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Court of AppealPartially AllowedCivil Appeal 35 of 2004

Beatrice Wairimu Wandurua v C. Dorman Limited [2009] KECA 218 (KLR)

Court of Appeal of Kenya
10 July 2009
1,717 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 doubled a road accident victim's compensation by finding the driver and the injured schoolgirl equally at fault, confirming courts can raise unfairly low damages awards.

What this practically means

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Executive summary

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This appeal from the High Court at Nyeri (Juma, J.) arose out of a road accident on 17th December 2000 in which the appellant, a 14-year-old girl, was struck by a motor vehicle owned by the respondent while crossing the Kiganjo–Marua road. She suffered compound fractures of the left tibia and dislocation of the left ankle, leaving her with approximately 40% disability and requiring extensive future surgery. The trial Judge found both parties contributorily negligent, apportioning liability at 75% against the appellant and 25% against the respondent, and awarded damages totalling Shs. 648,165.00 reduced to Shs. 162,042.00 after the contribution. The Court of Appeal held that the trial Judge's apportionment was manifestly wrong: the respondent's driver was driving at an unreasonably high speed of 60 kph near a stationary matatu and was not keeping a proper look out, and there were no valid grounds for holding him contributorily less negligent than the appellant. The court set aside the finding on liability and substituted 50% liability on the respondent. On quantum, applying comparable awards and adopting the Wokabi medical report as the most reasonable guide, the court found the awards for pain and suffering and future medical expenses so inordinately low as to be wholly erroneous estimates, substituting Shs. 550,000.00 and Shs. 850,000.00 respectively, together with special damages of Shs. 85,165.00, giving Shs. 742,582.50 after the 50% deduction for contributory negligence. The appeal was allowed to that extent and the appellant was awarded half the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the learned trial Judge erred in apportioning liability for the road accident at 75% against the appellant and 25% against the respondent
  2. 2.Whether the awards for general damages for pain and suffering and future medical expenses were so inordinately low as to warrant interference by the appellate court

Key legal issues

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01

Apportionment of contributory negligence between a pedestrian child and a driver approaching an stopped matatu

Holding

The trial Judge's apportionment of 75%/25% was manifestly wrong; a driver who fails to keep a proper look out and drives at an unreasonably high speed near a stopped matatu is as much at fault as a pedestrian who crosses without ascertaining safety; liability should be apportioned equally at 50% each

Reasoning

The respondent's driver admitted driving at 60 kph and not attempting to brake when he saw the matatu. That speed was unreasonably high in the circumstances and partly contributed to the collision. Had he been more careful he could have seen the appellant before the moment of impact and avoided the collision; he too was not keeping a proper look out. There were therefore no valid grounds for holding the driver contributorily less negligent than the appellant, and the trial Judge's apportionment was based on a manifestly wrong assessment of the facts.

p. 2
02

Interference with quantum of damages for pain and suffering and future medical expenses

Holding

Awards of Shs. 350,000.00 for pain and suffering and Shs. 213,000.00 for future medical expenses were so inordinately low as to be wholly erroneous estimates; the court substituted Shs. 550,000.00 and Shs. 850,000.00 respectively, adopting the Wokabi medical report as the most reasonable guide

Reasoning

The two consultant surgeons were agreed that the appellant suffered grave, incapacitating leg injuries requiring long and expensive future surgery; they differed only on mode and cost of treatment. Considering comparable awards for such injuries in the case of a 14-year-old victim whose injuries had shown no healing two years after the accident and who had a 40% disability, the trial court's awards were so inordinately low as to be wholly erroneous estimates warranting appellate interference. The Wokabi report, which put future surgical treatment at approximately Shs. 850,000, was accepted as the most reasonable guide.

p. 3

Legal principles established

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  • An appellate court will not interfere with the apportionment of liability unless the judge came to a manifestly wrong decision or based the apportionment on wrong principles
  • An appellate court will interfere with an award of damages where it is so inordinately low or high as to be a wholly erroneous estimate

Court orders

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  1. 1.The learned Judge's finding on liability is set aside and substituted with a finding that the respondent was 50% liable for the accident
  2. 2.The awards made by the superior court are set aside and substituted: general damages for pain, suffering and loss of amenities of Shs. 550,000.00; future medical expenses of Shs. 850,000.00; special damages of Shs. 85,165.00
  3. 3.After deducting 50% contributory negligence, the appellant is awarded a total of Shs. 742,582.50
  4. 4.The appellant is 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
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 1 of 2002
Jurisdiction invoked
First appellate appeal from the High Court under the Civil Procedure Act/Court of Appeal's appellate jurisdiction

Relief refused

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Costs of the appeal in full

The appellant only partially succeeded, so only half the costs of the appeal were awarded

p. 3

Costs

The appellant is awarded half the costs of the 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 the result, we set aside the learned Judge’s finding on liability and substitute therefor a finding that the respondent was 50% liable for the accident.
p. 3Apportionment of liability
It is trite law that an appellate court will not interfere with the issue of apportionment of liability unless the Judge came to a manifestly wrong decision or based his apportionment on wrong principles.
p. 3Standard for appellate interference with apportionment
In view of the foregoing we allow this appeal and set aside the awards made by the superior court and substitute therefor the following:
p. 3Substitution of quantum of damages
The final position therefore is that the appeal is allowed to the extent stated above. Since the appellant has partially succeeded, we award her half the costs of the appeal.
p. 3Final orders and costs

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, "Beatrice Wairimu Wandurua v C. Dorman Limited [2009] KECA 218 (KLR)", Case Analysis (2009). Civil Appeal 35 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/218/eng@2009-07-10

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