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Court of AppealPartially AllowedCivil Appeal 28 of 1983

ABED RASHID AS NEXT FRIEND vs OMAR MOHAMED ABDULLAHI ALI [1983] KECA 116 (KLR)

Court of Appeal
28 July 1983
1,238 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a Kshs 8,000 award for a boy's partially amputated finger was too low, showing judges can raise compensation that is manifestly inadequate.

What this practically means

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Executive summary

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The appellant, a 9-year-old schoolboy, had the ring finger of his left hand crushed by a matatu door as he re-entered the vehicle near Mombasa High School on 30 May 1978. A partial amputation of the terminal phalanx was performed at Pandya Memorial Clinic, leaving a permanent shortened finger with cosmetic disfigurement and slight functional impairment. The respondents, the matatu driver and his employer, did not enter appearance, and Bhandari J entered judgment awarding Kshs 8,000 general damages and Kshs 890 special damages plus costs. The special damages were unreduced on appeal, receipts having been produced. The appeal challenged only the quantum of general damages. At the hearing the judges personally inspected the appellant's injured finger. Kneller JA, in the leading judgment, found no error of fact but concluded the award was manifestly inadequate, noting that the English authorities cited by counsel (Kent v Metal Box Co and Whitehouse v Startrite Designs) concerned adult male factory workers and were of no assistance. He proposed an increase to Kshs 14,000. Chesoni Ag JA agreed with Kneller JA and the proposed orders. Potter JA also agreed to allow the appeal but recorded substitution of Kshs 4,000 as general damages, with the respondents paying the costs of the appeal. The judgment contains an unresolved material discrepancy between the Kshs 14,000 figure in the leading and concurring judgments and the Kshs 4,000 figure in Potter JA's judgment, and the bench cannot properly be described as unanimous on the substituted amount.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge erred in law in awarding Kshs 8,000 as general damages for pain, suffering and loss of amenities
  2. 2.What amount of general damages would adequately compensate a 9-year-old schoolboy for partial amputation of the tip of his left ring finger with permanent cosmetic disfigurement and slight functional impairment

Key legal issues

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01

Quantum of general damages for permanent partial amputation of a child's finger

Holding

The award of Kshs 8,000 was manifestly inadequate for a 13-year-old who lost part of his left ring finger with permanent cosmetic disfigurement and slight functional impairment; the appeal against quantum succeeded.

Reasoning

The court compared the award with the injuries: loss of the terminal phalanx, healed wound, good movement in the remainder of the finger, slight effect on grip and precision movements, and permanent cosmetic disfigurement. The judges personally inspected the appellant's injured finger. The foreign authorities cited by counsel concerned adult male factory workers with comparable finger injuries and were of no assistance. The court found no error of fact but concluded the award was manifestly inadequate.

p. 2
02

Value of foreign comparative awards in Kenyan quantum assessments

Holding

Foreign awards (Whitehouse v Startrite Designs; Kent v Metal Box Co) for adult male factory workers were of no help to the trial judge in fixing damages for a right-handed schoolboy.

Reasoning

Kneller JA distinguished the cited cases: Whitehouse was a 35-year-old toolmaker awarded £800 for a crushed right hand; Kent a 55-year-old machine operator with an amputated fingertip. Being foreign, dated, and relating to adult male factory workers, they did not assist in assessing compensation for a child forecast to take a desk job.

p. 2

Legal principles established

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  • An appellate court may interfere with a trial judge's award of general damages where the award is manifestly inadequate, even absent any error of fact.
  • Foreign awards for adult male factory workers, and decade old, are of little assistance in assessing damages for a child plaintiff with a different injury.

Court orders

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  1. 1.Appeal allowed
  2. 2.Award of general damages of Kshs 8,000 set aside
  3. 3.General damages substituted - per Potter JA: Kshs 4,000 for general damages for pain, suffering and substantial loss of amenity (per Kneller and Chesoni JJ A: increased to Kshs 14,000)
  4. 4.Special damages of Kshs 890 unaffected (no appeal against that part)
  5. 5.Respondents to pay the costs of the appeal

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Wrote the leading judgment. Found no error of fact in the trial judge's award but held the award of general damages manifestly inadequate, proposing an increase to Kshs 14,000 and allowing the appeal to that extent with costs.

the learned Judge's award was manifestly inadequate for the appellant's pain, suffering and loss of amenities and it should be increased to Kshs 14,000 and the appeal allowed to this extent with costsp. 2
majority

Wrote the judgment

Agreed with Kneller JA's judgment and the orders proposed, holding the Kshs 8,000 award for pain and suffering inadequate given the permanent loss, cosmetic disfigurement and slight functional impairment.

the sum of Kshs 8,000 - awarded for pain and suffering was inadequate and I agree with Kneller JA that the appeal should be allowed and the sum should be increased to Kshs 14,000p. 3
majority

Wrote the judgment

Also agreed to allow the appeal, but stated the award of general damages of Kshs 8,000 should be set aside and substituted with Kshs 4,000 for pain, suffering and loss of amenity, with respondents paying the costs of the appeal.

We allow this appeal, set aside the award of general damages of Kshs 8,000 and substitute therefore an award of Kshs 4,000 for general damagesp. 4
On appeal from
High Court of Kenya at Mombasa
Civil Case 964 of 1980
Jurisdiction invoked
First appeal to the Court of Appeal against the quantum of damages awarded by the High Court (appeal from a judgment of the High Court of Kenya at Mombasa)

Relief refused

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No appeal against the award of special damages of Kshs 890

Receipts were produced for the special damages

p. 2

Costs

The respondents are to pay the costs of this appeal (per Potter JA); Kneller JA likewise allowed the appeal 'with costs'.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We allow this appeal, set aside the award of general damages of Kshs 8,000 and substitute therefore an award of Kshs 4,000 for general damages, which in this case is for pain and suffering substantial element of loss of amenity.
p. 4Final orders - substitution of general damages award (Potter JA)
the learned Judge's award was manifestly inadequate for the appellant's pain, suffering and loss of amenities and it should be increased to Kshs 14,000 and the appeal allowed to this extent with costs.
p. 2Interference with quantum on appeal (Kneller JA)
The appellant produced receipts for the special damages so there is no appeal from that part of the judge's award.
p. 2Special damages unchallenged

Issues in the judgment

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material

Material contradiction in the quantum awarded: Kneller JA and Chesoni Ag JA fixed general damages at Kshs 14,000, while Potter JA's judgment records the award as substituted at Kshs 4,000. The operative award is irreconcilable on the face of the judgment.

material

Internal inconsistency in the potter judgment figure: Potter JA's judgment is described as agreeing ('I also agree') yet states a substitution figure of Kshs 4,000, which conflicts with the figure both other judges agreed upon.

minor

The coram in the third heading (Potter JA's judgment) omits Chesoni, Ag J A, though Chesoni signed a judgment in the appeal.

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, "ABED RASHID AS NEXT FRIEND vs OMAR MOHAMED ABDULLAHI ALI [1983] KECA 116 (KLR)", Case Analysis (1983). Civil Appeal 28 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/116/eng@1983-07-28

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