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Court of AppealPartially AllowedCivil Appeal No. 48 of 1996· [1997] KECA 301 (KLR)

MARY MUKIRI vs NJOROGE KIANIA [1997] KECA 301 (KLR)

Court of Appeal of Kenya
30 April 1997
1,726 words in judgment
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The bottom line

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Kenya's Court of Appeal increased an accident victim's compensation but refused claims that weren't properly pleaded and proved with evidence.

What this practically means

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Executive summary

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This Court of Appeal decision (Kwach, Tunoi and Shah JJ.A) concerned quantum in a negligence claim arising from a road traffic accident of 18th January 1984 in which the appellant, then a 17-year-old Form IV student, suffered severe head injuries including seven days' unconsciousness, permanent neurological deficit with complete right sixth nerve paralysis, partial seventh nerve paralysis, facial scarring and recurrent headaches. Liability had been agreed at 80% against the respondent, so the appeal was purely on damages. The High Court (Butler-Sloss J) had awarded Shs.200,000/= general damages in May 1989. The Court of Appeal, applying the settled principles in Robert Msioki Kitavi v Coastal Bottlers Ltd, held the trial judge erred in principle by considering only the facial scars and overlooking facial asymmetry, recurrent headaches and the decline in the appellant's school performance. It increased general damages to Shs.275,000/=, guided by Kenyan conditions and the compensatory (not punitive) purpose of damages. Claims for special damages, loss of earnings/earning capacity and future medical care failed because they were neither pleaded nor strictly proved. The appeal was allowed to that extent: judgment was substituted at Shs.220,840/80 with 12% interest from 10th May 1989, the appellant received one-half the costs of the appeal, and the superior court costs order was undisturbed. The court also deprecated the practice of simultaneous written submissions contrary to Order XVII rule 2(3) of the Civil Procedure Rules.

Key legal issues

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01

Interference with award of general damages

Holding

The trial judge erred in principle by overlooking facial asymmetry, recurrent headaches and deterioration in school performance; the award was increased from Shs.200,000/= to Shs.275,000/=.

Reasoning

The court applied the settled Kitavi principles: interference is warranted where a relevant factor is omitted or an irrelevant one considered, or where the award is an erroneous estimate. The judge focused only on the facial scars and ignored the overall effect of the injuries, including facial asymmetry, recurrent headaches and decline in school performance, all substantial factors. Guided by Kenyan conditions and the fact that damages were assessed in 1989, the court substituted Shs.275,000/=.

p. 3
02

Pleading and proof of special damages

Holding

Special damages must be pleaded and strictly proved; since neither was done, the claim for loss of earnings/earning capacity fell away.

Reasoning

The special damages were not specified in the plaint and no amendment was sought; loss of earnings was also not pleaded. Counsel properly abandoned that ground of appeal. The court cited Kenya Bus Services v Mayende, Idi Ayub Shabani v City Council of Nairobi and Ouma v Nairobi City Council for the pleading and strict proof requirement, and held the appellant had not proved loss of earnings with any certainty.

p. 2
03

Future medical care and treatment

Holding

No award could be made where the cost of future medical care was neither pleaded nor proved by evidence.

Reasoning

Counsel sought Shs.50,000/= based on Professor Ruberti's medical report, but no evidence established the cost of the future care and treatment, and the head was not pleaded. Without pleading and proof the court could not make an award under that head.

p. 2

Legal principles established

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  • 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 as to be an erroneous estimate.
  • Special damages must be both specifically pleaded and strictly proved.
  • Damages compensate the injured; they do not punish the tort-feasor, and awards must be guided by Kenyan conditions.
  • Written submissions filed simultaneously in disregard of Order XVII rule 2(3) of the Civil Procedure Rules are a practice the Court of Appeal discourages.

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities increased from Shs.200,000/= to Shs.275,000/=
  2. 2.Substitution of the superior court judgment with a judgment for the appellant in the sum of Shs.220,840/80 with interest at 12% per annum from 10th May 1989 until payment in full
  3. 3.Appellant awarded one-half the costs of the appeal
  4. 4.Order of costs in the superior court left undisturbed

Authorities

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Legislation

  • Civil Procedure RulesOrder XVII rule 2(3)

Cases cited (8)

  • Kenya Bus Services vs Mayende
    (1991) 2 KAR 232
  • Idi Ayub Shabani v City Council of Nairobi
    (1985) 1 KAR 681
  • Ouma vs Nairobi City Council
    [1976] KLR 297
  • Robert Msioki Kitavi vs Coastal Bottlers Limited
    (1985) 1 KAR 891
  • Singh v Singh & Handa
    (1955) 22 EACA 125
  • Butt v. Khan
    (1977) 1 KAR 1
  • Akwiri vs Kilembe Mines Ltd.
    (1970) E.A. 498
  • Njoroge Gakire & Another v. Abercrombie & Kent Ltd.
    H.C.C.C. No. 3684 of 1979 (unreported)
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 under the applicable appellate provisions of the Judicature Act/Civil Procedure Act (not expressly stated 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, "MARY MUKIRI vs NJOROGE KIANIA [1997] KECA 301 (KLR)", Case Analysis (1997). Civil Appeal No. 48 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/301/eng@1997-04-30

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