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Court of AppealPartially AllowedCivil Case 106 of 1994

KENYA BUS SERVICES (MSA) LTD & another v AFRICANUS AUMA WANJALA [1995] KECA 90 (KLR)

Court of Appeal of Kenya
21 July 1995
745 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut an accident victim's payout from KShs 900,000 to 650,000 because one damages claim was never properly pleaded in court.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa by the defendants, Kenya Bus Services (Msa) Ltd and its driver Maurice Karema Charo, against a judgment of the High Court (Wambilyangah, J) dated 6 December 1993 in H.C.C.C. No. 177 of 1989. The respondent was injured on 16 February 1988 when, as he attempted to board the appellant's bus, the driver suddenly drove off, causing him to fall and sustain injuries that ultimately led to amputation of a leg. The court, as a first appellate court, re-evaluated the whole of the evidence. On liability it upheld the trial judge's finding of negligence and rejection of contributory negligence, holding that interference was possible only on proof of absence of negligence, probability that the accident happened without negligence, or that it was due to circumstances beyond the driver's control - none of which was shown. On quantum, the court declined to disturb the award of KShs. 550,000/= general damages or KShs. 100,000/= for a prosthesis, finding no wrong principle or error. However, because loss of earning capacity had not been pleaded, the award of KShs. 250,000/= under that head was set aside. The appeal therefore succeeded only to that limited extent: the decretal amount was reduced from KShs. 900,000/= to KShs. 650,000/=, with the appellants awarded one-third of the costs of the appeal. The judgment was delivered by the court as a whole (Gachuhi, Kwach and Lakha, JJA) on 21 July 1995.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in finding the second appellant negligent for the accident
  2. 2.Whether the respondent was guilty of contributory negligence
  3. 3.Whether the awards of general damages, damages for prosthesis, and loss of earning capacity were excessive or unsustainable

Key legal issues

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01

Liability for injuries to a passenger attempting to board the appellant's vehicle

Holding

The trial judge's finding of negligence against the driver and rejection of contributory negligence were upheld on appeal.

Reasoning

The court re-evaluated the whole evidence, including the driver's concession that he relied on the mirror and did not know the vehicle's capacity or passenger numbers. It held that interference was possible only on the three enumerated grounds, none of which the appellants established, the findings of fact having established the contrary in the respondent's favour.

p. 1
02

Quantum of damages

Holding

General damages of KShs. 550,000/= and KShs. 100,000/= for prosthesis were upheld, but the unpleaded award of KShs. 250,000/= for loss of earning capacity was set aside.

Reasoning

On general damages and prosthesis, the court found no wrong principle or error warranting interference, the injuries having led to malignant ulcers and amputation of a leg. However, loss of earning capacity had not been pleaded at all, so that head of damages could not stand notwithstanding the appellants' advocate not raising it.

p. 2

Legal principles established

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  • An appellate court interferes with a first-instance finding on liability only if the appellant shows absence of negligence, probability that the accident happened without negligence, or that the accident was due to circumstances beyond the driver's control.
  • Damages that were not pleaded cannot be sustained on appeal even if the point was not taken by the opposing party's advocate.

Court orders

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  1. 1.The award of KShs. 250,000/= for loss of earning capacity is set aside
  2. 2.The decree of the superior court is varied by reducing the decretal amount of KShs. 900,000/= by KShs. 250,000/= to KShs. 650,000/=
  3. 3.The appellants shall have one-third costs of this appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 177 of 1989
Jurisdiction invoked
First appellate jurisdiction over the High Court ( appeal from judgment and decree of the superior court )

Relief refused

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Appeal against the finding on liability

The appellants failed to show absence of negligence, probability that the accident happened without negligence, or that it was due to circumstances beyond the driver's control

p. 2

Interference with the award of general damages of KShs. 550,000/= and KShs. 100,000/= for prosthesis

The awards were neither based on a wrong principle nor erroneous

p. 2

Costs

The appellants shall have one-third costs of this appeal.

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.

We would have been able to interfere only if the appellants could show either:(a) absence of negligence, (b) probability that the accident happened without negligence, or (c) that the accident was due to circumstances not within the second appellant’s control.
p. 2Grounds for appellate interference with findings on liability
There was not even a general pleading with regard to this claim.
p. 2Pleading as a prerequisite to an award of damages for loss of earning capacity
Accordingly, the award of KShs. 250,000/= for loss of earning capacity is set aside. The appeal on quantum, therefore, succeeds to this limited extent.
p. 2Final orders on quantum
For the reasons above stated, the decree of the superior court is varied by reducing the decretal amount of KShs. 900,000/= by KShs. 250,000/= to KShs. 650,000/=. The appellants shall have one-third costs of this appeal.
p. 2Disposition and costs

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, "KENYA BUS SERVICES (MSA) LTD & another v AFRICANUS AUMA WANJALA [1995] KECA 90 (KLR)", Case Analysis (1995). Civil Case 106 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/90/eng@1995-07-21

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