Rapheal Omolo v Republic [1983] KECA 14 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge's award of general damages of Kshs 10,000 was manifestly inadequate
- 2.Whether failure to consider previous awards for similar injuries and the effect of inflation constitutes an error of principle justifying appellate interference
- 3.Whether the residual forehead scar should be treated as a cosmetic injury increasing the award
Key legal issues
#Error of principle in assessment of general damages
Failure to consider previous awards for similar injuries and the effect of inflation is an error of principle that justifies appellate interference with quantum.
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.
Manifest inadequacy of the award and appellate substitution
The award of Kshs 10,000 general damages was manifestly inadequate and was increased to Kshs 20,000.
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.
Treatment of scars as cosmetic injury
A residual scar cannot be compensated as a cosmetic injury without evidence of permanent cosmetic disfigurement.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Award of general damages of Kshs 10,000 set aside and substituted with an award of Kshs 20,000
- 3.Costs of the appeal awarded to the appellant
- 4.Direction granted that notice of appeal need not be served on the second respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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
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
#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
Costs
The appeal allowed with costs; the costs of the appeal are awarded to the appellant
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.
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.
The Court of Appeal will interfere with an award of general damages where it is manifestly inadequate.
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.