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Court of AppealPartially AllowedCivil Appeal No. 60 of 2004· [2013] KECA 528 (KLR)

Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] KECA 528 (KLR)

Court of Appeal of Kenya
21 June 2013
GKG. B. M. KariukiPKP. O. KiageKMK. Murgor
2,581 words in judgment
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The bottom line

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Kenya's Court of Appeal raised an injured worker's compensation from Ksh.100,000 to Ksh.1.5 million, ruling courts must assess damages on all evidence, not just poorly drafted pleadings.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi (G.B.M. Kariuki, Kiage and Murgor, JJ.A) contesting only the quantum of damages awarded to an artisan injured in August 1998 when a pole fell while he was laying overhead electric cables for Kenya Power & Lighting Co. Ltd. He was hospitalized for 77 days and suffered multiple fractures of both femurs and the left scaphoid, dislocation of the left elbow with radial head fracture, dislocation of the left lunate bone and scalp bruises. Liability was 100% against the respondent and was not contested. The High Court (Angawa, J) awarded only Ksh.100,000/= general damages on the view that injuries were not precisely pleaded, plus Ksh.40,000/= future medical care. The Court of Appeal held that because the parties had consented to production of documents detailing the injuries and the doctor's unchallenged evidence and medical report were before the trial court, the trial judge erred in confining damages to the poorly pleaded particulars; she omitted a relevant factor, failed to consider the cited authorities, and produced an award that was wholly erroneous and inordinately low. Applying the Kemfro Africa principles and the comparable-injuries approach, and surveying awards for similar multiple injuries, the Court allowed the appeal, set aside the High Court judgment, and entered judgment for the appellant in the sum of Ksh.1,540,000/= (Ksh.1,500,000/= general damages and Ksh.40,000/= special damages), with interest on general damages from the date of the appellate judgment and on special damages from filing of suit. The respondent was ordered to bear the costs of both the appeal and the High Court suit. No claim for loss of future earnings was allowed, it having been conceded as unpleaded.

Key legal issues

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01

Principles for appellate interference with quantum of damages

Holding

The Court applied the Kemfro Africa principles: interference is justified where the trial judge took into account an irrelevant factor or omitted a relevant one, or where the award is so inordinately low or high as to be a wholly erroneous estimate of the damage.

Reasoning

The Court restated the test adopted from the former Court of Appeal for Eastern Africa and applied in Arrow Car Ltd v Bimomo. It found the trial judge omitted the relevant factor of the oral and documentary evidence of the full extent of the injuries, produced by consent, and assessed damages only on the poorly pleaded particulars, producing an award so low as to be wholly erroneous.

p. 3
02

Effect of consent for production of documents on the pleading rule

Holding

Where parties consent to production of documents detailing injuries and the consent is recorded as a court order, the trial court must have regard to that evidence even if the plaint's particulars are deficient.

Reasoning

Although the plaint was poorly drafted and did not reflect the correct particulars of injuries, the consent recorded as an order of the court admitted the documents, and the doctor's unchallenged evidence and medical report were before the court. The trial judge's finding that the court was bound by the pleading ignored this evidence and was erroneous; there was no indication the respondent resiled from the consent.

p. 3
03

Judicial exercise of discretion in assessing general damages

Holding

The trial court's discretion in awarding damages must be exercised judicially, including consideration of authorities on comparable awards cited by counsel.

Reasoning

The trial judge considered none of the authorities cited by counsel to guide the assessment, so the award bore no consonance with decided cases. The Court surveyed comparable awards for multiple fractures and similar injuries (ranging roughly between Ksh.950,000 and Ksh.1,750,000) and concluded that Ksh.1.5 million was in tune with the trend of awards and a fair measure of compensation for the multiple injuries sustained.

p. 4
04

Loss of earnings as special damages

Holding

Loss of earnings must be specifically pleaded and proved as special damages; no award can be made on an unpleaded claim.

Reasoning

The respondent's counsel pointed out, and the Court agreed was correct, that loss of earnings is a claim in special damages which must be proved. Appellant's counsel confirmed no claim for loss of future earnings was pursued, and the Court recorded the concession, making no award under that head.

p. 3

Legal principles established

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  • An appellate court may interfere with a trial court's award 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.
  • The general method of assessing damages for personal injuries is that comparable injuries should be compensated by comparable awards, keeping in mind the correct level of awards in similar cases.
  • Where documentary evidence of injuries is produced by consent recorded as an order of the court, the trial judge errs by confining the assessment of damages to the particulars pleaded in the plaint, ignoring that evidence.
  • Loss of earnings is a claim in special damages and must be pleaded and proved.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Judgment of the High Court set aside and judgment entered for the appellant in the sum of Shs. 1,540,000/= (general damages Ksh.1,500,000/= plus special damages Ksh.40,000/=)
  3. 3.General damages to carry interest at court rates from the date of the Court of Appeal judgment
  4. 4.Special damages to carry interest at court rates from the date of filing the suit
  5. 5.Respondent to bear the costs of the appeal and of the suit in the High Court

Authorities

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Cases cited (9)

  • Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M.M Lubia and Another
    [1982-88] 1 KAR 777
  • Ilango v Manyoka
    [1961] EA 705
  • Lukenya Ranching and Farming Co-operatives Society Ltd v Kavoloto
    [1970] EA 414
  • Arrow Car Limited v Bimomo & 2 Others
    (2004) 2 KLR 101
  • Timo Kalevi Jappien & Another v Texcal House Service Station & Another
    Nairobi HCCC No.220 of 1977
  • Joseph Poko Ochieng' v Kenya Bus Services (MSA) Limited
    Mombasa H.C.C.C. No.705 of 1986
  • Jane Mulinge v Antony Maina Ndere & Others
    Nairobi H.C.C.C. No.5057 of 1992
  • Antony Mwangi v Martin Muiruri
    (208) eKLR
  • Joseph Suri Nyateng v H.P. Mashru
    (1999) eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 865 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal against the quantum of damages awarded by the High Court (statutory appellate jurisdiction over High Court civil decisions)

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, "Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] KECA 528 (KLR)", Case Analysis (2013). Civil Appeal No. 60 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/528/eng@2013-06-21

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