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Court of AppealDismissedCivil Appeal No. 35 of 1997· [1997] KECA 314 (KLR)

Caleb Mwashi & 3 others v S.S. Kositany [1997] KECA 314 (KLR)

Court of Appeal
31 October 1997
ROR.S.C. OmoloALA.A. LakhaSBS.E.O. Bosire
386 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it won't increase a damages award just because it's low — only if the trial judge made a real legal error.

What this practically means

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Executive summary

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This is a short, unanimous judgment of the Court of Appeal at Nairobi (Omolo and Lakha JJ.A, and Bosire AG. JA) dismissing an appeal against the quantum of damages awarded on 3rd December 1992 by Mwera, J. in High Court Civil Case No. 4831 of 1988. The three appellants complained that the trial Judge misapprehended the evidence and arrived at an inordinately low estimate of damages for their injuries. The Court restated the settled principle that an appellate court will not interfere with an award of damages unless the trial court misapprehended the evidence, omitted to take into account a relevant factor, or took into account irrelevant factors. Re-evaluating the evidence as a first appellate court, the Court accepted that the awards were low, but held they were not so low as to constitute a wholly erroneous estimate calling for intervention. The trial Judge had properly evaluated the evidence and effectively agreed with the medical evidence that the appellants suffered mainly soft tissue injuries not warranting substantial awards; the Court agreed the appellants were grossly exaggerating the degree of their injuries, even contending that the doctors who examined them had underestimated them. The appeal was accordingly dismissed with costs to the respondent. The judgment binds subordinate courts on the test for appellate interference with damages: an award that is merely low, but not wholly erroneous or based on a misapprehension of the evidence or an error of principle, will not be disturbed.

Key legal issues

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01

Whether the Court of Appeal should interfere with the quantum of damages awarded by the trial court

Holding

The appeal fails; the awards were low but not wholly erroneous, and the trial Judge correctly evaluated the evidence, including the medical evidence that the injuries were mainly soft tissue injuries

Reasoning

As a first appellate court, the Court re-evaluated the evidence before the trial Judge. It applied the settled principle that interference with damages requires misapprehension of evidence, omission of a relevant factor, or reliance on irrelevant factors. The trial Judge had considered the medical evidence and the appellants' oral testimony, found the injuries were mainly soft tissue injuries not warranting substantial awards, and correctly concluded the appellants were grossly exaggerating their injuries. The awards therefore fell within the permissible range and the appeal was dismissed with costs.

p. 2

Legal principles established

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  • An appellate court will not interfere with an award of damages by the trial court unless the trial court misapprehended the evidence, omitted a relevant factor, or took into account irrelevant factors in assessing damages

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4831 of 1988
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal as of right on the quantum of damages)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Caleb Mwashi & 3 others v S.S. Kositany [1997] KECA 314 (KLR)", Case Analysis (1997). Civil Appeal No. 35 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/314/eng@1997-10-31

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