John Maseno Ngala & Another v Dan Nyanamba Omare [2006] KECA 53 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Shs.2 million award to a boy with brain damage, confirming courts rarely reduce injury damages unless clearly excessive.
What this practically means
#Executive summary
#Key legal issues
#What is the duty of a first appellate court confined to an assessment of damages?
The appellate court must re-evaluate the evidence, assess it and make its own conclusions, remembering that it has neither seen nor heard the witnesses, and must make due allowance for that disadvantage.
The Court expressly framed its task by reference to Selle v. Associated Motor Boat Co. Ltd. and Williamson Diamonds Ltd. v. Brown. Because the trial court had the advantage of seeing and hearing the witnesses, the appellate court re-assesses the material afresh but with due caution. Applying that standard, the Court re-examined the conflicting reports of Dr. Mukasa and Dr. Malik, the school report cards showing the minor's fall from positions 2, 5 and 7 out of 52 to position 52, and counsel's concession that there was some degree of retardation.
What are the principles governing appellate interference with the quantum of damages?
Interference is justified only where the trial judge, in assessing damages, took into account an irrelevant factor or left out of account a relevant one, or where the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
Kneller, JA in Kemfro Africa Limited t/a Meru Express Service, Gathongo Kanini v. A.M. Lubia and Olive Lubia restated the position of the former Court of Appeal of Eastern Africa in Ilango v. Manyoka and Lukenya Ranching and Farming Co-operatives Society Ltd. v. Kavoloto, and this Court affirmed that those principles continue to be applied. Applying the test, the Court asked whether the global award of Shs.2,000,000 by Rimita, J rested on an error of principle or was so inordinately high as to be a wholly erroneous estimate; it found neither.
What is the correct method of assessing general damages for personal injuries, particularly brain damage to young children?
Comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases; awards must be reasonable, assessed with moderation, and remain to a considerable extent conventional.
The Court treated Ochieng v. Ayieko, where a boy of about ten who suffered severe brain damage was awarded Shs.700,000 in 1985 subject to 10% contributory negligence, as a comparator whose award, made over twenty years earlier, had to be weighed in assessing Shs.2,000,000. It also adopted Potter, JA's commendation in Rahima Tayab of Lord Morris's speech in West (H) & Son Ltd v. Shepherd, and Lord Denning MR's warning in Lim Poh Choo against extravagant awards and their economic consequences.
Did the trial Judge err in his appraisal of the medical evidence and in the amount of general damages awarded?
No. The Court detected no fault in the Judge's approach and had no reason to interfere with the award; liability having been conceded, the appeal failed.
The appellants' central complaint was the trial court's acceptance of Dr. Mukasa's opinion of brain damage with mental retardation and 40% permanent disability, against Dr. Malik's view that the minor looked and sounded mentally normal with a guarded prognosis. On re-evaluation, and given Mr. Mahida's concession that there was some degree of retardation, the Court held that the Judge had embarked on the correct comparative exercise; the award was neither erroneous in principle nor inordinately high.
Legal principles established
#- An appellate court may interfere with the quantum of damages awarded by a trial judge only if the judge took into account an irrelevant factor or left out of account a relevant one, or if the amount is so inordinately low or so inordinately high that it is a wholly erroneous estimate of the damage.
- In assessing general damages for personal injuries, comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases.
- On a first appeal, the appellate court must re-evaluate the evidence and reach its own conclusions while making due allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal was dismissed with costs to the respondent.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C No. 57 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal from a decree of the High Court at Nakuru; the judgment does not cite the specific constitutional or statutory provision conferring the right of appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- S J v Francesco Di Nello & another [2015] KECA 606 (KLR)[2015] KECA 606 (KLR)19 Jun 2015
Cite this brief
#Cite this brief
Caselaw, "John Maseno Ngala & Another v Dan Nyanamba Omare [2006] KECA 53 (KLR)", Case Analysis (2006). Civil Appeal 320 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/53/eng@2006-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.