[2023] KEHC 26721 (KLR)

Khimji Trading as Madhusudan Construction v Chahilu (Civil Appeal 305 of 2017) [2023] KEHC 26721 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26721 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 305 of 2017

JN Njagi, J

December 8, 2023

Between

Hirani Khimji Trading as Madhusudan Construction

Appellant

and

Vincent Alenga Chahilu

Respondent

(Being an Appeal from the Judgment and decree of the Hon. M/S E.K. Usui, Senior Principal Magistrate, in Nairobi CMCC No. 706 of 2012 delivered on 18th May 2017)

Judgment

1. The respondent sued the appellant at the lower court where he was seeking general and special damages arising from personal injuries sustained during an industrial accident that occurred on 24th September 2011 at the appellant’s premises where the respondent was an employee. 2. At the hearing, the parties recorded a consent on liability in the ratio of 30% for the respondent and 70% for the appellant. The trial court thereupon proceeded to assess the quantum of damages and awarded the respondent Kshs. 380,000/= for pain, suffering and loss of amenities.

3. The appellant contested the quantum of damages awarded, hence this appeal.

4. The memorandum of appeal has 5 grounds of appeal as follows:(1)That the learned trial magistrate erred in law and in fact in assessing general damages at Ksh.380,000/= for pain and suffering and loss of amenities on account of soft tissue injuries, which amount, was manifestly excessive in the circumstances.(2)That the learned trial magistrate erred in law and in fact in basing her findings on irrelevant issues/factors not supported by evidence adduced and/or the applicable law.(3)That the learned trial magistrate erred in law and in fact in failing to take into account the appellant’s submissions on quantum or at all.(4)That the learned trial magistrate erred in law and in fact, in failing to take into cognizance the fact that the Kenya economy cannot sustain such huge awards.

5. The appeal proceeded by way of written submissions. The appellant filed their written submissions dated 14th July 2023 but the respondent did not file any.

Appellant’s Submissions 6. The appellant contends that the injuries particularized by the respondent in his plaint were severe cut wounds on the left finger and severe cut wounds on the left small finger. Additionally, they argue that according to the medical report authored by Dr. J.L. Amugada on January 13th, 2012, the appellant suffered soft tissue injuries due to an industrial accident. Consequently, the appellant experienced enduring pain at the tip of the left ring finger and suffered from significant scarring that impeded the use of the left finger due to the pain at the tip.

7. The appellant argues that the medical report was prepared a mere three months after the accident occurred, during a period when the injuries had not fully healed. This led the doctor to conclude, at that particular time, that the Respondent was unable to adequately use their left hand due to the pain experienced at the tip. It is the appellant’s case that the trial magistrate erred in making a finding that the respondent suffered a loss of the left ring and little finger.

8. The appellant submitted that the trial magistrate erroneously took into consideration the fact that the Respondent sustained injuries to 3 fingers instead of two and also took into consideration that there was a loss of a finger when there was none and therefore arrived at a wrong figure.

9. The appellant submitted the amount of Ksh.50,000/= that was submitted as being sufficient compensation in 2011 was adequate as at that time and the same should be awarded. The appellant sought to rely on their authorities that were cited in its written submissions dated 9th March 2017.

10. The appellant submitted that a court sitting on appeal would interfere with the findings of the trial court on quantum where the subordinate court failed to take into consideration material facts or took into account a material fact, which they ought not to have taken into account. The appellant cited the case of Salim S. Zein t/a Eastern Bus Services &Another vs Rose Mulee Mutua.

Analysis and Determination 11. A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others.

12. In appeal against assessment of damages, an appellate court should be careful not to interfere with the trial court’s exercise of discretion unless certain conditions are satisfied. In the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, the Court of Appeal held that:“.…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘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. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

13. The appellant has appealed to this court on the award of quantum of damages by the lower court in a matter that relates to injury at his place of work. Though the appellant did not raise the issue in his submissions, the court is bound to consider whether it has jurisdiction to determine an appeal relating to work injury claims. Jurisdiction is everything and the court has to ensure that it has jurisdiction before it embarks to hear a matter – see -Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 andSamuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others[2012] eKLR.

14. The jurisdiction of the High Court in matters of work injury claims was comprehensively dealt with by Odunga J. (as he then was) in Slok Construction Ltd v Erick Odhiambo Odongo (2022) eKLR where he held that it is the Employment and Labour Relations Court that has jurisdiction to handle appeals in relation to work injuries. The learned judge adopted the view of Majanja, J in United States International University (USIU) vs. Attorney General Nairobi Petition 170 of 2012 [2012] eKLR, in which he expressed himself inter alia as follows:

“(41)Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Such a situation would lead precisely to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current court …….(43)The intention to provide for a specialist court is further underpinned by the provisions of Article 165(6) which specifically prohibit the High Court from exercising supervisory jurisdiction over superior courts. To accept a position where the Industrial Court lacks jurisdiction to deal with constitutional matters arising within matters of their competence would undermine the status of the court. Reference of a constitutional matter to the High Court for determination or permitting the filing of constitutional matters incidental to labour relations matters would lead to the High Court supervising a superior court. Ordinarily where the High Court exercises jurisdiction to interpret the Constitution or enforce fundamental rights, its decisions even where declaratory in nature will require the court to follow or observe the direction. This would mean that the High Court would be supervising the Industrial Court which is prohibited by Article 165(6).(44)…… The Industrial Court is a specialist court to deal with employment and labour relations matters. By virtue of Article 162(3), section 12 of theIndustrial Court Act, 2011 has set out matters within the exclusive domain of that court. Since the court is of the status of the High Court, it must have the jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret theconstitution and fundamental rights and freedoms is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling within the provisions of section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it.” 15. The Court of Appeal in Elizabeth Njeri Nderi & Another vs. Highway Carriers Limited [2019] eKLR held that it is the Employment and Labour Relations Court which has jurisdiction in appeals arising from the provisions of the Work Injury Benefits Act and thereby remitted the case to that court.

16. I am in entire agreement with the views expressed above. I therefore hold that I do not have the requisite jurisdiction to determine appeals related to work injury claims. I find that it is the Employment and Labour relations court which has that jurisdiction.

17. That being my view on the matter, I order that the file herein be remitted to the Employment and Labour Relations Court, Milimani for determination. As it is the appellant who brought the appeal to the wrong court, I order that he meets the costs of the respondent in the proceedings at this court.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. J. N. NJAGIJUDGEIn the presence of:1. Mrs Wachira for Appellant2. Mr. Njoroge for Respondent3. Court Assistant – Amina30 Days Right of appeal.