Cecilia W. Mwangi & Josephat Mwangi v Ruth W. Mwangi
The bottom line
#Kenya's Court of Appeal slashed a road accident damages award from Kshs.960,000 to Kshs.282,080 because the victim couldn't prove her income with records.
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 award of Kshs.450,000 for pain, suffering and loss of amenities was excessive and warranted interference on appeal
- 2.Whether the respondent proved her claim for loss of earnings and loss of earning capacity
- 3.Whether the award of Kshs.150,000 for future surgery was justified where the surgery was not certain to be undertaken
- 4.What award, if any, should be made for physiotherapy and attendant costs
Key legal issues
#Excessiveness of the general damages award for pain, suffering and loss of amenities
The award of Kshs.450,000 was set aside and substituted with Kshs.300,000, reflecting comparable pelvic-fracture awards of about Kshs.200,000 in 1992-1993 adjusted for the fall in the value of money.
The learned judge misapprehended the evidence on the sequelae of the injuries and gave too much weight to Dr. Bhanji's reports, which the Court found suggestive of exaggeration. Dr. Owino's candid assessment was preferred. Applying the principle that comparable injuries should attract comparable awards, and noting that pelvic-fracture injuries attracted about Kshs.200,000 in 1992-1993, the Court reassessed damages at Kshs.300,000 with interest from the date of the judgment below.
Proof of loss of earnings and loss of earning capacity
The award for loss of earning capacity was set aside in its entirety because the respondent failed to strictly prove her claimed earnings.
The respondent claimed net profits of Kshs.52,000 per month on oath but Kshs.80,000 per month in the plaint, yet produced no account books or income tax returns; the documents she produced did not show her net profit and her bank statements post-dated the accident. Although the judge noted the absence of documentary support, he nonetheless worked out a monthly loss over a 36-month period exceeding even the 25 months indicated by her own doctor. The claim failed for want of strict proof.
Award for future surgery not yet undergone
The award of Kshs.150,000 for surgery was set aside and replaced with Kshs.50,000 for physiotherapy and attendant travelling costs.
The surgery recommended by Dr. Bhanji was not a medical necessity, was not contemplated by Dr. Owino, and the respondent had not undergone it nor spoken of it. Since one physiotherapy treatment was conceded to cost Kshs.500, the Court awarded Kshs.50,000 to cover such treatments and transport costs, going by Dr. Owino's report.
Apportionment of damages to reflect agreed 80% liability
The final damages were reduced by 20% to reflect the appellants' agreed 80% liability, which the learned judge had failed to do.
Liability was agreed at 80% for the appellants, but the judge did not reduce the damages by 20%. The Court applied the reduction to the reassessed total, producing judgment of Kshs.2,080 special damages and Kshs.280,000 general damages, nett.
Legal principles established
#- Awards of damages must be within limits set by decided cases and within limits Kenyans can afford, since large awards are passed on to the public through insurance costs and fees.
- Loss of earnings is a special damage claim that must be specifically pleaded and strictly proved; loss of earning capacity must be proved on a balance of probability.
- A plaintiff cannot simply throw figures at the judge; damages must be proved, not merely asserted in particulars.
- Comparable injuries should, so far as possible, be compensated by comparable awards, assessed reasonably and with moderation.
- Where medical reports by consent contain disagreements, the experts should be called for cross-examination; taking shortcuts makes the court's task of assessing damages difficult.
Court orders
#- 1.Appeal allowed; damages of Kshs.960,000 reduced to Kshs.350,000 and further reduced by 20% to reflect the appellants' 80% liability
- 2.Judgment entered for the respondent: special damages Kshs.2,080 nett and general damages Kshs.280,000 nett
- 3.Special damages to carry interest at court rate from 25th January 1993 until payment in full
- 4.General damages to carry interest at court rates from 10th July 1996 until payment in full
- 5.Respondent to pay two-thirds of the costs of the appeal to the appellants
- 6.Appellants to pay the respondent her costs in the superior court, to be taxed on the basis of damages awarded by the Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Civil Suit No. 24 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the High Court in a civil suit (statutory appellate jurisdiction over the High Court)
Relief refused
#Award for loss of earning capacity
Loss of earnings is a special damage that must be specifically pleaded and strictly proved; the respondent produced no account books or income tax returns to substantiate the claimed profits
Award of Kshs.150,000 for future surgery
The operation suggested by Dr. Bhanji was not a must, was not contemplated by Dr. Owino, and the respondent had not undergone it
Costs
Respondent to pay two-thirds of the costs of the appeal to the appellants; appellants to pay the respondent her costs in the superior court, to be taxed on the basis of damages awarded by the Court.
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.
The upshot of all this is that this appeal is allowed and damages awarded in the sum of shs.960,000/= are reduced to shs.350,000/= and further reduced by 20%, as the appellants' liability was 80%.
As the appellants have had substantial measure of success in this appeal, we would order the respondent to pay two-thirds of costs of this appeal to the appellants.
Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved.
It has been quite often pointed out by this court that awards of damages must be within limits set by decided cases and also within limits that Kenyans can afford.
it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards
We would hope that in future the advocates will not take such shortcuts. Calling the doctors could have helped to clarify the differences in the two medical opinions
Issues in the judgment
#The judgment contains an internally contradictory statement on the general damages award: it first describes the award of Kshs.450,000 as 'too high to merit interference' before going on to interfere with and reduce it.
The coram lists the judges as 'JUDGE OF APPEAL' but the judgment was delivered at Nairobi while the cause heading places the court at Nyeri; the delivery station differs from the registry of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cecilia W. Mwangi & Josephat Mwangi v Ruth W. Mwangi", Case Analysis (1997). Civil Appeal 251 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.