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Court of AppealPartially AllowedCivil Appeal No. 138 of 2002

Morris Mugambi & another v Isaiah Gitiru [2004] KECA 83 (KLR)

Court of Appeal of Kenya
28 May 2004
1,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal halved a Kshs.1 million injury award to Kshs.500,000, ruling damages must match comparable Kenyan cases.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Omolo, O'Kubasu, JJ.A. and Ringera, AG.JA) allowed this appeal in part against the assessment of damages by Kasanga Mulwa, J. in H.C.C.C. No. 99 of 2001, liability having been settled by consent at 85%/15% following a road traffic accident on 2nd November 2000 in which the respondent, a pedestrian, sustained comminuted fractures of both femurs and other injuries. The appellants contended that the award of Kshs.1,000,000/= in general damages was excessive and plucked from the air, and that the special damages of Kshs.30,100/= were unproved and should have been reduced by the agreed 15% contributory negligence. The Court restated the settled principles governing appellate interference with quantum - irrelevant factor considered, relevant factor omitted, or an inordinately high or low award amounting to a wholly erroneous estimate - and endorsed the comparative approach that comparable injuries should attract comparable awards. Noting that no comparable authority had awarded more than Kshs.600,000/= for similar injuries, and that the trial judge had relied on undisclosed sources, the Court held the award too high and reduced it to Kshs.500,000/=. Special damages were upheld as sufficiently proved by receipts. Applying the 15% contributory negligence to both heads, the final award was fixed at Kshs.450,585/=. The appeal succeeded to a considerable extent and the appellants were awarded half the costs of the appeal. The judgment binds lower courts on the principles for disturbing quantum and the comparative-awards methodology.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the award of Kshs.1,000,000/= in general damages for pain, suffering and loss of amenities was excessive
  2. 2.Whether the special damages of Kshs.30,100/= were specifically pleaded, particularised and proved
  3. 3.Whether the special damages should have been reduced by the agreed 15% contributory negligence

Key legal issues

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01

Interference with an appellate award of general damages

Holding

The award of Kshs.1,000,000/= was so high relative to comparable authorities (none exceeding Kshs.600,000/= for similar injuries) as to be an erroneous estimate; reduced to Kshs.500,000/=.

Reasoning

The Court restated the settled principles for disturbing quantum: irrelevant factor taken into account, relevant factor omitted, or an inordinately low or high award amounting to a wholly erroneous estimate. The trial judge's reliance on undisclosed 'other sources' meant the appellate court could not verify the basis for the figure, and comparable case law supported no more than Kshs.600,000/=, justifying interference and reduction to Kshs.500,000/=.

p. 4
02

Proof of special damages

Holding

Special damages of Kshs.30,100/= were sufficiently proved by receipts and the award was upheld.

Reasoning

Although the appellants argued the special damages were not specifically pleaded, particularised and proved, the Court was satisfied that receipts produced in evidence supported the award and declined to disturb it on that ground.

p. 4
03

Apportionment of special damages for contributory negligence

Holding

The agreed 15% contributory negligence was applied to both general and special damages in computing the final award.

Reasoning

Liability had been settled by consent at 85%/15%. The trial judge's total award had reduced general damages by 15% but apparently not the special damages; the Court corrected this by applying the 15% deduction to both heads, producing a final award of Kshs.450,585/=.

p. 4

Legal principles established

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  • In assessing damages, comparable injuries should so far as possible be compensated by comparable awards, keeping in mind the level of awards in similar cases
  • An appellate court may interfere with 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 of the damage

Court orders

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  1. 1.General damages reduced from Kshs.1,000,000/= to Kshs.500,000/=, which subject to 15% contributory negligence gives Kshs.425,000/=
  2. 2.Special damages of Kshs.30,100/= upheld but reduced by 15% contributory negligence to Kshs.25,585/=
  3. 3.Final total award to the respondent fixed at Kshs.450,585/=
  4. 4.Appellants awarded half the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 99 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment); appeal against assessment of damages

Relief refused

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Appellants' prayer to reduce general damages to Kshs.300,000/=

The Court found Kshs.500,000/= fair and reasonable in view of the injuries, interfering only partially

p. 4

Appellants' ground that special damages were not pleaded, particularised and proved

The Court found sufficient evidence by way of receipts

p. 4

Costs

Appellants awarded half the costs of the appeal: "As the appellants have succeeded to a considerable extent we order that they be awarded half the costs of this appeal."

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

in assessment of damages the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the level of awards in similar cases.
p. 3General method of assessing damages
The appeal court must be satisfied either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
p. 3Principles for appellate interference with quantum
As the appellants have succeeded to a considerable extent we order that they be awarded half the costs of this appeal.
p. 4Final orders - costs
In our view the figure of Shs. 1,000,000/= awarded as general damages is too high in the circumstances of this case. We must interfere and reduce it to the awards in comparable cases.
p. 4Reduction of excessive general damages

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, "Morris Mugambi & another v Isaiah Gitiru [2004] KECA 83 (KLR)", Case Analysis (2004). Civil Appeal No. 138 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/83/eng@2004-05-28

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