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Court of AppealDismissedCivil Appeal No 85 of 1983

Kigaragari v Aya [1985] KECA 119 (KLR)

Court of Appeal of Kenya
30 May 1985
2,147 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal against the quantum of damages only, liability not being contested. The respondent, Agripina, a 38-year-old widow supporting three children by casual work and night tailoring, lost her right leg above the knee after being knocked down by a vehicle in Kitale in 1977. The High Court (Mbaya J) awarded general damages of Kshs 250,000, loss of earnings of Kshs 51,000 and special damages of Kshs 342. The appellant argued the general damages were manifestly excessive, that the judge failed to distinguish the cases cited to him, that the multiplicand for loss of earnings lacked support, and that special damages were unproved. Nyarangi JA, delivering the leading judgment with which Hancox JA and Platt Ag JA agreed, reaffirmed that an appellate court interferes with damages only where the award is demonstrably wrong, based on a wrong principle, or manifestly excessive such that a wrong principle may be inferred. He also stressed that awards must stay within what Kenya can afford, since large awards pass to the public through higher insurance premiums, and that comparisons must be confined to local decisions adjusted for inflation. The comparable authorities were distinguished on the facts, the general damages award was held adequate, and the loss of earnings figure survived because of the applicable minimum wage. The respondent conceded the special damages and the decretal sum was corrected to Kshs 301,000 with interest. The appeal was dismissed with costs at the normal rate.

Key legal issues

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01

Interference with assessment of general damages on appeal

Holding

The award of Kshs 250,000 for general damages was upheld as adequate; the appellant failed to show it was manifestly excessive, and the older comparable cases relied on were distinguishable on the facts and required inflation adjustment.

Reasoning

The court reviewed the local comparables (Oluoch v Robinson, Dick v Koinange, Ahmed v Nairobi Deluxe Services, Kahindi Nyale v Chazi) and found each distinguishable on the facts or outdated by inflation. It reaffirmed that assessment of damages is a judicial discretion with which appellate courts are reluctant to interfere absent demonstrable error or a wrong principle, and stressed awards must remain within what Kenya can afford given their effect on insurance premiums.

p. 3
02

Loss of future earnings where the claimant was a casual worker

Holding

Despite insufficient concrete evidence of the claimed monthly income of Kshs 250 used as the multiplicand, the loss of earnings award was not disturbed, taking into account the applicable minimum wage of Kshs 500 and the respondent's credibility.

Reasoning

The judge's multiplicand lacked concrete evidential support, but the court took judicial notice of the minimum wage of Kshs 500 per month said from the bar to be applicable, accepted the respondent was not exaggerating, and concluded the resulting figure was not so excessive as to invite interference.

p. 3
03

Loss of prospects of marriage as a head of damages

Holding

The judge's stress on loss of prospects of marriage did not materially affect the assessment; the respondent could not have married under her custom in any event, and loss of sexual intercourse was itself a substantial loss of amenity properly borne in mind.

Reasoning

The appellant argued loss of marriage prospects had not been specifically pleaded and that the respondent would not have married under her custom. The court agreed the emphasis made little difference, noting the respondent's inability to have sexual intercourse was a substantial amenity loss that would likely have left the assessment the same.

p. 3
04

Unproved special damages

Holding

Special damages of Kshs 342 were not proved nor agreed, as conceded by the respondent's counsel; the resulting deletion reduced the total award to Kshs 301,000 with interest.

Reasoning

The respondent's counsel conceded at the hearing that the special damages were not proved or agreed, and pointed out that the decree as drawn did not comply with the High Court judgment because interest ran from the date of assessment. Suitable deletions were suggested reducing the decretal sum.

p. 2

Legal principles established

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  • An appellate court will interfere with an award of damages only if it is demonstrably wrong, based on a wrong principle, or so manifestly excessive or inadequate that a wrong principle may be inferred
  • Awards of damages must be within the limits set by decided cases and within what Kenya can afford, since large awards are passed on to the public through insurance premiums and increased fees
  • Comparison of damages awards should be confined to decisions of local courts; overseas decisions serve merely as a guide
  • Past damages awards must be adjusted for inflation when used as comparables

Court orders

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  1. 1.The appeal is dismissed with costs at the normal rate
  2. 2.By the respondent's concession, the special damages are deleted so that the amount of Kshs 439,324 reads Kshs 301,000 together with interest thereon
On appeal from
High Court at Eldoret
null
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal against quantum of damages)

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, "Kigaragari v Aya [1985] KECA 119 (KLR)", Case Analysis (1985). Civil Appeal No 85 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/119/eng@1985-05-30

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