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Court of AppealPartially AllowedCivil Appeal No. 59 of 2010· [2017] KECA 691 (KLR)

Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR)

Court of Appeal of Kenya
3 March 2017
3,936 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 nearly doubled a matatu accident victim's damages, ruling lost income can be proven by oral evidence without books of account.

What this practically means

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Executive summary

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The Court of Appeal (Githinji, Karanja and ole Kantai, JJ.A.) allowed in part the appellant's appeal against the quantum of damages awarded by Ang'awa, J. in a road traffic accident suit. Liability and 90/10 apportionment were not contested. First, on general damages for pain, suffering and loss of amenities, the court restated the settled principle that an appellate court interferes only for misdirection, non-direction, or where the award is an erroneous estimate, and found that the trial judge ignored inflation and comparable awards - notably a five-year-old patella fracture award of Kshs.170,000 - and enhanced the award from Kshs.100,000 to Kshs.200,000. Second, the court held the Kshs.5,460 assessor's fees were strictly proved as special damages by the assessor's testimony, fee note and assessment report. Third, on loss of user of the written-off matatu, the court held that loss of use of a profit-earning chattel is a claim in general damages provable on a balance of probabilities, expressly declining to follow Ryce Motors v Elias Muroki insofar as it implied such claims must be strictly proved by documentary evidence, and preferring the line of authority including Wambua v Patel, Kimatu Mbuvi, Chinese Technical Team and Peter Njuguna Joseph permitting quantification on oral evidence in an informal economy. Finding the vehicle earned about Kshs.2,000 net per day and adopting six months as a reasonable mitigated loss-of-user period, it awarded Kshs.240,000. The High Court's quantum judgment was set aside and replaced with a combined total of Kshs.990,420, less 10% contributory negligence, net Kshs.891,378, with interest as ordered and costs to the appellant.

Key legal issues

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01

Interference with quantum of general damages for personal injuries

Holding

The trial judge took an erroneously low award by failing to consider inflation and comparable awards, ignoring a directly relevant patella-fracture award; the court raised the award from Kshs.100,000 to Kshs.200,000

Reasoning

The learned judge made no findings on the degree of pain and suffering or severity of injury, and wrongly refused to be guided by the Fredrick Ndeto Matheka award merely because it itemised injuries. Comparable awards made five years earlier (Kshs.170,000 and Kshs.275,000) were relevant guides to a conventional figure adjusted for the value of money at trial.

p. 3
02

Proof of special damages (assessor's fees)

Holding

The Kshs.5,460 assessor's fees claim was strictly proved by the assessor's evidence, fee note and assessment report and should have been wholly allowed

Reasoning

The claim was pleaded as special damages. The assessor testified to his charge of Kshs.4,500 and expenses of Kshs.960, and the fee note and assessment report accepted by the trial judge were produced. The trial judge's finding that the claim was not strictly proved was an error.

p. 3
03

Classification and proof of loss of user of an income-generating vehicle

Holding

Loss of use of a profit-earning chattel is a claim in general damages provable on a balance of probabilities; Ryce Motors' implication that such claims must be strictly proved by documentary evidence as special damages is inconsistent with prior decisions of the Court and was not followed

Reasoning

The court examined Halsbury's statement of the measure of damages for destroyed profit-earning chattels and the line of Kenyan authority (Wambua v Patel, Kimatu Mbuvi, Chinese Technical Team, Peter Njuguna Joseph) allowing quantification on oral and estimation evidence in the informal economy. It preferred those previous decisions to Ryce Motors, finding the latter ex facie inconsistent with the Court's own precedents.

p. 5
04

Quantification and mitigation of loss of user

Holding

The vehicle earned a net of approximately Kshs.2,000 per day, and six months was a reasonable period for computing loss of user, yielding Kshs.240,000

Reasoning

The appellant gave oral evidence of routes, trips and earnings; the absence of books of accounts did not defeat the claim. However, a full year's claim was unreasonable because a vehicle would periodically be grounded for maintenance, no reasons were given for a one-year period, and the appellant took no shown steps to mitigate while the court process ran its course.

