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Court of AppealPartially AllowedNot stated in judgment

Moses M. Njoroge & another v Samat Bhima [1994] KECA 98 (KLR)

Court of Appeal of Kenya
15 December 1994
1,534 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal (Cockar, Muli and Tunoi JJA) dismissed an appeal in its major aspects against a High Court at Eldoret judgment (Patel J) awarding the respondent Shs 412,317.00 with interest for injuries and damage suffered when the second appellant, driving the first appellant's lorry KRF 345, lost control after crossing a bridge on the Nairobi–Nakuru Road and hit the respondent's stationary Peugeot 504. The appellants complained that the refusal of a further adjournment to summon the OCS of Naivasha Police Station denied them a fair trial, and that the finding of liability was against the weight of evidence. The court held that adjournments are within the trial judge's discretion, applied Patel v Gottfried, and found no injustice: the appellants had obtained at least four adjournments, the police file was misplaced, its author had left the force, and the OCS had never visited the scene. Liability was upheld on the evidence. The appeal succeeded only on grounds 15 and 16: the trial judge had improperly taken judicial notice of and prompted evidence on sexual incapacity, and had awarded damages on account of losses to the respondent's wife, who was neither pleaded nor called as a witness. Damages for pain, suffering and loss of amenities were reduced by Shs 25,000/- to Shs 200,000/-; the remaining assessments were untouched. The appellants received one quarter of the costs of the appeal. The decision binds subordinate courts on adjournment discretion, unpleaded heads of damage, and non-interference with damages absent wrong principle or wholly erroneous estimate.

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 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. 2.Whether the finding that the second appellant's negligence was the sole cause of the accident was against the weight of evidence
  3. 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. 4.Whether the damages awarded were excessive

Key legal issues

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01

Refusal of adjournment and fair trial

Holding

The refusal was a proper exercise of judicial discretion and did not deny the appellants a fair trial.

Reasoning

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.

p. 2
02

Liability for the accident

Holding

The trial judge was correct that the second appellant's negligence was the sole cause of the accident.

Reasoning

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.

p. 2
03

Damages for sexual incapacity and loss affecting a non-party spouse

Holding

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/-.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Grounds 1 and 2 of the appeal rejected; the trial judge's refusal of the adjournment upheld
  2. 2.The finding on liability (sole negligence of the second appellant) upheld
  3. 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. 4.Other assessments of damages left undisturbed
  5. 5.Appellants awarded one quarter of the costs of the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 2

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

p. 3

Full costs of the appeal

The appellants succeeded only on two grounds but failed on the major grounds

p. 3

Costs

The appellants are awarded one quarter of the costs of the appeal (having succeeded only on two of the grounds).

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.

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.
p. 2Trial judge's ruling on adjournment
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.
p. 2Appellate review of discretionary adjournment rulings
The damages for pain, suffering and loss of amenities of life are accordingly reduced by Shs 25,000/- to Shs 200,000/-.
p. 3Reduction of general damages
We accordingly award them one quarter of the costs. Dated and Delivered at Nairobi this 15th day of December 1994.
p. 3Costs order and disposition

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, "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.