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Court of AppealPartially AllowedCivil Appeal (Kisumu)

Jabane v Olenja (Civil Appeal 2 of 1986) [1986] KECA 21 (KLR)

Court of Appeal of Kenya
2 September 1986
AKA.A. KnellerAHA.R.W. HancoxJNJ.O. Nyarangi
5,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a road accident payout by holding the injured driver 10% to blame for not avoiding a tanker that crossed the centre line.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against the judgment of Mr Justice Schofield (22 March 1985), which had awarded the respondent, a postal officer injured in a 1978 head-on collision between his Renault and the appellant's tanker lorry on the Maseno-Luanda road, Kshs 29,320 special damages plus interest and Kshs 786,600 general damages, holding the tanker driver 100% liable with no contributory negligence. The Court of Appeal, in three concurring opinions (Hancox, Kneller and Nyarangi JJA), allowed the appeal in part. It upheld the trial judge's finding that the tanker encroached two feet over the midline with undimmed lights, reiterating that an appellate court will not lightly disturb a trial judge's findings of fact unless they rest on no evidence or on demonstrably wrong principles. However, it found the respondent 10% contributory negligent for insufficient avoiding action, substituting liability of 90/10. On quantum, it reduced the award for pain, suffering and loss of amenities from Kshs 450,000 to Kshs 352,000 because the trial judge wrongly took into account kidney infection and thigh bone infection remote from the accident (post hoc and not propter hoc), but declined to disturb the award for loss of future earnings, holding the multiplicand and multiplier correct. General damages were reduced to Kshs 619,200. Special damages, interest and High Court costs were confirmed; the appellant received 60% of the costs of the appeal, and no certificate for two advocates was granted.

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's findings of fact on the cause of the accident could be disturbed on appeal
  2. 2.Whether the trial judge was obliged to make findings on each pleaded particular of negligence
  3. 3.Whether the respondent was guilty of contributory negligence and in what degree
  4. 4.Whether the awards for pain, suffering and loss of amenities and for loss of future earnings were excessive
  5. 5.What costs order should follow given each side's measure of success

Key legal issues

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01

Appellate interference with trial judge's findings of fact

Holding

The trial judge's finding that the tanker encroached two feet over the midline with full undimmed lights was upheld; he did not demonstrably act on wrong principles or misapprehend the evidence.

Reasoning

The court accepted the classic grounds for disturbing factual findings but held that the judge carefully evaluated both conflicting accounts, took nothing he should not have, and omitted nothing he should have. Notably, he answered in specie the two particulars of negligence special to the case rather than the stereotyped boilerplate allegations, satisfying the requirement in Mute v Elikana without minute findings on every standard particular.

p. 3
02

Contributory negligence

Holding

Although the tanker driver was primarily to blame, the respondent was 10% contributory negligent for failing to slow further and move sufficiently left, being potentially dazzled by the tanker's lights.

Reasoning

The respondent had about a minute to avoid the collision; he swerved left but came back to his right, consistent with being dazzled. It was incumbent on him to slow down from 40 kph and take more avoiding action. The court rejected the appellant's 75% and 50% apportionment submissions as unsupported by evidence, substituting 90/10 liability.

p. 3
03

Excessive award for pain, suffering and loss of amenities

Holding

The award of Kshs 450,000 was excessive because the trial judge took into account kidney infection and thigh bone infection remote from the accident; reduced to Kshs 352,000 to match the comparable Burbridge award adjusted for inflation.

Reasoning

The infections were post hoc and not propter hoc the accident and probably had different origins. Setting them aside, the respondent's injuries, treatment and residual condition in March 1985 were near enough to Burbridge's to warrant a similar award, uplifted for the fall in the value of money over the intervening eleven years.

p. 8
04

Loss of future earnings and earning power

Holding

The award for loss of future earnings based on early retirement (multiplicand Kshs 2,805 per month, multiplier of ten years) was correct and left undisturbed; loss of earning power/promotion prospects properly forms part of general damages.

Reasoning

The employer's letter established that the respondent had missed all promotion interviews because of his injuries. No separate figure was awarded for earning power but the court was not asked to remedy that deficiency. The judge chose the correct multiplicand and multiplier, and no complaint was raised about the omitted pension deduction.

p. 9

Legal principles established

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  • An appellate court will not lightly differ from the findings of fact of a trial judge who saw and heard the witnesses, and will interfere only where the findings are based on no evidence or the judge demonstrably acted on wrong principles.
  • An appellate court will not interfere with a trial judge's award of damages unless it is based on a wrong principle, a misunderstanding of the evidence, or is so inordinately high or low as to be an entirely erroneous estimate.
  • Comparable injuries should attract comparable awards, with inflation taken into account; each case depends on its own facts.
  • A party must take all due and prudent avoiding action in the circumstances; failure to take sufficient avoiding action may found a finding of contributory negligence even where the other driver encroached.