p. 6

Legal principles established

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  • An appellate court interferes with a trial court's award of damages only for misdirection or non-direction, or where the award is so high or so low as to be an erroneous estimate
  • Loss of use of a profit-making chattel such as a lorry or matatu is a claim in general damages, provable on a balance of probabilities; documentary proof such as books of account is not indispensable and oral evidence may suffice
  • Awards for pain, suffering and loss of amenities must be consistent for comparable injuries and within the limits of decided cases, assessed by reference to the value of money at the date of trial
  • A wrongdoer is not relieved of liability merely because damages are difficult to estimate; the plaintiff may be accorded the benefit of every reasonable presumption as to the loss suffered
  • A plaintiff must take reasonable steps to mitigate loss of user of a destroyed chattel; there is no entitlement to wait until paid the pre-accident value of destroyed property

Court orders

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  1. 1.Appeal allowed with costs to the extent indicated
  2. 2.Judgment of the High Court on quantum of damages set aside and replaced with judgment for a combined total of Kshs.990,420
  3. 3.Special damages of Kshs.25,420 (medical/hospital costs Kshs.19,760; copy of records Kshs.200; assessor's fees Kshs.5,460)
  4. 4.Damages for pain, suffering and loss of amenities of Kshs.200,000
  5. 5.Loss of motor vehicle (net) of Kshs.525,000
  6. 6.Loss of user (profits) of Kshs.240,000 (Kshs.2,000 per day for 6 months, 20 days per month)
  7. 7.Less 10% contributory negligence of Kshs.99,042, net award Kshs.891,378
  8. 8.Special damages to earn interest from date of filing suit at court rates
  9. 9.General damages to carry interest at court rates from the date of judgment

Authorities

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Cases cited (16)

  • Kitavi v Coastal Bottlers Limited
    [1985] KLR 470
  • Kimatu Mbuvi t/a Mbuvi & Bros v Augustine Munyao Kioko
    [2006] eKLR
  • Fredrick Ndeto Matheka v Eastern Bus Services
    High Court Civil Case No. 5796 of 1993 (unreported)
  • Samuel Gathu Kamau v David Kaniu Gathungu & Another
    High Court Civil Suit No. 1932 of 1987 (unreported)
  • Sammy Waweru Njoka vs. Njenga Karume t/a Kiambu Tobacco Wholesalers
    High Court Civil Suit No. 3395 of 1993 (unreported)
  • Richard Karimi Macharia v. Ephantus Macharia Mwangi & Another
    High Court Civil Case No. 710 of 2000 (unreported)
  • Isana Magumba Kirambi v. John Kipngetich Koskei & 2 Others
    High Court Civil Case No. 5141 of 1991 (unreported)
  • Kigaragari v. Aya
    [1985] KLR 273
  • Gebosch Dredger v SS Edison
    [1933] AC 449
  • Moore & Another v Der
    [1971] 3 All ER 517
  • Ryce Motors Limited & Another v Elias Muroki
    Civil Appeal No. 119 of 1995 (Mombasa) [1996] eKLR
  • Peter Njuguna Joseph & Another v. Ann Moraa
    Civil Appeal No. 23 of 1991 (unreported)
  • Wambua vs. Patel & Another
    [1986] KLR 336
  • Chinese Technical Team for Kenya National Sports Complex & 2 others v. Chabari M'Ingaruni
    Court of Appeal Civil Appeal No. 293 of 1998 (unreported)
  • Sumner Limited Meru v. Moses Kithinji Nkanata
    [2006] eKLR
  • Jebrock Sugarcane Growers Co. Limited v. Jackson Chege Busi
    Civil Appeal No. 10 of 1991 (Kisumu) (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1015 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate framework (statutory appeal from the High Court; no specific constitutional provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR)", Case Analysis (2017). Civil Appeal No. 59 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/691/eng@2017-03-03

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