Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 102 of 2013· [2018] KECA 187 (KLR)

Leting v Express (K) Limited & another (Civil Appeal 40 of 2016) [2018] KECA 187 (KLR)

Court of Appeal
18 October 2018
RNR. N. NambuyeFSF. SichaleSKS. ole Kantai
2,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal restored an accident victim's full compensation, ruling judges cannot raise new issues or ignore recorded settlements on their own.

What this practically means

#

Executive summary

#
This was a second appeal arising from a road traffic accident on 18th April 2002 at Muhoroni junction on the Kericho-Kisumu road, in which the appellant suffered a degloving injury and compound fracture of the left tibia. Liability was settled by consent on 22nd May 2003 at 80% against the respondents and 20% against the appellant, and the trial magistrate (J.K. Ngeno, PM, judgment dated 31st August 2005) awarded general damages of Kshs 600,000 and special damages of Kshs 164,680 and Kshs 124,885. The High Court (Ang'awa, J, 11th February 2011) allowed the respondents' first appeal, reversing the special damages award for want of pleading and disallowing general damages because of a mis-description of the location of the injury. Allowing the appellant's second appeal, the Court of Appeal (Nambuye, Sichale and ole Kantai, JJA) held that the first appellate Judge erred in disregarding the recorded consent on liability, in introducing sua motu the unpleaded issue of the location of the injuries, and in disturbing the special damages award where the claim was both pleaded and strictly proved by receipts tendered without objection. Reiterating that a second appeal is confined to matters of law, the Court held that the failure to formally amend the pleadings to reflect proven figures lay with counsel and the trial court, and disallowing the claim would visit an injustice on an innocent party. The Court set aside the High Court judgment, restored the trial court's judgment, and awarded the appellant costs on appeal and in the two courts below.

Key legal issues

#
01

Effect of a consent judgment on liability

Holding

Once parties record a consent on liability, the first appellate court must respect it and cannot reopen apportionment.

Reasoning

The parties recorded a consent on 22nd May 2003 apportioning liability 80:20; the appeal before the High Court was confined to the three grounds on quantum pleaded and proof. The Judge was bound to determine the appeal within those grounds and could not disturb the consent, which had settled liability.

p. 3
02

Scope of a second appeal and first appellate court's mandate

Holding

A second appeal is confined to matters of law; the first appellate judge's introduction of an unpleaded issue (location of injuries) was erroneous.

Reasoning

The Court applied the settled second-appeal principles from Maina v Mugiria and related authorities. The Judge raised the mis-description of the injury location herself, though neither party raised or canvassed it, and used it as an additional reason to interfere with general damages - an error of law warranting interference.

p. 3
03

Pleading and proof of special damages

Holding

Special damages were both pleaded and strictly proved by receipts tendered without objection; failure to formally amend the pleadings lay with counsel and the court and should not defeat the claim.

Reasoning

Paragraph 7 of the plaint pleaded special damages with particulars; leave to amend was informally granted on 02/12/2004 but never utilized. The appellant tendered receipts and was cross-examined without objection. The trial magistrate's tabulations rested on those receipts, so both limbs of the Hahn v Singh principle were satisfied.

p. 4
04

Quantum of general damages

Holding

The trial magistrate's award of Kshs 600,000 for general damages was neither inordinately high nor low and was affirmed.

Reasoning

The Court found the award fell within a reasonable range compared to comparable awards cited for compound fractures of the tibia and fibula, and that the Judge's sole reason for interfering - the mis-description of injury location - was not raised by the parties and was a minor error not fatal to the claim.

p. 4

Legal principles established

#
  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Special damages must be specifically claimed and strictly proved; the degree of certainty and particularity depends on the circumstances.
  • A first appellate court must confine its determination to the grounds of appeal raised by the parties and may not introduce issues not canvassed before it.
  • Where receipts proving special damages were tendered without objection, disallowing the claim merely because the pleadings were not formally amended to match the proven figures would visit an injustice on an innocent party.

Court orders

#
  1. 1.Appeal allowed
  2. 2.High Court judgment dated 11th February 2011 set aside
  3. 3.Judgment of the trial court dated 31st August 2005 restored
  4. 4.Appellant awarded costs on appeal and in the two courts below

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rules 25, 27 and 32

Cases cited (12)

  • Denshire Muteti Wambua v Kenya Power & Lighting Company Limited
    [2013] eKLR
  • Mwangi Kiunjuri v Wangethi Mwangi & 2 others
    [2016] eKLR
  • Victoria Venzeni v A.A. Kawir Transporters and another
    [2009] eKLR
  • Veronica Mwongeli Kilanzo v Robert Karume
    [2003] eKLR
  • Abok Adere TA A.J Adere & Associates v John Patrick Machira TA Machira & Co. Advocates
    [2013] eKLR
  • Miriam Maghema Ali v Nyambu ta Sisera Store
    [1990] eKLR
  • Dakianga Distributors (K) Ltd v Kenya Seed Company Limited
    [2015] eKLR
  • Maina v Mugiria
    [1983] KLR 78
  • Kenya Breweries Ltd v Godfrey Odongo
    Civil Appeal No. 127 of 2007
  • Stanley N. Muriithi & Another v Bernard Munene Ithiga
    [2016] eKLR
  • Martin v Glywed Distributors Ltd (ta MBS Fastenings)
    1983 ICR 511
  • Hahn v Singh
    [1985] KLR 716
On appeal from
High Court
Kericho HCCA No. 44 of 2005
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act and Rules (appeal on matters of law only)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Leting v Express (K) Limited & another (Civil Appeal 40 of 2016) [2018] KECA 187 (KLR)", Case Analysis (2018). Civil Appeal No. 102 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/187/eng@2018-10-18

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