Beatrice Wairimu Wandurua v C. Dorman Limited [2009] KECA 218 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Apportionment of contributory negligence between a pedestrian child and a driver approaching an stopped matatu
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
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.
Interference with quantum of damages for pain and suffering and future medical expenses
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
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.
Legal principles established
#- 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
#- 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.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.After deducting 50% contributory negligence, the appellant is awarded a total of Shs. 742,582.50
- 4.The appellant is 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 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
#Costs of the appeal in full
The appellant only partially succeeded, so only half the costs of the appeal were awarded
Costs
The appellant is awarded half the costs of the 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, we set aside the learned Judge’s finding on liability and substitute therefor a finding that the respondent was 50% liable for the accident.
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.
In view of the foregoing we allow this appeal and set aside the awards made by the superior court and substitute therefor the following:
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.