Ugenya Bus Services v Gachoki [1982] KECA 56 (KLR)
The bottom line
#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 trial judge erred in finding the appellant's driver solely liable for the collision and the plaintiff free of contributory negligence
- 2.Whether the award of Kshs 200,000 general damages was excessive and erroneous
- 3.Whether the judge erred in awarding special damages of Kshs 5,000 for a car alleged not to belong to the plaintiff
- 4.Whether the judge erred in increasing the award above the earlier ex parte judgment figure of Kshs 130,000
Key legal issues
#Liability and contributory negligence
The defendant's driver was solely responsible; the plaintiff, whose stationary car was struck from the rear while properly indicating a right turn, did not contribute to the accident
The trial judge disbelieved the defendant's sole witness, the conductor Onyango, whose evidence was contradictory, and accepted the eyewitness Wanjohi corroborated by the police abstract that the road was dry and the plaintiff's car stationary on its correct side. The defendant did not call the driver, the only person who could speak to the negligence particulars. The Court of Appeal agreed the plaintiff contributed in no way and the driver travelled at excessive speed.
Quantum of general damages
The award of Kshs 200,000 was not excessive; a judge may make his own assessment on the date of decision and inflation is properly taken into account
The ex parte judgment of Kshs 130,000 had been set aside, and the judge was entitled to reassess roughly five years later. The plaintiff, 28 years old, lost a leg, his employment as a field officer instructor, and his amenities of life. The court noted comparable awards and held the days of miserly awards gone.
Special damages for the damaged vehicle
The award of the agreed Kshs 5,000 special damages was proper; property had passed on delivery and the plaintiff suffered the loss
The appellant argued the car never belonged to the plaintiff. The court held property passed by delivery and, in any event, the plaintiff suffered the loss and would have to make it good to any other owner. The appeal on this ground also failed.
Legal principles established
#- A trial court is entitled to make its own assessment of general damages on the date of its decision, even where it had earlier expressed agreement with a different award
- An appellate court will not disturb an award of general damages merely because it would have assessed differently; the days of small and stingy awards are gone and inflation is a legitimate consideration
- Where a driver whose evidence is essential to a defendant's case on contributory negligence is not called, an adverse inference may be drawn
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- null
- Jurisdiction invoked
- First appellate appeal to the Court of Appeal under applicable appeal provisions (not expressly cited in the judgment)
Relief refused
#Reduction of the award of Kshs 200,000 general damages
The court considered the award not excessive for the plaintiff's serious injuries, pain and suffering and loss of amenities
Overturning the award of Kshs 5,000 special damages for the destroyed car
Property in the car had passed to the plaintiff on delivery and he suffered the loss
Costs
Appeal dismissed with costs (costs awarded to the respondent)
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.
I would dismiss the appeal with costs. As Potter, JA and Kneller AG JA agree it is so ordered.
He was entitled to make his own assessment, be it more or less, on the date of his decision.
I do not consider the award of Kshs 200,000 excessive for the plaintiff’s serious injuries, pain and suffering and loss of amenities.
That the plaintiff was hit at the rear by the defendant’s bus travelling at an excessive speed and the defendant’s driver was solely responsible for the accident.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ugenya Bus Services v Gachoki [1982] KECA 56 (KLR)", Case Analysis (1982). Civil Appeal No 66 of 1981. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/56/eng@1982-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.