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Court of AppealDismissedCourt of Appeal, Nairobi, Civil Appeal (number not stated in judgment)· [1981] KECA 26 (KLR)

Gakere v Ngigi [1981] KECA 26 (KLR)

Court of Appeal of Kenya
29 January 1981
ASA.H. SimpsonCMC.B. MadanKPK.D. Potter
2,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a driver hit on his own side of the road bears little blame and that courts rarely reduce personal injury damages awards.

What this practically means

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Executive summary

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This was a defendant's appeal against a High Court at Nakuru judgment awarding the respondent, a Mercedes driver seriously injured in a head-on collision with a fast, zigzagging Peugeot, general damages of Kshs 198,000 (90% of Kshs 220,000) after a 10% finding of contributory negligence. Simpson Ag JA, writing the leading judgment, dismissed both grounds. On liability, the appellants had accepted every primary finding of fact, and on those findings the Peugeot was almost wholly on the wrong side when the respondent, struck on his correct side, was hit; the trial judge's unfavourable passage rested on a misreading of the police constable's measurement placing the point of impact 4 feet 7 inches from the respondent's edge of the road. A trial judge might have found no blame at all, and certainly did not err in fixing a slight 10% contribution in his discretion; there was in any event no cross-appeal. On quantum, the trial judge properly used Bhogal v Burbridge as a comparator, and the English cases cited by the appellants were older or involved less serious injuries. Madan JA wrote separately, holding that an innocent driver on his correct side cannot be required to react with 'computer precision' to a wrong-side zigzagging vehicle, and warning that inflation has rendered old awards unrealistic comparators. Potter JA agreed. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Degree of contributory negligence attributable to a driver faced with an oncoming zigzagging vehicle

Holding

The trial judge's discretionary assessment of 10% contributory negligence was not erroneous; indeed no blame need have attached, and each such case turns on its own facts.

Reasoning

The respondent slowed down, pulled over and was struck on his correct side while the Peugeot was well over the mid-line. The judge's contrary passage rested on a misreading of the police constable's measurements against the sketch plan. Where a driver faces such a dilemma, failure to take the ideal avoiding action does not import substantial negligence, and an appellate court will not disturb a discretionary apportionment absent demonstrated error.

p. 3
02

Quantum of general damages for serious personal injuries

Holding

The award of Kshs 198,000 (90% of Kshs 220,000) was not manifestly excessive; the Burbridge comparator was properly used and its value would today be far higher.

Reasoning

The trial judge cited Bhogal v Burbridge, whose injuries were comparable or more serious, and misdirection could not be inferred since no other comparable authority was cited. English comparators relied on by the appellants were older, involved less serious injuries, or were agreed settlements. Absent a wrong principle or an entirely erroneous figure, interference was unjustified, particularly in light of inflation.

p. 4

Legal principles established

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  • A driver who is on his correct side, neither reckless nor negligent, confronted by a vehicle zigzagging at high speed on the wrong side of the road, is not to be burdened with a higher degree of care merely because he failed to take perfect avoiding action.
  • Assessors of general damages, and those challenging quantum, must discount comparators from earlier years because of inflation and the falling value of money.
  • An appellate court will not interfere with an award of general damages absent a wrong principle, misapprehension of relevant facts, or an award so high as to be entirely erroneous.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent
On appeal from
High Court of Kenya at Nakuru
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (provision not stated in the judgment)

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, "Gakere v Ngigi [1981] KECA 26 (KLR)", Case Analysis (1981). Court of Appeal, Nairobi, Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/26/eng@1981-01-29

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