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Court of AppealPartially AllowedCivil Appeal No 9 of 1983

Rapheal Omolo v Republic [1983] KECA 14 (KLR)

Court of Appeal
22 July 1983
2,105 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 doubled a road accident victim's compensation because the judge ignored earlier similar awards and inflation when setting the amount.

What this practically means

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Executive summary

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The appellant, a girl of about eight, was knocked down by a motorcycle ridden by the first respondent as servant of the second respondent on September 4, 1979 in Mombasa, suffering severe cuts to the forehead and eye, abrasions and bruises, wounds on the right ankle and a fractured right leg. Judgment was entered against the second respondent in default of appearance, and after an ex parte hearing before Bhandari J she was awarded Kshs 900 special damages and Kshs 10,000 general damages. She appealed against quantum only. Kneller JA, delivering the principal judgment, held that the trial judge misread the facts of the one comparable case cited to him and was not referred to earlier Mombasa awards; awarding Kshs 10,000 in late 1982 without considering inflation was an error of principle rendering the award manifestly inadequate. Chesoni Ag JA, concurring separately, observed obiter that assessment of motor accident damages is hampered by the absence of well-maintained records of past awards, but that previous decisions remain of guidance. Potter JA concurred, declining to treat the residual forehead scar as compensable cosmetic injury absent supporting evidence. The court allowed the appeal, set aside the award of general damages and substituted Kshs 20,000, with costs of the appeal to the appellant. The judgment binds lower courts on the requirement that damages assessments take account of comparable awards and inflation, and confirms appellate readiness to interfere with awards that are manifestly inadequate or excessive.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge's award of general damages of Kshs 10,000 was manifestly inadequate
  2. 2.Whether failure to consider previous awards for similar injuries and the effect of inflation constitutes an error of principle justifying appellate interference
  3. 3.Whether the residual forehead scar should be treated as a cosmetic injury increasing the award

Key legal issues

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01

Error of principle in assessment of general damages

Holding

Failure to consider previous awards for similar injuries and the effect of inflation is an error of principle that justifies appellate interference with quantum.

Reasoning

The trial judge was referred to only one comparable Mombasa decision and misread its facts; he was not referred to earlier awards such as Sheridan J's Kshs 10,000 award in 1976. Awarding Kshs 10,000 in late 1982 without reference to inflation made the award so manifestly inadequate that it must have been based on an error of principle.

p. 3
02

Manifest inadequacy of the award and appellate substitution

Holding

The award of Kshs 10,000 general damages was manifestly inadequate and was increased to Kshs 20,000.

Reasoning

The appellant, then about eight years old, suffered severe cuts, abrasions, wounds and a fractured right leg, hospitalised for nine days and under treatment for two months, though she fully recovered with no permanent disability. Weighing the injuries against the degree of recovery and absence of later deterioration, all three judges agreed the award required doubling.

p. 4
03

Treatment of scars as cosmetic injury

Holding

A residual scar cannot be compensated as a cosmetic injury without evidence of permanent cosmetic disfigurement.

Reasoning

Potter JA rejected counsel's submission that the forehead scar should be valued as a cosmetic injury because the medical report referred only to abrasions, the wounds were dressed, and no photographs or other evidence of permanent cosmetic injury were produced.

p. 4

Legal principles established

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  • A trial court commits an error of principle in assessing general damages if it fails to take into account awards for similar injuries in previous cases and the effect of inflation.
  • The Court of Appeal will interfere with an award of general damages that is manifestly inadequate or manifestly excessive.
  • Previous decisions on comparable injuries are of guidance in assessing damages even though no two cases are identical.

Court orders

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  1. 1.Appeal allowed
  2. 2.Award of general damages of Kshs 10,000 set aside and substituted with an award of Kshs 20,000
  3. 3.Costs of the appeal awarded to the appellant
  4. 4.Direction granted that notice of appeal need not be served on the second respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Delivered the principal judgment. Found the trial judge's award of general damages manifestly inadequate because it failed to take into account comparable awards and the effect of inflation, an error of principle, and increased general damages to Kshs 20,000.

this award of general damages should be increased to Kshs 20,000 and the appeal allowed with costsp. 3
concurring

Wrote the judgment

Wrote separately agreeing the award was manifestly inadequate and should be set aside and substituted with Kshs 20,000; observed obiter on the difficulty of assessing damages in motor accident cases for lack of maintained records.

I would accordingly allow the appeal, set aside Bhandari J's award of general damages and substitute it with one of Kshs 20,000p. 4
concurring

Wrote the judgment

Agreed the appropriate award was Kshs 20,000 for pain and suffering, but declined to treat the residual forehead scar as a cosmetic injury for want of evidence, and recorded the direction under rule 76(1) dispensing with service on the second respondent.

I do not accept Mr Talati's submission that the residual scar to the forehead should be taken into account as a cosmetic injuryp. 4
On appeal from
High Court
Jurisdiction invoked
First appeal against quantum of damages; Court of Appeal Rules (cap 9 Sub Leg) rule 76(1) invoked for the direction on service

Relief refused

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Increase of damages on account of the residual forehead scar as a cosmetic injury

No photographs or other evidence of permanent cosmetic injury were produced; the medical report referred only to abrasions and the scar caused no functional disability

p. 4

Costs

The appeal allowed with costs; the costs of the appeal are awarded to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is an error in principle in determining the appropriate award of general damages, if the court's decision does not take into account awards for similar injuries in previous cases and the effect of inflation.
p. 1Error of principle in assessment of damages
The Court of Appeal will interfere with an award of general damages where it is manifestly inadequate.
p. 1Appellate interference with quantum
Assessment of damages in motor accident cases in this country still poses a great problem because there is hardly any well maintained record of what the courts have done in such cases in the past.
p. 1Obiter on comparability of damages awards
As Kneller JA and Chesoni Ag JA agree, 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.
p. 4Final orders and disposition

Issues in the judgment

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minor

The motorcycle registration number is given inconsistently within the judgment: KJS 944 in the first judgment and KJE 944 in Chesoni Ag JA's judgment.

minor

The appellant's eye injury is described inconsistently: the headnote and Chesoni Ag JA refer to the right eye, while the medical narrative refers to the upper part of her left eye, and the surgeon's report does not mention the eye at all.

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, "Rapheal Omolo v Republic [1983] KECA 14 (KLR)", Case Analysis (1983). Civil Appeal No 9 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/14/eng@1983-06-20

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