MARY MUKIRI v NJOROGE KIANIA [1997] KECA 46 (KLR)
The bottom line
#Kenya's Court of Appeal raised an accident victim's compensation but refused claims that were not properly pleaded and proved with evidence.
What this practically means
#Executive summary
#Key legal issues
#Principles for interference with an award of general damages on appeal
The Court of Appeal interferes only where the trial judge took into account a wrong factor, omitted a relevant factor, or the award is an erroneous estimate; here the judge omitted facial asymmetry, recurrent headaches and decline in school performance, and so erred in principle.
The court adopted Kneller JA's formulation in Robert Msioki Kitavi v Coastal Bottles Limited. It found the trial judge focused on the facial scars but overlooked facial asymmetry from right facial nerve weakness, recurrent severe headaches, and deterioration in school performance, all substantial factors. Had he considered them, he would have awarded more. The court therefore substituted Shs. 275,000/= for Shs. 200,000/=, guided by Kenyan conditions and the fact that interest would run from the date of assessment.
Pleading and proof of special damages, loss of earnings and future medical expenses
Special damages must be pleaded and strictly proved; loss of earnings or earning capacity and future medical care must likewise be pleaded and proved, failing which no award lies under those heads.
The special damages were not specified in the plaint nor was the plaint amended to quantify them, so the ground was rightly abandoned. Loss of earnings or earning capacity was not pleaded and was not proved with certainty. The claim for Shs. 50,000/= for future medical care was neither pleaded nor supported by evidence of cost. The court relied on Kenya Bus Services v Mayende, Idi Ayub Shabani v City Council of Nairobi and Ouma v Nairobi City Council.
Practice of written submissions in the superior court
The court deprecated the growing practice of written submissions filed simultaneously in disregard of order XVII rule 2(3) of the Civil Procedure Rules, which denied opposing counsel a chance to respond.
In the superior court, the respondent's counsel filed written submissions to which the appellant's counsel was not given a chance to respond. The court observed that a judge cannot ask questions of written submissions and urged that advocacy is conducted by oral argument. This passage is obiter commentary rather than a ratio disposing of the appeal.
Legal principles established
#- The Court of Appeal will only disturb an award of damages where the trial judge took into account a factor he ought not to have, failed to take into account something he ought to have, or the award is so high or so low that it amounts to an erroneous estimate.
- Special damages must be both pleaded and strictly proved before an award can be made.
- Damages are compensatory, not punitive, and awards are guided by Kenyan conditions.
Court orders
#- 1.General damages for pain, suffering and loss of amenities increased from Shs. 200,000/= to Shs. 275,000/=
- 2.Substitution for the superior court judgment of a judgment for the appellant in the sum of Shs. 220,840/80 with interest thereon at twelve percentum per annum from the 10th day of May, 1989 until date of payment in full
- 3.Appellant awarded one-half the costs of this appeal
- 4.The order in the superior court remains undisturbed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 61 of 1987
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment and decree of the High Court in a civil suit (no specific constitutional or statutory provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARY MUKIRI v NJOROGE KIANIA [1997] KECA 46 (KLR)", Case Analysis (1997). Civil Appeal 48 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/46/eng@1997-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.