Tayab v Kinanu [1983] KECA 23 (KLR)
The bottom line
#Kenya's Court of Appeal cut a child's road accident award from Kshs 750,000 to Kshs 270,000, ruling that even a nine-year-old child can share blame for a road accident.
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 judge's finding that the defendant drove at an unreasonably high speed was supported by the evidence
- 2.Whether the defendant was negligent in failing to keep a proper look-out
- 3.Whether the infant plaintiff was guilty of contributory negligence notwithstanding her tender age
- 4.Whether the award of Kshs 750,000 general damages was manifestly excessive
- 5.Whether leave to adduce fresh evidence of the plaintiff's worsened condition should be granted and whether it was necessary
Key legal issues
#Contributory negligence of a child of tender years
A child of nine or ten with developed road sense who fails to see an approaching car on a straight road in broad daylight is blameworthy and contributorily negligent to the extent of 10%, following the precedent in Vinod's case.
The court distinguished between Madan JA's dictum that a person under ten cannot NORMALLY be guilty of contributory negligence and an absolute rule; noted Clerk & Lindsell that there is no age below which contributory negligence is legally impossible; applied the Gough v Thorne test of capacity and blameworthiness; and, given the trial judge's express finding that the child had the requisite road sense, held her failure to see the car blameworthy, fixing liability at 10% per the Vinod precedent.
Negligence of the driver despite absence of excessive speed
The finding of excessive speed was set aside, but the driver was nonetheless negligent in failing to keep a proper look-out, as she should have seen the child at the roadside and avoided or mitigated the impact.
The brake-mark evidence, road conditions and accepted stopping-distance tables showed a speed of no more than 20 mph, which was not unreasonable even near schools. However, on the finding that the child paused before crossing, the driver, with a clear field of vision and knowledge of schools in the vicinity, ought to have seen her in time to slow down or take avoiding action; failure to do so constituted negligence.
Quantum of general damages for post-traumatic epilepsy
The award of Kshs 750,000 was manifestly excessive; the correct award on total liability, for a second-category controllable epilepsy case, was Kshs 300,000, reduced to Kshs 270,000 for contributory negligence.
Applying Lawton LJ's three categories of epilepsy cases in Burke v Woolley and Maughan, the plaintiff fell within the second (drug-controllable) category. Comparable awards (Burke, Jones v Griffith) adjusted for Kenyan conditions and inflation pointed to a range of £13,000–£16,000; the trial award was more than twice the English ceiling for even the third category and could not stand. Foreign awards must be applied with caution having regard to Kenyan conditions, though the cost of drugs and medical care in Kenya may justify some weighting.
Directions for disposition of an infant's damages
The trial judge should have given directions for the disposition of the infant's damages; the balance was ordered into a controlled interest-bearing account.
As the plaintiff was an infant, the trial judge ought to have given directions on disposal of the award. Since a substantial sum had already been paid to the next friend who had incurred maintenance and litigation expenses, the court declined to interfere with that payment but ordered the balance into an account operated jointly by the Registrar of the High Court and the next friend, with payments out limited to accrued interest and the capital vesting in the plaintiff absolutely at eighteen.
Legal principles established
#- An appellate court will be slow to interfere with a trial judge's findings of fact based on credibility and demeanour.
- A child is guilty of contributory negligence only if of an age to be expected to take precautions for his or her own safety and if blameworthy.
- There is no age below which, as a matter of law, a child cannot be guilty of contributory negligence.
- Awards by foreign courts do not necessarily represent the standards which should prevail in Kenya.
- Comparable injuries should so far as possible be compensated by comparable awards, assessed with moderation.
Court orders
#- 1.The appeal be allowed with costs
- 2.The judgment and decree appealed from be amended by substituting Kshs 270,000 as general damages for the Kshs 750,000 awarded by Nyarangi J
- 3.The plaintiff to have the costs of the suit in the High Court, with leave to the defendant to have the bill retaxed in light of the substituted award
- 4.The balance of the general damages be paid into an interest-bearing bank or trust account in the name of the plaintiff, operated jointly by the Registrar of the High Court and the next friend, payments out limited to accruing interest, and the sum to become the plaintiff's absolute property on attaining eighteen years
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. He held that the finding of excessive speed was unsupported by the brake-mark evidence, but affirmed negligence for failure to keep a proper look-out. He held the child contributorily negligent to 10% notwithstanding her tender years, and reduced general damages to Kshs 300,000 (Kshs 270,000 after the 10% reduction). He also gave directions for the payment of the infant's damages into a controlled account.
If my view of the appropriate general damages and of the plaintiff’s contributory negligence is right, the award of Kshs 300,000 must be reduced by 10%, making Kshs 270,000.p. 4
Wrote the judgment
Agreed that the driver was negligent for failure to keep a proper look-out, that there was no evidence of excessive speed, and that the child was 10% contributorily negligent. On quantum he stressed the need for consistency in awards so as to promote out-of-court settlements, endorsed the English authorities on moderation in damages, and independently arrived at the same figure of Kshs 300,000 before reduction.
My own estimate of fair compensation leads to the same award for general damages (before reduction for contributory negligence) of Kshs 300,000 and for the same reasons.p. 6
Wrote the judgment
Regretfully disagreed with the finding that the child paused and looked both ways before crossing, concluding she crossed without looking, but held that this did not affect the conclusion that the driver was negligent in failing to see her. He agreed the child was 10% contributorily negligent and concurred on liability. On quantum he would have awarded Kshs 400,000 (Kshs 360,000 after reduction), though he concurred in the orders proposed by Law JA.
After due consideration I consider that Anna should be awarded a global sum for pain, suffering and loss of amenities, and I think this sum should be Kshs 400,000 on the terms of total liability.p. 14
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly recited in the judgment)
Relief refused
#Respondent's resistance to the appeal on liability and quantum
The full trial award of Kshs 750,000 with 100% liability could not stand; contributory negligence of 10% was found and damages reduced
Costs
Appeal allowed with costs; the plaintiff to have the costs of the suit in the High Court (already taxed and paid on the basis of Kshs 750,000), with leave to the defendant to have the bill retaxed in light of the substituted award of Kshs 270,000, if so advised.
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.
That this appeal be allowed with costs
That the judgment and decree appealed from be amended by substituting the sum of Kshs 270,000 as general damages for the sum of Kshs 750,000 general damages awarded by Nyarangi J
On attaining the age of eighteen years, the sum standing to the credit of the account will become the property of the plaintiff absolutely.
Indeed, I am of the opinion the practice of the civil courts ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission.
A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances.
An appellate court will be slow to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanour of a witness who has given evidence before him
awards by foreign courts do not necessarily represent the standards which should prevail in Kenya, where the conditions relevant to the assessment of damages may be very different
Issues in the judgment
#The plaintiff's age is stated inconsistently within the judgment itself, which the court expressly notes
Internal tension between Hancox JA's proposed quantum (Kshs 400,000/360,000) and the operative order substituting Kshs 270,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tayab v Kinanu [1983] KECA 23 (KLR)", Case Analysis (1983). Court of Appeal, Nairobi, Civil Appeal (judgment dated 30 March 1983). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/23/eng@1983-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.