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Court of AppealPartially AllowedCivil Appeal 152 of 2005

Fakir Mohammed v Joseph Mugambi Kiara & 2 others [2010] KECA 51 (KLR)

Court of Appeal of Kenya
19 November 2010
ROR.S.C. OmoloEOE.O. O'KubasuDAD.K.S. Aganyanya
2,102 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a road accident damages award from Kshs.708,940 to Kshs.600,000 because the claimant never proved special damages with actual evidence.

What this practically means

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Executive summary

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This Court of Appeal decision at Nyeri disposed of an appeal against the quantum of damages awarded by Kasanga Mulwa, J. in the High Court at Meru, liability having been conceded. The respondent had been injured in a 1988 road accident as a paying passenger, sustaining a fractured femur, facial cuts, fractured teeth and bruises, and was awarded general damages of Kshs.600,000/=, loss of earnings during hospitalisation of Kshs.96,000/= and special damages of Kshs.12,940/=, totalling Kshs.708,940/=. The appellant, the third party (owner of the vehicle), contended the general damages were excessive, that the judge ignored his authorities, and that the special damages and loss of income were unproved. The Court restated the duty of a first appellate court to re-evaluate the evidence, and the Kemfro Africa principles limiting interference with quantum to cases of an irrelevant factor taken into account, a relevant one left out, or a wholly erroneous estimate. It upheld the general damages award, finding the judge had correctly compared comparable injuries with comparable awards and factored inflation. However, it set aside both the loss-of-income award (Shs.3,200/= per day for 30 days) and the Shs.12,940/= for hired drivers, there being no evidence supporting either, reducing the final figure to Shs.600,000/=. The appeal partially succeeded and the appellant was awarded one third of 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 award of Kshs.600,000/= general damages was excessive
  2. 2.Whether the learned Judge failed to consider the appellant's submissions and authorities
  3. 3.Whether the award of damages for loss of income was properly proved
  4. 4.Whether the special damages were specifically proved

Key legal issues

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01

Assessment of general damages and appellate interference with quantum

Holding

The award of Kshs.600,000/= was upheld; the trial judge applied the correct approach of compensating comparable injuries comparably.

Reasoning

The Court rehearsed the Kemfro Africa principles: interference is justified only if the judge took an irrelevant factor into account, omitted a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate. Here the judge compared comparable authorities, considered inflation since the 1980s, and the injuries were serious, so the award stood.

p. 3
02

Proof of special damages (loss of income and driver-hiring costs)

Holding

Both the loss-of-income award (Shs.3,200/= per day x 30 days) and the Shs.12,940/= for hiring drivers were set aside for want of evidence.

Reasoning

Special damages must be pleaded and specifically proved. The trial judge awarded profit per day of Shs.3,200/= and costs of hired drivers without supporting evidence. As no documentary or other proof existed, the Court set aside both figures, reducing the total from Shs.708,940/= to Shs.600,000/=.

p. 4
03

Duty of a first appellate court on appeal

Holding

The Court restated its duty to re-evaluate the evidence and draw its own conclusions, with allowance for not having seen or heard the witnesses.

Reasoning

Citing Selle v Associated Motor Boat Co and Williamson Diamonds Ltd v Brown, the Court affirmed that a first appeal is by way of rehearing: it must re-evaluate and assess the evidence and reach its own conclusions, while remembering it neither saw nor heard the witnesses and making due allowance accordingly.

p. 3

Legal principles established

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  • Special damages must be both pleaded and specifically proved; an unsupported award must be set aside.
  • A first appellate court must re-evaluate and assess the evidence and reach its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • An appellate court may disturb a quantum of damages only where the trial judge took into account an irrelevant factor or left out a relevant one, or where the amount is so inordinately low or high that it is a wholly erroneous estimate of the damage.

Court orders

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  1. 1.Upheld the award of Kshs.600,000/= general damages for pain, suffering and loss of amenities
  2. 2.Set aside the award of Shs.3,200/= per day multiplied by 30 days for loss of income
  3. 3.Set aside the award of Shs.12,940/= special damages
  4. 4.Substituted a total damages figure of Shs.600,000/= for Shs.708,940/=
  5. 5.Awarded the appellant one third of the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
EO
majority
DA
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 73 of 1989
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment expressly proceeds 'being a first appeal'); no specific constitutional provision cited.

Relief refused

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Reduction of the award of general damages

The court was satisfied the judge took the correct approach and comparable injuries should receive comparable awards

p. 3

Costs

The appellant was awarded one third of the costs of the appeal: 'As the appellant has partially succeeded, we award him a third of the costs of this 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 view of the foregoing, this appeal partially succeeds in that the award of special damages is set aside leaving only Shs.600,000/= being the award for general damages for pain, suffering and loss of amenities. Hence, the final figure as regards damages will be Shs.600,000/= and not Shs.708,940/=. As the appellant has partially succeeded, we award him a third of the costs of this appeal. It is so ordered.
p. 4Disposition and final orders
As regards special damages, it is trite law that these must not only be pleaded but be specifically proved.
p. 3Proof of special damages
it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
p. 3Principles for disturbing quantum of damages
it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.
p. 3Comparability in assessment of general damages
being a first appeal, we are duty bound to re-evaluate the evidence, assess it and make our own conclusion remembering that we have neither seen nor heard the witnesses and due allowance must be made for that
p. 3Duty of first appellate court

Issues in the judgment

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minor

The judgment does not name which judge authored it; it is delivered as a single 'JUDGMENT OF THE COURT' signed by three Judges of Appeal.

minor

The transcribed copy of the trial judgment quotes 'Kshs.4000,000/=' which appears to be a typographical error for Kshs.400,000/= in the comparison with comparable awards.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fakir Mohammed v Joseph Mugambi Kiara & 2 others [2010] KECA 51 (KLR)", Case Analysis (2010). Civil Appeal 152 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/51/eng@2010-11-19

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