Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 75/25 fault split between a negligent driver and pedestrian, and ruled future earnings must be valued at trial date, not accident date.
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 apportionment of liability at 75% to the driver and 25% to the pedestrian was justified
- 2.Whether the award of Kshs 160,000 for pain, suffering and loss of amenities was too high or too low
- 3.Whether loss of past earnings attributable to the accident should include the period of unemployment after the respondent's dismissal in March 1977
- 4.Whether general damages for loss of future earning capacity should be calculated on the plaintiff's earnings at the date of the accident or at the date of trial
Key legal issues
#Apportionment of liability between a negligent driver and a negligent pedestrian
The 75/25 apportionment was upheld; both parties' predominant failure was the total failure to keep a proper lookout, and the driver's control of a lethal machine justified the greater share.
The sketch plan and the scattering of meat showed the point of impact was near the centre line, discrediting the driver's account. The judge who saw the witnesses was entitled to prefer the pedestrian's evidence. Apportionment is an exercise of discretion, interferable with only where clearly wrong, based on no evidence, or on a wrong principle. The obsolete 'last opportunity' doctrine does not apply; both failures to see the other were concurrent causes.
Date at which general damages for loss of future earning capacity fall to be assessed
They must be assessed at the date of trial using trial-date earnings; the trial judge erred in using the accident-date salary of Kshs 845 instead of the unchallenged evidence of Kshs 1,500-1,600 per month at trial.
Following Cookson v Knowles, the award divides into past pecuniary loss (arithmetical) and future loss (multiplier applied to earnings the plaintiff would have been receiving at trial). The employer's director gave unchallenged evidence of prospective earnings of Kshs 1,500-1,600. Deducting Kshs 20 hospital fund dues and adding 5% NSSF contribution yields Kshs 1,555; multiplied by the agreed 12-year multiplier and 50% loss of capacity gives K£5,598 before the contributory negligence deduction.
Adequacy of the award for pain, suffering and loss of amenities
The award of Kshs 160,000 (K£8,000) was too low when assessed against comparable awards and the fall in the value of money; it was increased to K£10,000 (Kshs 200,000).
Assessments made after 1979, even after a downward allowance for inflation, suggested the figure was too low: Wright v Bennet (£20,000 for a paralysed arm) and Smith v Miles Redfern (£12,000 for a useless hand). Kenyan comparators also showed rising awards. The trial judge could not have known of later rises, but the appellate court assessing correctness at trial date in light of subsequent comparators could increase the award.
Recoverability of past earnings loss after an intervening dismissal
No damages are recoverable for lost earnings after the plaintiff's dismissal in March 1977, since the dismissal for suspected pilfering was not attributable to the accident.
Special damages for actual loss of earnings run only to the dismissal, the agreed figure being Kshs 11,526 (75% = Kshs 8,644.50). The plaintiff did not contest his dismissal, so it cannot be attributed to the accident, and the reduced wage in his new employment is irrelevant. Loss must be proved to be attributable to the accident to be recoverable.
Legal principles established
#- General damages for loss of future earning capacity are to be assessed at the date of trial, on the earnings the plaintiff would have been receiving at trial, not on earnings at the date of the accident.
- An appellate court will not interfere with a trial judge's apportionment of blame unless it is clearly wrong, based on no evidence, or founded on a wrong principle.
- An appellate court that did not see or hear the witnesses is not entitled to substitute its findings of fact for those of the trial judge.
- Assessment of liability in negligence involves two elements, causation and blameworthiness; the doctrine of the 'last opportunity' is obsolete and does not govern apportionment between two negligent parties.
- In an inflationary period, an award should be divided into past pecuniary loss up to trial (calculated arithmetically) and future pecuniary loss from trial onwards (multiplier applied to trial-date earnings); no interest is awardable on the lump sum for pain and suffering.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Cross-appeal allowed only to the extent of the revised award
- 3.Damages for pain, suffering and loss of amenities increased from Kshs 160,000 to Kshs 200,000, giving Kshs 150,000 after the 25% deduction for contributory negligence
- 4.Loss of future earning capacity recalculated on trial-date earnings, giving Kshs 83,970 after the 25% deduction
- 5.Total award of Kshs 242,819.25 substituted for the High Court award
- 6.Interest from March 26, 1979 until payment in full to run on Kshs 242,819.25 in place of the lesser sum awarded by the learned judge
- 7.Costs of the appeal and cross-appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Upheld the 75/25 apportionment of liability, holding failure to keep a proper lookout was the predominant factor for both parties. Found the award for pain and suffering too low and increased it from K£8,000 to K£10,000, and held that loss of future earning capacity should be assessed on earnings at the date of trial (Kshs 1,500 less deductions plus 5% NSSF), not at the date of the accident. Proposed a total award of Kshs 242,819.25 with interest on that sum from 26 March 1979 until payment.
