Ali v Nyambu t/a Sisera Store (Civil Appeal 5 of 1990) [1990] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that injury victims must back every shilling of claimed special damages with real evidence, not just paperwork listing their losses.
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 special damages awarded were less than what was claimed
- 2.Whether the trial judge failed to award the amount claimed for a house maid
- 3.Whether the trial judge failed to consider future pain and suffering from a future operation
- 4.Whether the award of Shs 220,000 for pain, suffering and loss of amenities was too low, and the question of costs
- 5.On cross-appeal, whether the medical expenses and doctors' fees awarded were exorbitant and whether the award for loss of future earnings was manifestly high
Key legal issues
#Strict proof of special damages
Special damages must be strictly proved; unsupported hospital and doctors' charges are disallowed even where weekly statements were produced as exhibits
Applying Benham-Carter v Hyde Park Hotel Ltd and Ouma v Nairobi City Council, the court held that pleading particulars is not proof. Hospital statements had no supporting evidence, the doctors' bills were partly exaggerated and unpaid, and items such as transport and out-patient treatment had no evidential support, so they were disallowed or reduced.
Appellate interference with assessment of damages
The Court may interfere only where the trial judge applied a wrong principle or the award is so inordinately high or low as to be a wholly erroneous estimate; here the judge took irrelevant factors into account
Adopting the Nance v British Columbia Electric Railways principles as applied in Ilanga v Manyoka and Lukenya Ranching v Kavoloto, the Court found the trial judge took irrelevant factors into account, rendering the award on medical expenses wholly erroneous, and proceeded to reassess the special damages itself.
General damages for pain, suffering and loss of amenities
The award of Shs 220,000 was enhanced to Shs 250,000, incorporating future pain and suffering and loss of marriage prospects
The Court accepted the trial judge, who saw the plaintiff, had considered all aspects of loss, but considered Shs 250,000 more comparable with current awards; future operation pain could be accommodated within the general award, and no maid was needed as the appellant would adjust in time.
Legal principles established
#- Special damages, in addition to being pleaded, must be strictly proved
- An appellate court will not substitute its own figure for an award of damages unless the trial court applied a wrong principle or the award is so inordinately low or high as to be a wholly erroneous estimate
- The burden of proving damages lies on the plaintiff; it is not enough to particularise them in the pleadings
Court orders
#- 1.Special damages reduced to Shs 142,100 (accident abstract Shs 100; Pandya Memorial Clinic Shs 67,500; cost of future operation Shs 25,000; medical report Shs 1,000; Dr Abdul Shah Shs 6,000; Dr S A Khandwalla Shs 42,500)
- 2.General damages for pain, suffering and loss of amenities, including loss of marriage prospects and future pain and suffering, assessed at Shs 250,000
- 3.Loss of future earnings left as awarded by the trial judge at Shs 270,000
- 4.Total damages payable by the respondent to the appellant of Shs 662,100
- 5.Each party to bear his/her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in the judgment as supplied
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (not expressly cited in the judgment as supplied)
Relief refused
#Claim for special damages of Shs 318,860 as pleaded
Items including transport of Shs 5,000, most of the Pandya Memorial Clinic charges, Dr Shah's and Dr Khandwalla's full fees were not strictly proved
Claim for 17 surgical operations by Dr Khandwalla
Disallowed as unproved
Claim for out-patient treatment
No dates were given for the treatment
Provision for a house maid
The appellant would be able to adjust herself in time and support herself, making a maid unnecessary
Enhancement of special damages on appeal
The appeal failed on the issue of special damages
Costs
Each party shall bear his/her own costs.
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.
Special damages in addition to being pleaded, must be strictly proved
Plaintiffs must understand that if they bring action for damages it is for them to prove damages, it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying, this is what I have lost, I ask you to give me these damages! They have to prove it.
before the Appellate Court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one);or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages
We consider that the judge has taken into account irrelevant factors and as a result the award is so inordinately high as to be a wholly erroneous estimate of the damages.
In the result the appellant’s appeal succeeds as regards the award for general damages whose figure we have enhanced. The appeal however fails on the issue of special damages. The respondent’s cross-appeal is successful on the issue of medical expenses. As a consequence each party shall bear his/her own costs.
Issues in the judgment
#Pandya Memorial Clinic figure appears as Shs 117,260 in the cross-appeal itemisation but the statement breakdown totals Shs 117,250, and the plaint lists Shs 177,260
The delivery date contains a typographical duplication: 'this 24th Day of July 24 1990'
Dr Khandwalla's initials appear as 'Dr Z A Khandwalla' in the plaint breakdown but 'Dr. S A Khandwalla' in the final awards
The judgment states the cost of the future operation was not included in the special damages figure, yet the final breakdown expressly includes 'Cost of future operation Shs. 25,000/=' within the Shs 142,100 total
The name of the respondent/defendant and the case number are not stated in the judgment text supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Nyambu t/a Sisera Store (Civil Appeal 5 of 1990) [1990] KECA 54 (KLR)", Case Analysis (1990). not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/54/eng@1990-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.