BB (A minor suing through his next friend and father GON)v Ragae Kamau Kanja [2019] KECA 1002 (KLR)
The bottom line
#Kenya's Court of Appeal restored a Kshs.500,000 award for an injured child but confirmed children can share blame in accidents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in apportioning contributory negligence at 25% against the minor appellant
- 2.Whether the High Court erred in reducing the general damages award from Kshs.500,000/= to Kshs.250,000/=
- 3.Whether the learned judge erred in entertaining the respondent's appeal when the record of appeal had not been filed and served within 90 days as ordered
- 4.Whether the learned judge erred in casting aspersions on the integrity of Dr. Moses Kinuthia without according him a hearing
- 5.Whether the courts below erred in failing to award damages for loss of future earning capacity
Key legal issues
#Contributory negligence of a child in a road traffic accident
No blanket rule exempts children from contributory negligence; the court adopted the Gough v Thorne test of whether the child is of an age to be expected to take precautions for his own safety, and upheld the 25% apportionment
The court reviewed Lord Denning's test in Gough v Thorne, precedents where children of five, eight-and-a-half, nine and ten years were held contributorily negligent, and held that each case turns on its own facts. The appellant cited authorities without laying a factual foundation absolving the minor, so the High Court's 25% apportionment stood.
Interference with the quantum of general damages on second appeal
The High Court's reduction to Kshs.250,000/= was set aside because the judge ignored the P3 Form, a relevant document in assessing the damages, and the original award of Kshs.500,000/= was restored
While assessment of general damages is a question of fact, the principle of assessment is law, namely that comparable injuries should attract comparable awards. The judge relied on the discounted medical report and failed to consider the P3 Form injuries as the trial magistrate had done, thereby leaving out a relevant factor justifying intervention.
Evidential weight of a medical report and challenge to a doctor's integrity
A medical report is expert opinion controvertible only by other expert opinion, but it does not bind the court; the judge's adverse findings on the report were justified by internal inconsistencies in the treatment records
The court reiterated that a medical report cannot be impeached from the bar, yet a report made three years after the accident by a doctor who never treated the patient carries less probative value than contemporaneous treatment records. The judge gave convincing reasons for doubting the report, so no separate hearing for the doctor was required, and the question of the doctor's integrity was not before the court.
Damages for loss of future earning capacity
The claim failed for want of evidence: a school report showing a drop in academic performance does not prove the drop was caused by the accident
Both lower courts found the appellant dropped out of school due to embarrassment about fits, a 'misguided notion of shame'. On second appeal, no scientific or empirical causal link between the accident and diminished earning capacity was demonstrated, and no evidence was led on the appellant's academic records, so the concurrent findings could not be disturbed.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and must not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- There is no hard and fast rule that a child cannot be held contributorily negligent; each case must be determined on its own merits, depending on the child's age and capacity to appreciate danger
- A medical report cannot be impeached from the bar; as expert opinion it can only be controverted by another expert opinion, but it does not bind the trial court, which must weigh it against all the other evidence on record
- An appellate court may disturb a damages award 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 as to be a wholly erroneous estimate of the damage
Court orders
#- 1.Set aside the sum of Kshs.250,000/= awarded as general damages by the High Court and substitute in its place the sum of Kshs.500,000/= as awarded by the trial magistrate
- 2.Confirm and uphold liability as apportioned by the High Court at 25% to 75%
- 3.Uphold the special damages awarded at Kshs.11,700/=
- 4.Net award for general damages of Kshs.375,000/= after the 25% contributory liability, plus special damages of Kshs.11,700/=, total Kshs.386,700/=
- 5.Interest on Kshs.386,700/= to run from 18th February 2008, the date of judgment by the Chief Magistrate's Court
- 6.Each party to bear his costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A No. 124 of 2008
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act, Chapter 21 Laws of Kenya (second appeal confined to matters of law)
Relief refused
#Setting aside the 25%:75% apportionment of liability
Each case must be determined on its own merits; no hard and fast rule that a child cannot be held contributorily negligent; appellant laid no factual foundation absolving the minor
Damages for loss of future earning capacity
No evidence of a causal link between the injuries and any loss of earning capacity; a drop in school performance is not proof it resulted from the accident
Impugning the learned judge's findings on Dr. Kinuthia's report / entertaining the respondent's appeal
The judge gave convincing reasons for not believing the expert; it was not necessary to call another expert's opinion; a medical report does not bind a trial court
Costs
This appeal being partially successful, each party is to bear his costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The final order of this Court is that we hereby vary the judgment of the High Court to the extent that we set aside the sum of Kshs.250,000/= awarded as general damages and substitute in its place an award of Kshs.500,000/= awarded by the trial magistrate.
This appeal being partially successful, each party is to bear his costs of the appeal.
This Court in a second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances.
We reiterate the position that a medical report cannot be impeached from the bar.
The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutwol v Koima Developers Limited (Environment and Land Case E040 of 2024) [2025] KEELC 5568 (KLR)[2025] KEELC 5568 (KLR)28 Jul 2025applied
- University of Nairobi v Arunga (Civil Appeal 149 of 2018) [2023] KECA 843 (KLR)[2023] KECA 843 (KLR)7 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "BB (A minor suing through his next friend and father GON)v Ragae Kamau Kanja [2019] KECA 1002 (KLR)", Case Analysis (2019). Civil Appeal No. 177 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1002/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.