General damages are to be assessed at the trial and on the evidence available at the trial.p. 4
Wrote the judgment
Concurred in Potter JA's conclusions and proposed orders. Added that traffic accidents are questions of fact not to be governed by extracted principles, that the obsolete 'last opportunity' doctrine does not apply, and that an appellate court is in no position to substitute its findings of fact for those of the trial judge who saw and heard the witnesses.
The trial judge saw and heard the witnesses. We have not; and, in my opinion, we are in no position to substitute our findings of fact for those for those reached by him.p. 5
Wrote the judgment
Agreed with Potter JA's judgment. Independently analysed the evidence, holding the point of impact was near the centre line but that both parties' 'unforgiven sin' was total failure to keep a proper lookout; apportionment is a discretion interferable with only when clearly wrong. Applied Cookson v Knowles: future loss must be calculated on earnings at the date of trial (Kshs 1,555 x 12 x 50%). Held the Kshs 160,000 award for pain and suffering inadequate and substituted Kshs 200,000, producing a total of Kshs 242,819.25.
In my view it was not a suggestion of excessive speed, and, I do not agree that on evidence it was proved that the area was built up and there were pedestrians milling to and fro.p. 7
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No 1547 of 1974
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal and cross-appeal from the judgment and decree of Sachdeva J)
Relief refused
#Respondent's claim for damages for loss of earnings between his dismissal in March 1977 and the trial in February 1979
The dismissal for suspected pilfering could not be attributed to the accident; no provable loss attributable to the accident in that period
Appellant's attack on the apportionment of liability
The trial judge's exercise of discretion on apportionment was not clearly wrong
Costs
Costs of the appeal and cross-appeal awarded to the respondent (Potter JA: "I would award the costs of the appeal and cross appeal to the respondent"; Chesoni Ag JA: "I would dismiss the appeal with costs and allow the cross-appeal with costs only to the extent suggested in the above award")
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.
Here I think the learned judge is in error. General damages are to be assessed at the trial and on the evidence available at the trial. See Cookson v Knowles [1977] QB 913, [1979] AC 556.
apportionment of blame represents an exercise of a discretion with which this court will interfere only when it is clearly wrong, or based on no evidence at all nor did he apply a wrong principle
The trial judge saw and heard the witnesses. We have not; and, in my opinion, we are in no position to substitute our findings of fact for those for those reached by him.
the correct way in time of inflation was to divide the award into two parts, the first part being the actual pecuniary loss up to the date of the trial and the second part being future pecuniary loss from the date of trial onwards.
As Kneller J A and Chesoni agree, it is so ordered.
I would dismiss the appeal and allow the cross appeal to the extent indicated by the award I have proposed. I would award the costs of the appeal and cross appeal to the respondent.
Issues in the judgment
#The two judgments state slightly different figures for agreed actual loss of earnings before dismissal (Kshs 11,256 in Potter JA's judgment versus Kshs 11,526 in Chesoni Ag JA's judgment), though both compute 75% as Kshs 8,644.50, which corresponds to Kshs 11,526.
Chesoni Ag JA's arithmetic for item (c) of the award is internally inconsistent: the calculation given is '75% of Kshs 111,960 = Kshs 3,970', whereas the correct 75% of Kshs 111,960 is Kshs 83,970, the figure used in Potter JA's judgment and in the total of Kshs 242,819.25.
The judgment contains evident transcription/typographical errors, e.g. 'National/Security Fund' for the National Social Security Fund, and 'from shoulder to gingers' where 'fingers' is plainly meant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR)", Case Analysis (1983). Civil Appeal (from Nairobi High Court Civil Case No 1547 of 1974). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/72/eng@1983-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.