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Court of AppealAllowedCivil Appeal No. 180 of 2005· [2013] KECA 128 (KLR)

Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR)

Court of Appeal
8 November 2013
David Kenani MaragaD. K. MaragaKMK. M'inotiJMJ. Mohammed
3,183 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 ruled accident victims need not plead the exact mechanical cause, like a tyre burst, and awarded them damages.

What this practically means

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Executive summary

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The appellants, fare-paying passengers in motor vehicle registration number KZN 060 owned and driven by the respondent, sued for damages for personal injuries sustained in an accident on or around 5th November 1999 along the Mumias-Musanda road. The respondent admitted the accident occurred but denied negligence and called no evidence at trial. Angawa J dismissed the suit ex parte on 4th June 2003, holding that the evidence of a tyre burst departed from the pleaded particulars of negligence and that the injuries were not proved. The Court of Appeal allowed the appeal. On this first appeal, the Court re-evaluated the evidence and held that the appellants had pleaded their claim with sufficient particularity: pleadings must state material facts, not evidence, and the tyre burst was merely evidence from which excessive speed or driving without due care could be inferred. The Court further found the trial judge's treatment of the medical evidence contradictory; the respondent never controverted the medical reports and treatment notes, which were deemed admitted under the notice to admit documents, yet the judge virtually ignored all the injuries proved. The Court substituted judgment for each appellant with general damages of KShs.120,000/= with interest, having regard to the nature of the soft tissue injuries, comparable awards and inflation, and awarded the appellants the costs of both courts. The judgment affirms the appellate standard on first appeals, the object of pleadings, and the principles governing interference with damages awards.

Key legal issues

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01

Whether a plaintiff must specifically plead the mechanical cause of an accident, such as a tyre burst

Holding

No. A pleading must state material facts only, not evidence; a tyre burst is evidence from which negligent driving at excessive speed or without due care may be inferred. The appellants pleaded their claim with sufficient particularity.

Reasoning

The plaint pleaded negligent driving causing loss of control and overturning, with particulars of excessive speed and driving without due care. The tyre burst was merely evidence supporting those pleaded facts. Insisting on such specific pleading would be demanding the impossible, akin to requiring pleas of snapped tie-rods or jamming brakes. There was sufficient evidence from which the court could infer negligence.

p. 3
02

Whether the trial judge's contradictory treatment of the medical evidence warranted appellate interference

Holding

Yes. The learned judge's findings on injuries were contradictory and virtually ignored all the injuries proved by uncontroverted medical evidence and deemed-admitted documents.

Reasoning

The judge first found the second plaintiff's injuries unsupported, then that both plaintiffs sustained minor injuries, then that the medical report supported no injury at all, and finally awarded nothing for the second plaintiff. The respondent called no evidence and the treatment notes and doctor's evidence were uncontroverted; at the very least the pleaded injuries proved by the medical reports should have been considered.

p. 5
03

Assessment of general damages for soft tissue injuries

Holding

The Court awarded KShs.120,000/= as general damages for pain and suffering to each appellant, taking into account the nature of the injuries, comparable awards and inflation.

Reasoning

The comparable authorities were dated and involved more serious injuries. The appellants suffered mainly soft tissue injuries which healed fairly well leaving no permanent or residual disability. Since counsel did not address quantum, the Court applied established principles on comparable awards and inflation to fix the figure.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions while allowing for the fact that it did not see or hear the witnesses.
  • The function of pleadings is to give fair notice of the case to be met; a plaintiff need plead material facts only, not evidence, and the cause of an accident (such as a tyre burst) is evidence, not a matter requiring specific pleading.
  • An appellate court will not interfere with a trial court's award of general damages unless it is demonstrably wrong, based on a wrong principle, or so manifestly excessive or inadequate that a wrong principle or misapprehension of evidence may be inferred.
  • In assessing general damages, each case depends on its own facts, awards should not be excessive, comparable injuries should attract comparable awards, and inflation should be taken into account.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court set aside
  3. 3.Judgment entered for each appellant for KShs.120,000/= with interest
  4. 4.Costs of the High Court and of the Court of Appeal awarded to the appellants

Authorities

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Legislation

  • Civil Procedure RulesOrder XII Rules 2(1) and (3)

Cases cited (13)

  • Selle and Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Ramji Ratna and Company Limited v Wood Products (Kenya) Limited
    Civil Appeal No. 117 of 2001
  • Hanh v Singh
    (1985) KLR 716
  • Ephantus Mwangi and Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Esso Petroleum Company Limited v Southport Corporation
    (1956) AC 218
  • Uganda Breweries Ltd v Uganda Railways Corporation
    (2002) 2 EA 634
  • Pusha v Fleet Transport Co Ltd
    (1960) EA 1025
  • Caswell v Powell Duffryn Associated Collieries Ltd
    (1940) AC 152
  • Shabani v City Council of Nairobi
    (1985) KLR 516
  • Kiragari v Aya
    (1985) KLR 273
  • Jabane v Olenja
    (1986) KLR 1
  • Ali v Muhozozo
    CA. No. 9 of 1983 (Mombasa)
  • Cecilia W. Mwangi & Another v Ruth W. Mwangi
    CA No. 251 of 1996 (Nyeri)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 645 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act/Appellate Jurisdiction Act (not specifically stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR)", Case Analysis (2013). Civil Appeal No. 180 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/128/eng@2013-11-08

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