Kogo v Malakwen (Civil Appeal 74 of 1998) [1998] KECA 11 (KLR)

Court of Appeal

5 November 1998

ASA.B. Shah ALA.A. Lakha EOE. Owuor

496 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed you cannot claim lost earnings in court without evidence proving the loss, and vague appeal grounds will be thrown out.

What this practically means

Executive summary

The Court of Appeal at Nairobi (Shah, Lakha and Owuor, JJ.A.) dismissed the appellant's appeal against a High Court judgment (Juma, J., dated 31 March 1998 in H.C.C.C. No. 4925 of 1989) which had awarded him K.Shs.801,753, including K.Shs.750,000 for pain, suffering and loss of amenities, following injuries sustained as a passenger in the respondent's vehicle that collided with a parked lorry along the Kisumu/Nairobi Road, leaving him with a permanent brain injury affecting his speech and reading. The appellant advanced two grounds: first, that the trial judge erred in dismissing his claim for loss of earnings; second, that the decision was against the weight of the evidence. On the first ground, the Court held there was no evidence of such loss and that the judge was right to disallow the claim for lack of proof. On the second, the Court found the ground vague and in contravention of rule 84 of the Court of Appeal Rules, which requires a memorandum of appeal to set forth concisely the grounds of objection and specify the points alleged to have been wrongly decided; applying Riano v R (1960 E.A. 960), it held that a counselled appellant may not argue any point under a general ground of appeal. In any event, discharging its duty as a first appellate court, the Court subjected the whole evidence to a fresh and exhaustive scrutiny, found no error of principle, and concluded the trial judge's decision was plainly right. The appeal was dismissed with costs.

Key legal issues

Proof of loss of earnings

Holding

The judge correctly disallowed the claim for loss of earnings because there was no evidence supporting it.

Reasoning

The appellant contended the trial judge erred in dismissing the loss of earnings claim. The Court of Appeal found there was simply no evidence before the trial court establishing such loss. Damages must be proved, and a claimant who leads no evidence of lost earnings cannot recover under that head. The disallowance was therefore correct and the ground failed.

p. 1

Vague general grounds of appeal under rule 84

Holding

A ground alleging that a decision is 'against the weight of the evidence' is vague, contravenes rule 84, and cannot be entertained; a counselled appellant may not argue points under a general ground.

Reasoning

The Court invoked rule 84 of its Rules, which requires a memorandum of appeal to set forth concisely the grounds of objection and specify the points alleged to have been wrongly decided. Relying on Riano v R, it held that a counselled appellant will not be allowed to argue any point under a general ground of appeal. The second ground was therefore incompetent.

p. 2

Duty of a first appellate court

Holding

The first appellate court must subject the whole of the evidence to a fresh and exhaustive scrutiny, but will affirm where no error of principle is shown.

Reasoning

Even setting aside the defective ground, the Court discharged its first-appellate duty by re-evaluating the entire evidence. It found no error of principle or otherwise in the trial judge's assessment, including the award of K.Shs.750,000 for pain, suffering and loss of amenities, and concluded the decision was plainly right.

p. 2

Legal principles established

A claim for loss of earnings must fail where there is no evidence proving the loss; lack of proof disentitles the claimant.
A memorandum of appeal must set forth concisely the grounds of objection, specifying the points alleged to have been wrongly decided; a general or vague ground cannot be entertained, and a counselled appellant may not argue points under a general ground of appeal.
As a first appellate court, the Court of Appeal subjects the whole of the evidence to a fresh and exhaustive scrutiny, but will not interfere with a first-instance decision absent an error of principle.

Court orders

1.The appeal is dismissed with costs

Authorities

Legislation

Court of Appeal RulesRule 84

Cases cited (1)

RIANO VS. R.
1960 E.A. 960

On appeal from: High Court of Kenya at Nairobi; H.C.C.C. No. 4925 of 1989
Jurisdiction invoked: First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers (appeal from the Judgment/Decree of the High Court)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kogo v Malakwen (Civil Appeal 74 of 1998) [1998] KECA 11 (KLR)", Case Analysis (1998). Civil Appeal No. 74 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/11/eng@1998-11-05

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