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Court of AppealPartially AllowedCivil Appeal No. 273 of 1998

TRANSPORTERS (K) LTD vs CHARLES MUGABO [1999] KECA 115 (KLR)

Court of Appeal of Kenya
8 October 1999
ROR. S. C. OmoloALA. A. LakhaEOE. Owuor
1,673 words in judgment
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The bottom line

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Kenya's Court of Appeal cut an injury award from Shs.1.1 million to Shs.500,000 because damages must reflect all injuries together, not each one added separately.

What this practically means

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Executive summary

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This was a first appeal by the first defendant, Tahir Sheikh Said Transporters (K) Ltd, against the quantum of damages awarded by Nambuye J of the High Court at Eldoret to Charles Mugabo, a fare-paying passenger injured in a 1985 road accident. Liability had been entered by consent at 100% against the appellant and the second defendant. The trial Judge awarded Shs.1,115,000/= general damages, Shs.94,440/= (elsewhere stated as Shs.97,440/=) lost earnings and Shs.23,400/= special damages. The Court of Appeal, in a single judgment of the court delivered by Omolo, Lakha and Owuor JJA, restated the settled principles for interfering with a trial judge's assessment of damages. It held that the trial Judge erred in principle by assessing damages separately for each of the four injuries and adding the sums, contrary to the long-standing rule in Paolo Cavinato that general damages must be assessed on the combined effect of all injuries. Comparing comparable awards of between Shs.300,000 and Shs.490,000, the Court set aside the general damages award and substituted Shs.500,000/= with interest from the date of the superior court judgment. The Court upheld the special damages award of Shs.23,400/= because the plaint had been amended by consent. However, it set aside the lost earnings award, holding that lost earnings are special damages which must be specifically pleaded and strictly proved, following Thuranira Karauri and rejecting the Domsalla argument previously rejected in Charles Sande. The appellant was awarded two-thirds of the costs of the appeal. The decision below was varied, not reversed in its entirety.

Key legal issues

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01

Assessment of general damages for multiple injuries

Holding

The trial Judge erred in principle by awarding separate damages for each of the four injuries and adding them up; the award was set aside and substituted with Shs.500,000/=, consistent with comparable awards of Shs.300,000 to Shs.490,000

Reasoning

Following Paolo Cavinato, damages must be assessed on the combined effect of all injuries. The separate-heads approach produced an inordinately high total. Comparable authorities involved similar injuries with awards below Shs.500,000, and the Muliro paraplegia award of Shs.1,000,000 involved total loss of lower limbs, far graver than the respondent's injuries.

p. 3
02

Lost earnings without pleading

Holding

The award of Shs.97,440/= as lost earnings was set aside because no such claim was pleaded; lost earnings are special damages requiring specific pleading and strict proof

Reasoning

The respondent conceded there was no pleading of lost earnings. Relying on Thuranira Karauri, the Court held that unpleaded special damages cannot be awarded, and rejected the Domsalla argument, noting the same submissions had been rejected in Charles Sande.

p. 3
03

Special damages awarded beyond the amount originally claimed

Holding

The award of Shs.23,400/= stood because the plaint was amended by consent to substitute that figure and the Judge found it proved

Reasoning

The appellant's complaint that only Shs.14,100/= was claimed failed because leave to amend the plaint was granted unopposed during the hearing, curing any discrepancy between the claim and the award.

p. 3

Legal principles established

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  • General damages for multiple injuries must be assessed on the combined effect of all injuries, not as the sum of independent assessments for each injury
  • Lost earnings are in the nature of special damages and must be specifically pleaded and strictly proved
  • The Court of Appeal will interfere with a trial judge's assessment of damages only where a wrong principle was applied or the award is so inordinately high or low that an error of principle must be assumed

Court orders

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  1. 1.The award of Shs.1,115,000/= as general damages for pain, suffering and loss of amenities is set aside and substituted with an award of Shs.500,000/=, with interest at court rates from 23rd May 1995
  2. 2.The sum of Shs.23,400/= as special damages remains undisturbed, with interest at court rates from the date the suit was filed
  3. 3.The award of Shs.97,440/= as lost earnings is set aside
  4. 4.The appellant is awarded 2/3 of the costs of the appeal
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. R. 147 of 1987
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the judgment and decree of the High Court)

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, "TRANSPORTERS (K) LTD vs CHARLES MUGABO [1999] KECA 115 (KLR)", Case Analysis (1999). Civil Appeal No. 273 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/115/eng@1999-10-08

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