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Court of AppealPartially AllowedCivil Appeal No. 19 of 2014· [2014] KECA 437 (KLR)

Bayusuf Freighters Limited v Patrick Mbatha Kyengo [2014] KECA 437 (KLR)

Court of Appeal of Kenya
30 July 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,633 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a road-accident award from Kshs. 4.19 million to Kshs. 3.41 million by reducing the multiplier for lost earnings from 30 to 20 years.

What this practically means

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Executive summary

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The respondent, a turnboy/loader employed by the appellant, was seriously injured in a road accident on 2nd June 2010 when the appellant's lorry overturned at Kambiti area on the Kenol-Sagana road. He sustained a traumatic amputation of the left leg, fractures of the radius and right ulna, severe degloving injuries and lacerations. The High Court at Nyeri (Wakiaga, J.) found the appellant 100% liable and awarded Kshs. 4,188,560/=, comprising general damages of Kshs. 1,600,000/=, future medical expenses of Kshs. 250,000/= and loss of earning capacity of Kshs. 2,338,560/= calculated on a multiplier of 30 years and a multiplicand of 80% of the respondent's monthly salary. The appellant appealed on quantum only, there being no dispute on liability, contending that general damages should be reduced to Kshs. 900,000/= and that the multiplier should be 12 rather than 30 years. The Court of Appeal, sitting as a first appellate court, re-assessed the evidence and applied the established principle that an appellate court will not disturb a damages award unless it is inordinately high or low or rests on wrong principles. It declined to interfere with the general damages and future medical expenses awards but found the 30-year multiplier excessive compared to comparable decisions applying 20 years, and substituted a multiplier of 20 years, reducing loss of earning capacity to Kshs. 1,559,040/= and the total award to Kshs. 3,409,040/=. The appeal partially succeeded; the appellant was awarded half the costs of the appeal.

Key legal issues

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01

Interference with the trial court's award of general damages for pain and suffering

Holding

The award of Kshs. 1,600,000/= was reasonable and not disturbed, taking into account the nature of the injuries, the cost of living and the depreciation of the shilling

Reasoning

The court applied the Butt v Khan principle that an appellate court will not disturb a damages award unless it is inordinately high or low or based on wrong principles. Considering the severity of the injuries (traumatic amputation of the left leg, arm fractures and degloving injuries), inflation and the depreciation of the shilling, the trial judge's award fell within a reasonable range and did not warrant interference.

p. 3
02

The multiplier applied to loss of future earning capacity

Holding

A multiplier of 30 years was excessive; the appropriate multiplier for a 26-year-old earning Kshs. 8,121/= per month was 20 years, yielding Kshs. 6,496 x 12 x 20 = Kshs. 1,559,040/=

Reasoning

The court compared prior decisions in comparable cases: a 20-year multiplier for a deceased aged 26 and a 20-year multiplier for a man aged 29. Guided by the Shabani principle of uniformity in damages awards by reference to recent comparable awards, it concluded the trial judge's 30-year multiplier departed from precedent and reduced it to 20 years, retaining the multiplicand of 80% of salary.

p. 3
03

Duty of a first appellate court

Holding

A first appellate court must analyze and re-assess the evidence and reach its own conclusions, as stated in Selle v Associated Motor Boat Co.

Reasoning

The court framed its role as a first appeal, distinguishing it from a second appeal: it is not bound by the trial court's findings of fact and must independently evaluate the record. This framed the court's willingness to reassess quantum while still respecting the established restraint principles governing interference with damages awards.

p. 2

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect
  • Some degree of uniformity must be sought in the award of damages, the best guide being recent awards in comparable cases in the local courts
  • On a first appeal, the Court of Appeal has a duty to analyze and re-assess the evidence on record and reach its own conclusions

Court orders

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  1. 1.Appeal allowed in part on the multiplier applied to loss of future earnings
  2. 2.Award of damages for loss of future earnings set aside and substituted with Kshs. 1,559,040/=
  3. 3.Respondent awarded total damages of Kshs. 3,409,040/= (general damages Kshs. 1,600,000/=; future medical expenses Kshs. 250,000/=; loss of earning capacity Kshs. 1,559,040/=)
  4. 4.Appellant to have half of the costs of this appeal

Authorities

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Cases cited (8)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • George Kirianki Laichena -vs- Michael Mutwiri
    Civil Appeal No. 162 of 2011
  • H. West & Son Ltd –vs- Shephard
    [1964] AC 326
  • Butt –vs- Khan
    [1981] KLR 349
  • Mary Kerubo Mabuka -vs- Newton Mucheke & 3 others
    High Court Civil Suit No. 196 of 2003
  • Sera Dora Juma -vs- BAT
    (1978) KLR 40
  • Shabani -vs- City Council of Nairobi
    (1985) KLR 516
  • Bhogal -vs- Burbidge
    (1975) EA 375
On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 155 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment); the court proceeded as a first appellate court re-assessing evidence and quantum.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Bayusuf Freighters Limited v Patrick Mbatha Kyengo [2014] KECA 437 (KLR)", Case Analysis (2014). Civil Appeal No. 19 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/437/eng@2014-07-30

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