Moses M. Njoroge & another v Samat Bhima [1994] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a road accident negligence ruling but cut damages awarded for losses that were never properly claimed or proved at trial.
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 refusal to grant an adjournment to call the OCS of Naivasha Police Station denied the appellants a fair trial and amounted to an incorrect exercise of discretion
- 2.Whether the finding that the second appellant's negligence was the sole cause of the accident was against the weight of evidence
- 3.Whether the trial judge erred in taking judicial notice of, and prompting evidence on, sexual incapacity and in awarding damages for loss affecting the respondent's wife, who was not a party
- 4.Whether the damages awarded were excessive
Key legal issues
#Refusal of adjournment and fair trial
The refusal was a proper exercise of judicial discretion and did not deny the appellants a fair trial.
The appellants had already obtained at least four adjournments, some frivolous and prejudicial to expeditious disposal. The police file was misplaced, its author had left the force, the OCS had never been to the scene and his testimony would have had no evidential value, and no one was sure the sketch plan was in the file. The judge had the abstract report and two eyewitnesses from both sides. Nothing turned on the adjournment sought.
Liability for the accident
The trial judge was correct that the second appellant's negligence was the sole cause of the accident.
The appellate court reviewed the evidence: the respondent's account of a stationary car struck by a lorry swinging from side to side at high speed over the bridge, versus the turnboy's conflicting account. The court was satisfied the trial judge's finding of sole negligence was supported by the evidence on record and disallowed the submission that the decision was against the weight of evidence.
Damages for sexual incapacity and loss affecting a non-party spouse
The trial judge erred in taking judicial notice of sexual incapacity, prompting evidence of it, and awarding damages on account of the respondent's wife who was not a party; damages for pain, suffering and loss of amenities reduced by Shs 25,000/-.
The head of damage was neither pleaded nor proved: the respondent had not claimed pain or difficulty in performing the act, the doctor's two comprehensive reports were silent on any such disability, the doctor's evidence emerged only after the judge improperly allowed him to confer with the respondent despite objection, and the wife was never called. The judge's reflections on the wife's 'expectations and cravings' were extraneous; such an award would only have been proper had the wife herself sued.
Legal principles established
#- An adjournment is a matter within the discretion of the trial judge, whose exercise will not be interfered with on appeal if all necessary matters were considered; an appellate court may review only where the discretion defeats the parties' rights or causes injustice.
- Damages cannot be awarded for unpleaded and unproven heads of loss, including loss of consortium or sexual relationship affecting a non-party spouse.
- An appellate court will not interfere with an award of damages unless the trial judge acted on a wrong principle or the amount is so inordinately high or low as to be an entirely erroneous estimate.
Court orders
#- 1.Grounds 1 and 2 of the appeal rejected; the trial judge's refusal of the adjournment upheld
- 2.The finding on liability (sole negligence of the second appellant) upheld
- 3.Grounds 15 and 16 allowed; damages for pain, suffering and loss of amenities of life reduced by Shs 25,000/- from Shs 225,000/- to Shs 200,000/-
- 4.Other assessments of damages left undisturbed
- 5.Appellants awarded one quarter of the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (not expressly stated in the judgment)
Relief refused
#Setting aside the finding on liability
The evidence on record supported the trial judge's finding that the second appellant's negligence was the sole cause of the accident
Interference with the remaining assessments of damages
No wrong principle of law and the amounts were not so inordinately high as to be an entirely erroneous estimate
Full costs of the appeal
The appellants succeeded only on two grounds but failed on the major grounds
Costs
The appellants are awarded one quarter of the costs of the appeal (having succeeded only on two of the grounds).
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.
I have considered the application with care. This is an old case. It has been adjourned time and again as can be seen from the record. The police has misplaced the file in question. There is no good reason to believe that it would be traced in two weeks’ time. The case must come to an end. I decline to grant the adjournment. The application refused.
The exercise of the discretion should not defeat the rights of the parties altogether and should not do injustice to one or other of the parties. If it does so then the appellate court has power to review such an order.
The damages for pain, suffering and loss of amenities of life are accordingly reduced by Shs 25,000/- to Shs 200,000/-.
We accordingly award them one quarter of the costs. Dated and Delivered at Nairobi this 15th day of December 1994.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses M. Njoroge & another v Samat Bhima [1994] KECA 98 (KLR)", Case Analysis (1994). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/98/eng@1994-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.