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Court of AppealPartially AllowedCivil Appeal 147 of 1994· [1997] KECA 94 (KLR)

2. Musango Euule Lele v Rose Mulee Mutua

Court of Appeal of Kenya
30 April 1997
RKR. O. KwachPhilip Kiptoo TunoiP. K. TunoiASA. B. Shah
0 words in judgment
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The bottom line

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Kenya's Court of Appeal slashed a Shs.620,000 injury award to Shs.50,000 because the plaintiff never proved her claims with evidence at trial.

What this practically means

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Executive summary

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The respondent, a fare-paying passenger, was injured in a road traffic accident on 4th June 1990 involving a bus owned by the first appellant and driven by the second appellant. Liability and special damages of Shs.4,500 were entered by consent before Osiemo J of the High Court at Machakos, and on 23rd February 1994 the judge awarded Shs.450,000 general damages for pain, suffering and loss of amenities, Shs.50,000 for future medical expenses and Shs.120,000 for hiring domestic help, based on written submissions and two consented medical reports, with no oral evidence led at trial. The Court of Appeal (Kwach, Tunoi and Shah JJA) allowed the appeal. It deprecated the practice of written submissions, holding that counsel are required to address the court orally and that the practice has no basis in Order XVII of the Civil Procedure Rules. The court found the Onyango medical report to be of no probative value, possibly fabricated, and grossly exaggerated, and preferred the Mwang'ombe report showing minor injuries with complete recovery. Applying the settled principles in Ilanga v Manyoka and Kemfro Africa Ltd v A.M. Lubia, the court held the judge had assessed damages in vacuo and that the award was so inordinately high as to be a wholly erroneous estimate. It substituted Shs.50,000 general damages with interest, set aside the awards for future medical expenses and hiring of domestic help entirely for want of evidence, left the special damages award undisturbed, and awarded the appellants the costs of the appeal, with subordinate court costs on the subordinate court scale.

Key legal issues

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01

Principles for disturbing quantum of damages on appeal

Holding

The appeal court may interfere only where an irrelevant factor was considered, a relevant one ignored, or the award is so inordinately low or high as to be a wholly erroneous estimate; here the judge relied on a discredited report and heard no evidence, assessing damages in vacuo.

Reasoning

The court applied the settled East African principles from Ilanga v Manyoka and Kemfro Africa Ltd v A.M. Lubia. The trial judge relied heavily on the Onyango report, which the court found to be of no probative value and possibly fabricated, and no evidence was led at trial. The award of Shs.450,000/- for minor injuries with full recovery was inordinately high, and the court substituted Shs.50,000/-.

p. 3
02

Awards unsupported by evidence

Holding

The awards for future medical expenses and hiring of domestic help were set aside in their entirety because the plaintiff gave no evidence supporting them.

Reasoning

The plaintiff did not testify at trial and no evidence was led; the Mwang'ombe report put no figure on future medical care. Claims for future medical expenses and hire of domestic help required proof, which was absent. The court held it had a duty to correct this transgression and set both awards aside.

p. 3
03

Practice of written submissions in civil trials

Holding

Written submissions have no basis in Order XVII of the Civil Procedure Rules or elsewhere; counsel are required to address the court orally, and the practice is deprecated.

Reasoning

The court observed that written submissions deprive the court of the opportunity to question counsel, seek clarification, and exclude inadmissible material. It described the practice as of dubious provenance with no practical utility and expressed hope that it would be abandoned. This was obiter commentary rather than the ratio, which concerned quantum.

p. 2

Legal principles established

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  • An appellate court may disturb quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
  • The practice of written submissions in civil trials has no basis in the Civil Procedure Rules and is deprecated; counsel must address the court orally.
  • Damages awards must be supported by evidence; awards made without evidence are a serious transgression which the appellate court must correct.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the superior court set aside
  3. 3.Judgment entered for the plaintiff for Shs.50,000/- general damages for pain, suffering and loss of amenities with interest at court rates from the date of judgment in the superior court
  4. 4.Costs in the subordinate court on the subordinate court scale
  5. 5.Award for special damages not disturbed as there was no appeal against it
  6. 6.Appellants awarded the costs of the appeal
On appeal from
High Court of Kenya at Machakos
Civil Case No. 3398 of 1988
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Civil Procedure Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "2. Musango Euule Lele v Rose Mulee Mutua", Case Analysis (1997). Civil Appeal 147 of 1994. Source:

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