Devki Limited v Barongo (Appeal E162 of 2024) [2025] KEELRC 2632 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding the appellant fully liable for the accident
- 2.Whether the trial court erred in awarding general damages for loss of amenities when the same was not pleaded or proved
- 3.Whether the trial court erred in awarding general damages for loss of future earning capacity when the same was not pleaded and in adopting a multiplier of 20 years without factoring in the vicissitudes of life
- 4.Whether the awards of Kshs. 1,500,000 for pain and suffering and loss of amenities and Kshs. 2,400,000 for loss of future earning capacity were manifestly excessive
Key legal issues
#The principles upon which an appellate court interferes with a trial court's award of damages
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
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.
Whether damages for loss of future earning capacity could be awarded when not directly pleaded
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
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.
Liability where the defendant fails to call evidence at trial
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
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.
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.The appeal is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#Setting aside the judgment of the trial court
The court found the appeal without merit; the quantum awarded was not shown to be erroneous and the appellant did not attend the hearing below or submit sufficient caselaw
Costs
The appeal was dismissed with costs to the respondent
Quotable passages
#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 conclusion the court finds the appeal without merit and hereby dismisses the same with costs.
It is so ordered.
The decision of the trial court need not be perfect but provided it is in line with the operative law and a reasonable deduction of the evidence presented before it, this court will not interfere
An appeal was disposed of by written submissions.
once future medical expenses are pleaded and proved through a medical report, the court must make a pronouncement on the same.
Issues in the judgment
#The judgment is a personal-injuries tort appeal from a magistrate's court (Gatundu CMCC), yet is delivered by a judge styling himself 'PRESIDING JUDGE-APPEALS DIVISION' at Nairobi, and the court and enabling statutory basis for the appeal are not stated on the face of the judgment.
The names of the parties are not given in the judgment excerpt; the parties are referred to only as 'the Appellant' and 'the Respondent' throughout.
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.