Jabane v Olenja (Civil Appeal 2 of 1986) [1986] KECA 71 (KLR)
The bottom line
#Kenya's Court of Appeal cut a road accident damages award, holding the victim ten percent to blame for not avoiding a lorry that crossed into his lane.
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 findings of fact on how the collision occurred should stand
- 2.Whether the respondent was guilty of contributory negligence and in what degree
- 3.Whether the award of general damages for pain, suffering and loss of amenities was excessive
- 4.Whether the awards for loss of future earnings, special damages and the refusal of loss of expectation of life should stand
- 5.What costs orders should follow, including whether a certificate for two advocates should issue
Key legal issues
#Appellate approach to trial judge's findings of fact
The trial judge's findings that the tanker encroached over the midline with full headlights and that the respondent's speed was not high were upheld; no misapprehension of evidence or wrong principle was demonstrated.
Hancox, JA accepted that an appellate court may re-evaluate evidence, citing Peter v Sunday Post and Ephantus Mwangi v Duncan Mwangi Wambugu, but held the trial judge had carefully evaluated the two conflicting accounts and answered in specie the allegations of negligence particular to the case, so his findings stood.
Contributory negligence despite wrong-side encroachment
The respondent was ten per cent contributory negligent because, even if dazzled, he should have slowed further and moved more to his left.
Although the tanker came over onto the Renault's side, the respondent had about a minute to avoid the accident, swerved left but then came back right, and collided with the tanker and trailer, showing insufficient avoiding action. The appellant was not precluded by the pleadings from raising contributory negligence, though the appellant's own defence had not pleaded the alternative averment in compliance with the Civil Procedure Rules.
Remoteness of subsequent infections in quantum
The kidney infection and thigh bone fracture infection were post hoc and not propter hoc the accident and had to be set aside in assessing pain, suffering and loss of amenities.
Account had not been taken of the remoteness of the kidney and thigh bone infections from the accident injuries; those recurring infections probably had different origins. Setting them aside, the respondent's residual condition was near enough to Burbridge's in Bhogal v Burbridge to warrant a comparable award updated for inflation, producing Kshs 352,000 instead of Kshs 450,000.
Non-interference with loss of future earnings and other unappealed awards
The multiplicand and multiplier for loss of future earnings were correct and the award stood; special damages and the refusal of an award for loss of expectation of life were unchallenged and confirmed.
Although the trial judge did not deduct the reduced pension and investment opportunity the respondent conceded should have been considered, the appellant did not complain of this at trial or on appeal and there was no evidence on either matter, so the court would not tinker with that part of the award.
Legal principles established
#- An appellate court will not interfere with a trial judge's award of damages unless the award is based on a wrong principle, a misapprehension of the evidence, or is so inordinately high or low as to be an entirely erroneous estimate.
- The Court of Appeal 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, a misapprehension of the evidence, or demonstrably wrong principles.
- Comparable injuries should attract comparable awards, with inflation taken into account, and awards should not be excessive for the sake of those who pay insurance premiums, medical fees or taxes.
- A claimant who, faced with an oncoming hazard, fails to take sufficient avoiding action may be guilty of contributory negligence even where the other driver encroached onto his side of the road.
Court orders
#- 1.The appeal is allowed in part
- 2.The trial judge's finding of one hundred per cent liability on the part of Jabane is set aside and one of ninety per cent substituted
- 3.The finding of no contributory negligence by Olenja is set aside and one of ten per cent contributory negligence substituted
- 4.The award of Kshs 786,600.00 general damages is reduced to Kshs 688,000.00 and, allowing for ten per cent contributory negligence, to Kshs 619,200.00
- 5.The award of special damages, interest and costs in the High Court is confirmed
- 6.Jabane to pay sixty per cent of Olenja's costs of this appeal to Olenja
- 7.The application for a certificate for two advocates is rejected
- 8.The advocates of the parties may by consent adjust the figures in the judgments if they are correct
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the principal judgment on quantum. Held the trial judge erred in taking into account kidney infection and thigh bone fracture as consequences of the accident; reduced general damages for pain, suffering and loss of amenities from Kshs 450,000 to Kshs 352,000; left the loss of future earnings award intact; endorsed 90/10 apportionment of liability and the costs proposals of Hancox, JA.
The appropriate sum should have been Kshs 352,000.00 and the learned judge’s one of the Kshs 450,000.00 must be reduced to that sum.p. 6
Wrote the judgment
Wrote separately on liability. Upheld the trial judge's findings of fact on how the collision occurred but held the respondent was ten per cent contributory negligent for failing to take sufficient avoiding action. Agreed with Kneller, JA on quantum and proposed the appellant receive sixty per cent of the costs of the appeal, with no certificate for two counsel, and no interference with the High Court costs order.
I would, on the evidence, hold that the respondent was contributory negligent to the degree of ten per cent. To that extent only would I allow the appeal as regards liability.p. 9
Wrote the judgment
Added a short concurring paragraph agreeing entirely with Kneller and Hancox, JJA, restating the principle that an appellate court will not interfere with quantum unless damages were assessed on wrong grounds or are unreasonable, and noting it was an error for the trial judge to take into account the subsequent kidney and thigh bone infections.
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. 10
- On appeal from
- High Court of Kenya at Kisumu
- Civil Case No 60 of 1980
- Jurisdiction invoked
- First appeal to the Court of Appeal from a decree of the High Court (appeal as of right against the trial judgment and decree)
Relief refused
#Certificate for two advocates
Both Kneller, JA and Hancox, JA declined to certify for two counsel notwithstanding each side had a measure of success
Interference with the award for loss of future earnings
No complaint was raised at trial or on appeal on the omitted matters and there was no evidence on either of them
Costs
Sixty per cent of the respondent's costs of this appeal to be paid by the appellant to the respondent; the award of special damages, interest and costs in the High Court confirmed; no certificate for two advocates.
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.
Therefore the orders of this court are that the appeal is allowed in part, the finding of the trial judge of one hundred per cent liability on the part of Jabane is set aside and one of ninety per cent substituted
the award of Kshs 786,600.00 general damages reduced to Kshs 688,000.00 and, allowing for ten per cent contributory negligence, to Kshs 619,200.00, the award of special damages, interest and costs in the High Court is confirmed
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.
it will not lightly differ from the findings of fact of a trial judge who has had the benefit of seeing and hearing all the witnesses
I would, on the evidence, hold that the respondent was contributory negligent to the degree of ten per cent. To that extent only would I allow the appeal as regards liability.
Issues in the judgment
#Internal contradiction in the figure for loss of future earnings: the court refers to the award as Kshs 336,600.00 when assessing it but later states it 'will remain unscathed at Kshs 366,000.00'.
The judgment compares Olenja's condition with Burbridge's injuries in October 1985, but the accident in Bhogal v Burbridge is elsewhere described as occurring in early October 1975; the year appears mistyped in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jimcab Services Limited v Osodo & another (Suing as the Administrators of the Estate of Richard Omondi Odhiambo - Deceased) (Civil Appeal 566 of 2019) [2025] KECA 975 (KLR)[2025] KECA 975 (KLR)23 May 2025applied
- Kiiru t/a Kinamba General Supplier's & Transport v Kenya Ferry Services & another (Civil Appeal E209 of 2023) [2025] KECA 664 (KLR)[2025] KECA 664 (KLR)11 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Jabane v Olenja (Civil Appeal 2 of 1986) [1986] KECA 71 (KLR)", Case Analysis (1986). Civil Appeal No 2 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/71/eng@1986-09-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.