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Court of AppealPartially AllowedCivil Appeal No. 133 of 2005· [2015] KECA 928 (KLR)

Paul N. Njoroge v Abdul Sabuni Sabonyo

Court of Appeal of Kenya
27 February 2015
PWP.N. WakiRNR.N. NambuyeSKS. Gatembu Kairu
4,642 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Gatembu Kairu, JJ.A) allowed in part an appeal confined to the assessment of damages in a 1997 road traffic accident in which the appellant, a police corporal, suffered multiple comminuted fractures of the right femur and shoulder blade. Liability at 100% against the respondent was not challenged. The court applied the settled principles from Kimatu Mbuvi and Butt v Khan that an appellate court interferes with damages only where the award is inordinately high or low, represents an erroneous estimate, or rests on wrong principles or misapprehended evidence. Finding that the trial judge misapprehended the nature and extent of the injuries, the court reassessed general damages at Kshs.500,000. On special damages, it held the claims were properly pleaded and that peremptorily rejecting unstamped receipts without an opportunity to pay duty and penalty was erroneous, following Diamond Trust Bank Kenya Ltd v Jaswinder Singh Enterprises; it awarded Kshs.303,957 for medical expenses after deducting Kshs.50,000 paid by the Government, and Kshs.76,300 for taxi transport as the only strictly proved transport claim. It held future medical expenses fall under general damages and need not be specifically pleaded, awarding Kshs.100,000. The claim for diminished earning capacity failed as the appellant remained employed until normal retirement. Total award: Kshs.980,257 with costs of the appeal. An explanatory note accounts for the delay in delivering the judgment.

Key legal issues

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01

Interference with general damages award

Holding

The award of Kshs.200,000 was inordinately low because the trial court misapprehended the nature and extent of the injuries; reassessed at Kshs.500,000

Reasoning

The court re-examined the medical reports of Dr. Wokabi and Dr. Hicks, noting multiple surgeries, metallic implants, shortened leg, stiff joints and prospective osteoarthritis. The trial court said nothing about the extent of pain, suffering and loss of amenities, so the figure was an entirely erroneous estimate warranting interference.

p. 6
02

Proof of special damages and stamp duty objection

Holding

Special damages must be specifically pleaded and strictly proved, but the amended plaint did plead them; rejection of receipts for non-compliance with the Stamp Duty Act without opportunity to pay duty and penalty was erroneous

Reasoning

The court found the trial court erred in fact in holding there was no specific pleading, and erred in law in peremptorily rejecting unstamped documents. Medical expenses were proved at Kshs.353,957 less Kshs.50,000 paid by Government; only Kshs.76,300 of transport was strictly proved.

p. 7
03

Future medical expenses

Holding

The claim, though pleaded generally, was supported by evidence and a reasonable sum of Kshs.100,000 was awarded

Reasoning

Neither doctor supported the trial court's finding that upper limb implants need not be removed; Dr. Hicks said professional opinion was divided and future surgery was possible subject to proper assessment and counseling. Fairness required an award for that eventuality.

p. 8
04

Diminished earning capacity

Holding

The claim fails where the claimant remained employed at the same level until normal retirement

Reasoning

The employer's letter anticipated retirement on health grounds and lost promotion, but in fact the appellant retired normally as a corporal. The court was satisfied the claim does not lie on the evidence.

p. 8

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
  • A document should not be held inadmissible solely for want of stamping without giving the party an opportunity to pay the stamp duty and penalty
  • A claim for future medical expenses is part of general damages and need not be specifically pleaded as special damage

Court orders

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  1. 1.General damages for pain, suffering and loss of amenities set aside and substituted with Kshs.500,000
  2. 2.Special damages set aside and substituted with an award of Kshs.380,257
  3. 3.Order dismissing the claim for future medical treatment set aside and substituted with an award of Kshs.100,000
  4. 4.Appeal against the claim for loss of earning capacity dismissed
  5. 5.Total sum of Kshs.980,257 awarded to the appellant together with costs of the appeal

Authorities

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Legislation

  • Stamp Duty ActCap 480, sections 19(3), 20, 21, 22, 31

Cases cited (17)

  • Pitty Gathigia Baaru & Another v. Kenya Bus Services Ltd & Another
    [2005] eKLR

    Comparable injuries attracting general damages of Kshs.900,000

  • Ruth Lillian Nyawir Okoth v. Philip Olago Odeny
    HCC 1186 of 1996 (ur)

    General damages of Kshs.950,000 for fracture of femur and related injuries

  • Omar Hassan & Another v. Rashid Salim & Another
    HCCC 2391 of 1995 (ur)

    Kshs.700,000 awarded for comminuted fracture of femur

  • Beatrice Wairimu Wandurua v. Dorman Ltd
    [2009] eKLR

    Kshs.550,000 for compound fractures; adopted as best guidance

  • Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v. Augustine Munyao Kioko
    [2006] eKLR; Civil Appeal No. 203 of 2001

    Principles for interfering with damages awards; future medical expenses as general damages

  • Butt v Khan
    [1981] KLR 349

    Appellate court will not disturb damages award unless erroneous estimate or wrong principles

  • Kitavi vs. Coastal Bottlers Ltd
    [1985] KLR 470

    Grounds for disturbing an award of damages

  • Chanan Singh v Chanan Singh & Handa
    [1955], 22 EACA 125

    Interference with damages awards

  • Mwanasokoni v Kenya Bus Services Ltd
    [1985] KLR

    Appellate caution in disturbing findings of fact

  • Peters v Sunday Posts Ltd
    (1958) EA 424

    Appellate court differing from trial judge's findings of fact

  • Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A
    [2007] eKLR

    Rejection of unstamped documents is erroneous

  • Diamond Trust Bank Kenya Ltd vs. Jaswinder Singh Enterprises
    CA No. 285/98 (ur)

    Opportunity to pay stamp duty and penalty before excluding unstamped documents

  • Suderji Nanji Ltd. -vs- Bhaloo
    (1958) EA 762

    Procedure for unstamped documents

  • Bagahat Ram -vs- Raven Chond
    (2) 1930) A.I.R Lah 854

    Opportunity to pay stamp duty and penalty

  • Sosphinaf Company Ltd & Another v. Daniel Nganga Kanyi
    CA No. 315 of 2001 (UR)

    Future medical treatment is part of general damages

  • Zakayo Chamwama Busakha v. Spice World Ltd
    HCCA No. 131 of 2003 (UR)

    Future medical expenses pleaded as general damages

  • Texcal House Service Station Ltd & Another v. Timo Kalevi Jappien & Another
    CA 134 of 1998 (UR)

    Future medication calculated on annuity basis with actuarial evidence (cited by respondent)

On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 1791 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited 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, "Paul N. Njoroge v Abdul Sabuni Sabonyo", Case Analysis (2015). Civil Appeal No. 133 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/928/eng@2015-02-27

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