Morris Mugambi & another v Isaiah Gitiru [2004] KECA 83 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award of Kshs.1,000,000/= in general damages for pain, suffering and loss of amenities was excessive
- 2.Whether the special damages of Kshs.30,100/= were specifically pleaded, particularised and proved
- 3.Whether the special damages should have been reduced by the agreed 15% contributory negligence
Key legal issues
#Interference with an appellate award of general damages
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/=.
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/=.
Proof of special damages
Special damages of Kshs.30,100/= were sufficiently proved by receipts and the award was upheld.
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.
Apportionment of special damages for contributory negligence
The agreed 15% contributory negligence was applied to both general and special damages in computing the final award.
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/=.
Legal principles established
#- 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
#- 1.General damages reduced from Kshs.1,000,000/= to Kshs.500,000/=, which subject to 15% contributory negligence gives Kshs.425,000/=
- 2.Special damages of Kshs.30,100/= upheld but reduced by 15% contributory negligence to Kshs.25,585/=
- 3.Final total award to the respondent fixed at Kshs.450,585/=
- 4.Appellants awarded half the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Appellants' ground that special damages were not pleaded, particularised and proved
The Court found sufficient evidence by way of receipts
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
#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.
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.
As the appellants have succeeded to a considerable extent we order that they be awarded half the costs of this appeal.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.