Fred M O & 2 others v Sarah Achieng Salasie [2008] KECA 7 (KLR)
The bottom line
#Kenya's Court of Appeal cut a road accident payout from Kshs.7.4 million to Kshs.6.9 million because parts of the claim lacked evidence, but kept the big awards intact.
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 trial court's finding of liability against the bus driver and owners could be disturbed on appeal
- 2.Whether the award of Kshs.486,000/= for loss of earnings was supported by the evidence
- 3.Whether the awards for loss of earning capacity, nurse maid payments and loss of amenities were justified
- 4.Whether special damages which were not specifically pleaded nor strictly proved could be awarded
Key legal issues
#Loss of earnings award without evidential foundation
The award of Kshs.486,000/= for loss of earnings was set aside because the respondent testified she was not earning anything.
Though the plaint stated the respondent earned Kshs.4,500/= per month at the time of the accident, she testified under cross-examination that she was not earning anything. An appellate court cannot sustain a damages award that has no evidential support, and the award on this subhead had to be deducted from the total.
Special damages not specifically pleaded
Special damages were recoverable only up to the amount proved by receipts, Kshs.238,406/=, not the Kshs.241,741/= awarded below.
Counsel for the appellants complained that special damages were neither specifically pleaded nor strictly proved. The court accepted the physiotherapy receipts produced and confined the award to the receipts' total, deducting the excess of Shs.3,335/= from the award below.
Liability finding by the trial court
The finding that the bus driver was solely to blame was not disturbed on appeal.
The trial court found that the driver was driving too fast for the circumstances and that a careful driver should anticipate unlit vehicles parked on roads and drive accordingly. The appellants' arguments on appeal concentrated on quantum, and the court made no finding disturbing the liability determination.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved; only amounts proved by evidence (such as receipts) can be awarded.
- Loss of earnings cannot be awarded where the plaintiff's own evidence is that she was not earning anything.
- Loss of earning capacity is compensable where the plaintiff's training shows she would have obtained gainful employment.
Court orders
#- 1.The appeal is allowed to the extent that Kshs.486,000/= for loss of earnings and Shs.3,335/= of special damages awarded in excess of what was proved be deducted from the award of Kshs.7,419,741/= made by the superior court
- 2.Judgment is entered for the respondent in the sum of Kshs.6,930,406/= with full costs of the superior court case
- 3.The appellants will be paid 1/4 of the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 605 of 1994
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution and Appellate Jurisdiction Act over appeals from the High Court
Relief refused
#Setting aside the award of Kshs.1,200,000/= for loss of earning capacity
The respondent had completed training in technology and information services and would have obtained gainful employment in that field during her lifetime
Setting aside the awards of Kshs.192,000/= and Kshs.300,000/= for past and future nursing care
The respondent suffered serious injuries which confined her to a wheel chair, making the awards justified
Setting aside the award of Kshs.5,000,000/= for loss of amenities
The respondent had been confined to a wheel chair since the 1993 accident with no hope of improvement
Costs
Judgment for the respondent of Kshs.6,930,406/= with full costs of the superior court case; the appellants to be paid 1/4 of 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 the result this appeal is allowed to the extend only that Kshs.486,000/= for loss of earnings and Shs. 3,335/= awarded as specials in excess of what was proved will be deducted from the initial award of Kshs.7,419,741/= made by the superior court leaving a balance of Kshs.6,930,406/= for which judgment is entered for the respondent with full costs of the superior court case while the appellants will be paid ¼ of the costs of this appeal.
With this kind of evidence from the respondent herself, the learned Commissioner of Assize had no basis for awarding her a total of Kshs.486,000/= on this subhead.
though these were not specifically pleaded, the respondent, nevertheless, produced receipts for physiotherapy which were accepted by the court, and we feel she was entitled to damages as shown on those receipts
Issues in the judgment
#The judgment refers to the bus as registration number KAB 542R when introducing the facts but later as KAB 542K, an internal inconsistency in vehicle registration numbers.
The judgment inconsistently renders the trailer/truck registration as KN 3379L and KN 3399L at different points.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred M O & 2 others v Sarah Achieng Salasie [2008] KECA 7 (KLR)", Case Analysis (2008). Civil Appeal No. 294 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/7/eng@2008-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.