly dismiss the same with costs.
p. 9Disposition - dismissal of the appeal with costs
Although I find the award to have been on the higher side, I do not find any fault with the reasons given by the trial court and neither do I find it so excessive as to warrant my interference with the same.
p. 7Non-interference with general damages award
I find that the Learned Trial Magistrate correctly assessed the Respondent's loss of future earnings at Kshs. 2,330,496. I find no reason to interfere with the judgment.
p. 8Affirmation of loss of future earnings award
The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles
p. 6Test for appellate interference with quantum (as stated in Catholic Diocese of Kisumu v Sophia Achieng Tete)
Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.
p. 3Distinction between loss of future earnings and loss of earning capacity (Fairley v John Thomson Ltd, as cited)

Issues in the judgment

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minor

The appeal number, court of first instance of this appeal and neutral citation are not stated anywhere in the judgment; only the trial court case (Machakos CMCC No. 539 of 2015) and the delivery venue (Eldoret) are given.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Devki Steel Mills Limited v Oduori (Employment and Labour Relations Appeal 10 of 2021) [2023] KEELRC 2169 (KLR)", Case Analysis (2023). Not stated in the judgment (appeal from Machakos CMCC No. 539 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2169/eng@2023-09-21

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