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Court of AppealPartially AllowedCivil Appeal 90 of 1996· [1996] KECA 89 (KLR)

Securicor (K) Ltd v Esther Oliech [1996] KECA 89 (KLR)

Court of Appeal of Kenya
21 June 1996
JGJ.E. GicheruASA.B. ShahALA.A. Lakha
348 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a personal injury award because special damages must be specifically pleaded and strictly proved — good lawyering matters.

What this practically means

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Executive summary

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This was a defendant's appeal to the Court of Appeal at Kisumu against the judgment of Wambilyangah, J. of the High Court (H.C.C.C. No 287 of 1992, delivered 14 February 1996), which awarded the plaintiff special damages of Ksh. 120,000/- and general damages of Ksh. 600,000/- for injuries sustained in an accident on 15 February 1990: head injury, whiplash neck injury, chest injury and a midshaft fracture of the right femur requiring three years on crutches. The injuries were not in dispute. The Court of Appeal, in a single judgment of the court delivered by Gicheru, Shah and Lakha, JJA, held that the award of general damages did not err in principle and was not excessive, being commensurate with the injuries, and declined to disturb it. However, it held that the special damages could not be sustained because, as settled law requires, special damages must be specifically pleaded and strictly proved, and neither was done, even though the appellant had made that submission in the superior court. The appeal was accordingly allowed in part: the decree was varied by deleting the figure of Shs. 504,700/- and substituting Shs. 420,000/- with interest at 12% from 14 February 1996 until payment in full, and the appellant was awarded one-fourth of the costs of the appeal. The judgment binds lower courts on the strict pleading and proof of special damages.

Key legal issues

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01

Sustainability of the award of special damages

Holding

The award of special damages was set aside because the items were neither specifically pleaded nor strictly proved, despite the point having been raised before the trial court.

Reasoning

The court applied the settled rule that special damages must be both specifically pleaded and strictly proved. The appellant had made a submission to that effect in the superior court, but the trial judge nonetheless awarded the special damages. The appellate court held that such an award could not be sustained and set it aside, while leaving the general damages intact.

p. 1
02

Interference with the award of general damages

Holding

The award of general damages of Ksh. 600,000/- was not disturbed as it was commensurate with the injuries and did not err in principle.

Reasoning

As a first appellate court, the Court of Appeal will not interfere with an award of general damages unless it is shown to err in principle or to be so excessive as to warrant interference. The injuries (head, neck, chest and midshaft femur fracture requiring three years on crutches) justified the award, so the general damages award stood.

p. 1

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved; an award of special damages made without pleading or strict proof cannot stand on appeal.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decree of the superior court varied by deleting the figure of Shs. 504,700/- and substituting therefor the sum of Shs. 420,000/- with interest thereon at 12% from February 14, 1996 until payment in full
  3. 3.Appellant to have one-fourth costs of the appeal
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No 287 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment of the High Court (statutory appellate jurisdiction; no specific provision cited in the judgment)

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, "Securicor (K) Ltd v Esther Oliech [1996] KECA 89 (KLR)", Case Analysis (1996). Civil Appeal 90 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/89/eng@1996-06-21

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