Anisa Ali v John Muhozozo & another [1983] KECA 3 (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 award of Kshs 10,000 general damages by the High Court was so manifestly inadequate as to justify appellate interference
- 2.Whether the residual forehead scar should be compensated as a cosmetic injury
Key legal issues
#Manifest inadequacy of general damages award
The award of Kshs 10,000 general damages in 1982 for an eight-year-old girl who sustained a fractured right leg, head wounds and scars, with full recovery and no permanent disability, was manifestly inadequate because the trial judge failed to consider the effect of inflation on comparable awards; it was increased to Kshs 20,000.
The court compared awards in Dedan Kamau, Athman Mbwana and Kitila Chengo. An award of Kshs 10,000 in May 1976 (Chengo) for a comparable single fracture with no permanent disability meant the same figure in late 1982 reflected no allowance for inflation, demonstrating an error of principle. Although the judge misread the pain history in Dedan Kamau, otherwise there was no error of fact, so only quantum was disturbed.
Residual scarring as cosmetic injury
The forehead scar was not compensated as a separate cosmetic injury because there was no evidence, such as photographs, of permanent cosmetic disfigurement.
Potter JA noted the medical report described abrasions to the forehead which were dressed; the scar the trial judge said might remain for a long time was not proved by photographic or other evidence to constitute permanent cosmetic injury, so counsel's submission that it be taken into account was rejected.
Ex parte assessment against absent first respondent
Where a defendant who has filed a defence is served with notice but does not attend the damages hearing, the case may properly proceed ex parte and the trial judge's acceptance of the plaintiff's evidence against the defendant's unsupported written defence was sound.
The first respondent entered appearance and filed a defence but neither attended the hearing nor was represented despite service of a hearing notice. The judge believed the appellant, her mother and the eyewitness, whose evidence corroborated the claim, and disbelieved the respondent's unsupported written defence, founding a finding of sole negligence.
Legal principles established
#- An appellate court will interfere with a trial judge's award of general damages where it is so manifestly inadequate or excessive as to demonstrate an error of principle, including failure to account for inflation.
- Previous awards of damages in comparable motor accident cases are guidance, no two cases being identical.
Court orders
#- 1.The appeal is allowed
- 2.The award of Kshs 10,000 general damages is set aside and substituted with an award of Kshs 20,000 general damages
- 3.Costs of the appeal are awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Reviewed the evidence of injuries and comparable awards, found the award of Kshs 10,000 general damages manifestly inadequate because the judge failed to account for inflation, and would increase general damages to Kshs 20,000 with costs of the appeal to the appellant.
this award in late 1982 in the circumstances of this case so manifestly inadequate it must have been based on an error of principle in determining the appropriate award of damages, namely, the effect of inflationp. 2
Wrote the judgment
Agreed the award was manifestly inadequate and should be set aside and substituted with Kshs 20,000 general damages, noting the difficulty of assessing damages in motor accident cases and the guidance of previous decisions.
I agree with Kneller JA that the award of Kshs 10,000 (£ 500) was in all the circumstances manifestly inadequate and there is need for this court to interfere.p. 3
Wrote the judgment
Recorded the informal application excusing service on the second respondent, agreed the appropriate award is Kshs 20,000, and declined to treat the forehead scar as a compensable cosmetic injury absent evidence of permanent cosmetic injury.
We have been shown no photographs or other evidence of permanent cosmetic injury.p. 3
- On appeal from
- High Court of Kenya (Mombasa)
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal against quantum of damages (statutory appeal; provision not stated in the judgment)
Relief refused
#Compensation for the forehead scar as a cosmetic injury
No evidence of permanent cosmetic injury was adduced
Costs
The costs of the appeal are awarded to the appellant ("the appeal allowed with costs").
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.
so manifestly inadequate it must have been based on an error of principle in determining the appropriate award of damages, namely, the effect of inflation which was not mentioned in his judgment
Indeed no one case is the same as another on all facts and circumstances but previous decisions are of guidance.
the appeal is allowed, the award of Kshs 10,000 is set aside and an award of Kshs 20,000 is substituted and the costs of the appeal are awarded to the appellant.
I would accordingly allow the appeal, set aside Bhandari J’s award of general damages and substitute it with one of Kshs 20,000.
We have been shown no photographs or other evidence of permanent cosmetic injury.
Issues in the judgment
#The registration number of the motorcycle is given inconsistently in the judgment: Kneller JA states KJS 944 while Chesoni Ag JA states KJE 944.
The appeal number of the present matter is not stated anywhere in the judgment, and judgment in default against the second respondent is recorded as having no minute in the High Court file.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anisa Ali v John Muhozozo & another [1983] KECA 3 (KLR)", Case Analysis (1983). Mombasa High Court Civil Appeal (as stated in judgment; number not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/3/eng@1983-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.