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Court of AppealPartially AllowedCivil Appeal No. 18 of 2003

Ali Ahmed Naji v Lutheran World Federation [2010] KECA 40 (KLR)

Court of Appeal of Kenya
19 November 2010
2,699 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal more than doubled a refugee's injury compensation, ruling that refugee status does not wipe out a person's ability to earn a living.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, Waki and Onyango Otieno, JJA) heard the appellant's first appeal against quantum and the respondent's cross-appeal against findings on liability arising from a 1997 road traffic accident in which the appellant, a Somali refugee, was injured while being transported in the respondent's vehicle between Kakuma refugee camps. The trial court (Ang'awa, J) had found the respondent wholly liable and awarded Shs.200,000 for pain, suffering and loss of amenities but nothing for loss of earning capacity. The Court dismissed the cross-appeal, holding that a party is bound by its pleadings and that the trial judge's factual findings, having heard the witnesses, were supported by evidence and should not be disturbed on a first appeal unless perverse. On quantum, the Court found the Shs.200,000 award so inordinately low as to be an entirely erroneous estimate, given the gravity of the injuries (pelvic fracture, shortened leg, urinary incontinence, psychiatric depression, 75-80% incapacitation) and comparable awards, and substituted Shs.500,000. On loss of earning capacity, the Court held that the appellant's refugee status did not extinguish his earning capacity, since he might in future be employable in Somalia or elsewhere, and awarded Shs.240,000 (Shs.4,000 per month for five years), applying a multiplier approach given the uncertainty of future employability. The Court also criticised the trial judge's remarks on the doctors' qualifications, the reports having been admitted by consent. Interest was awarded at court rates from the date of the High Court judgment, with costs of the appeal and of the cross-appeal to the appellant. The judgment and decree of the High Court were accordingly varied.

Questions the Court framed

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

  1. 1.Whether the trial court's findings on liability should be disturbed on the respondent's cross-appeal
  2. 2.Whether the award of Shs.200,000 for pain, suffering and loss of amenities was so inordinately low as to warrant interference
  3. 3.Whether the Judge erred in refusing any award for loss of earning capacity on the ground that the appellant, being a refugee, had no earning capacity in Kenya

Key legal issues

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01

Interference with trial court findings of fact on liability on a first appeal

Holding

The Court confirmed the Judge's findings on liability; it would only reverse factual findings if perverse or unsupportable on the evidence

Reasoning

A first appeal is a rehearing, but the Court will not reverse a trial judge on pure findings of fact unless the decision is perverse or unsupportable on the record. The trial judge saw and heard the witnesses and accepted the appellant's version. The driver's account of passengers overloading a stationary vehicle was nowhere in the defence, and a party is bound by its pleadings. The cross-appeal therefore failed.

p. 2
02

Quantum for pain, suffering and loss of amenities

Holding

The award of Shs.200,000 was set aside and replaced with Shs.500,000

Reasoning

The trial judge failed to appreciate the gravity of the injuries, focusing on only one injury (pelvic fracture) despite medical reports showing crutch use, psychiatric depression, urinary incontinence and 75-80% incapacitation. Comparable injuries (a similar case before the same judge) had attracted Shs.250,000 nearly three years earlier, so Shs.200,000 was an entirely erroneous estimate.

p. 4
03

Loss of earning capacity for a refugee

Holding

The refusal to award any damages under this head was wrong; Shs.240,000 awarded (Shs.4,000/month for five years)

Reasoning

The appellant gave unchallenged oral evidence of his prior work as a fork-lift driver, and medical evidence established 75-80% incapacity. That he could not lawfully work in Kenya as a refugee did not extinguish his earning capacity, since he might return home or go elsewhere. A multiplier of five years was adopted given the uncertainty of future employability.

p. 5
04

Effect of consent admission of medical reports

Holding

The trial judge erred in commenting on the doctors' qualifications since the reports were admitted by consent

Reasoning

Both medical reports and the P3 form were produced by consent, so authenticity and the doctors' competence were not open to challenge. If the judge had doubts about the doctors' competence, her duty was to summon them to explain their qualifications rather than to discount the reports in the judgment.

p. 2

Legal principles established

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  • An appellate court may interfere with a trial court's award of damages only where it is so inordinately low or high as to represent an erroneous estimate or an error of principle
  • A party is bound by its pleadings; a version of events not pleaded cannot ground a defence on appeal
  • Loss of earning capacity is compensable even where the injured person is a refugee not presently permitted to work in Kenya, if he may be employable elsewhere in future
  • Documents admitted by consent cannot afterwards be challenged as to authenticity, and doubts about a witness's competence require the witness to be summoned

Court orders

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  1. 1.The cross-appeal is dismissed with costs
  2. 2.The appellant's appeal is allowed; Shs.500,000 substituted for Shs.200,000 on the head of pain, suffering and loss of amenities
  3. 3.Shs.240,000 awarded on the head of loss of earning capacity
  4. 4.Interest at court rates on both awards from the date of the High Court judgment
  5. 5.Costs of the appeal awarded to the appellant

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 Nairobi
H.C. Suit No. 1754 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate Jurisdiction Act (appeal by way of rehearing); cross-appeal by respondent

Relief refused

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Respondent's cross-appeal to reverse the findings on liability

Findings on liability were supported by evidence and the respondent's version was not pleaded

p. 2

Costs

Cross-appeal dismissed with costs; costs of the appeal awarded to the appellant

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.

1. We order that the cross appeal be and is hereby dismissed with costs.
p. 5disposition - cross-appeal
We allow the appellant’s appeal and:(a) award to the appellant the sum of Shs.500,000/- instead of the Shs.200,000/- awarded by the Judge on the head of pain, suffering and loss of amenities
p. 5disposition - general damages substituted
we are only entitled to interfere with an award of damages where we are satisfied that the sum awarded is either so inordinately low or so inordinately high that it must represent an erroneous estimate of damages or must be indicative of an error of principle by the trial court
p. 3standard for interfering with damages
the respondent was bound by its pleadings wherein the nature of the defence to be raised was never mentioned apart from denying the averments in the plaint
p. 2parties bound by pleadings
The loss of earning capacity will always remain with him and it is unreasonable to hold that he can only be compensated for that loss if he was employable in Kenya
p. 5refugee loss of earning capacity

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, "Ali Ahmed Naji v Lutheran World Federation [2010] KECA 40 (KLR)", Case Analysis (2010). Civil Appeal No. 18 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/40/eng@2010-11-19

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