Court orders

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  1. 1.Appeal allowed in part
  2. 2.The trial judge's finding of 100% liability on the part of Jabane set aside and one of 90% substituted
  3. 3.The trial judge's finding of no contributory negligence by Olenja set aside and one of 10% contributory negligence substituted
  4. 4.Award of Kshs 786,600 general damages reduced to Kshs 619,200
  5. 5.Award of special damages, interest and costs in the High Court confirmed
  6. 6.Jabane to pay 60% of Olenja's costs of the appeal to Olenja
  7. 7.Application for a certificate for two advocates rejected
  8. 8.Advocates of the parties may by consent adjust the figures in the judgments if they are incorrect

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AH
concurring

Wrote the judgment

Upheld the trial judge's findings on how the collision occurred (tanker encroaching two feet over the midline with undimmed lights) but held the respondent 10% contributory negligent for insufficient avoiding action; agreed with Kneller JA on quantum and proposed 60% of appeal costs to the appellant.

I would, on the evidence, hold that the respondent was contributory negligent to the degree of 10%.p. 3
AK
concurring

Wrote the judgment

Reviewed the evidence on injuries and damages, reduced the award for pain, suffering and loss of amenities from Kshs 450,000 to Kshs 352,000 because the trial judge took into account kidney infection and thigh bone infection not causally linked to the accident, left loss of future earnings undisturbed, agreed liability should be apportioned 90/10 and endorsed Hancox JA's costs proposals.

The appropriate sum should have been Kshs 352,000 and the learned judge’s one of Kshs 450,000 must be reduced to that sum.p. 8
JN
concurring

Wrote the judgment

Agreed entirely with Kneller and Hancox JJA, adding that on an appeal against quantum an appellate court will not interfere unless damages were assessed on wrong grounds or are unreasonable, and that it was an error for the trial judge to take the subsequent kidney and thigh bone infections into account.

It was an error for the trial judge to take into account the subsequent infection of the kidneys and the fracture in right thigh bone.p. 9
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate structure of the Kenyan courts (judgment does not cite a specific provision)

Relief refused

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Certificate for two counsel/two advocates

Having considered the matter, the court declined to certify for two counsel despite the appellant's substantial success on the appeal

p. 4

Interference with the award for loss of future earnings

The judge chose the correct multiplicand and multiplier; no complaint was raised at trial or on appeal about the omitted pension deduction and there was no evidence on it

p. 9

Interference with the High Court costs order

The respondent had absolutely succeeded on liability and loss of earnings in the High Court and substantially on appeal

p. 4

Costs

Jabane to pay 60% of the costs of the appeal to Olenja; the High Court order that the appellant pay the costs of the High Court proceedings left undisturbed; certificate for two counsel refused.

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.

Therefore the orders of this court are that the appeal is allowed in part, the finding of the trial judge of 100% liability on the part of Jabane is set aside and one of 90% substituted, the finding of the judge of no contributory negligence by Olenja is set aside and one of 10% substituted, the award of Kshs 786,600 general damages reduced to Kshs 619,200
p. 9Final orders - partial allowance of appeal and substitution of liability apportionment and quantum
it will not lightly difier from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles
p. 2Standard for appellate interference with trial judge's findings of fact
unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone
p. 8Standard for appellate interference with quantum
They were post hoc and not propter hoc the events of that accident.
p. 8Causation - exclusion of remote sequelae from damages
I would, on the evidence, hold that the respondent was contributory negligent to the degree of 10%.
p. 3Contributory negligence apportionment
The appropriate sum should have been Kshs 352,000 and the learned judge’s one of Kshs 450,000 must be reduced to that sum.
p. 8Substitution of award for pain, suffering and loss of amenities

Issues in the judgment

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minor

The judgment as reproduced contains contradictory renderings of the name 'Butt v Khan' (also appearing as 'Butto v Khan') and of the litigant names in the Shabani case ('Idi Ayub Omari Shabani' versus 'Idi Ayub Pomari'), and scattered typographical corruption of party names (e.g. 'Olenja'/'Olenjo'/'Olena').

minor

The list of principles in Kneller JA's judgment is introduced after paragraph 43 but the numbered principles sit inside paragraph numbering in a way that suggests a typographical misplacement in the reproduction.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jabane v Olenja (Civil Appeal 2 of 1986) [1986] KECA 21 (KLR)", Case Analysis (1986). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/21/eng@1986-09-02

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