Tayab v Kinanu [1983] KECA 23 (KLR)
The bottom line
#Kenya's Court of Appeal cut a child's road accident award from Kshs 750,000 to Kshs 270,000, ruling that even a nine-year-old child can share blame for a road accident.
What this practically means
#Executive summary
#Key legal issues
#Contributory negligence of a child of tender years
A child of nine or ten with developed road sense who fails to see an approaching car on a straight road in broad daylight is blameworthy and contributorily negligent to the extent of 10%, following the precedent in Vinod's case.
The court distinguished between Madan JA's dictum that a person under ten cannot NORMALLY be guilty of contributory negligence and an absolute rule; noted Clerk & Lindsell that there is no age below which contributory negligence is legally impossible; applied the Gough v Thorne test of capacity and blameworthiness; and, given the trial judge's express finding that the child had the requisite road sense, held her failure to see the car blameworthy, fixing liability at 10% per the Vinod precedent.
Negligence of the driver despite absence of excessive speed
The finding of excessive speed was set aside, but the driver was nonetheless negligent in failing to keep a proper look-out, as she should have seen the child at the roadside and avoided or mitigated the impact.
The brake-mark evidence, road conditions and accepted stopping-distance tables showed a speed of no more than 20 mph, which was not unreasonable even near schools. However, on the finding that the child paused before crossing, the driver, with a clear field of vision and knowledge of schools in the vicinity, ought to have seen her in time to slow down or take avoiding action; failure to do so constituted negligence.
Quantum of general damages for post-traumatic epilepsy
The award of Kshs 750,000 was manifestly excessive; the correct award on total liability, for a second-category controllable epilepsy case, was Kshs 300,000, reduced to Kshs 270,000 for contributory negligence.
Applying Lawton LJ's three categories of epilepsy cases in Burke v Woolley and Maughan, the plaintiff fell within the second (drug-controllable) category. Comparable awards (Burke, Jones v Griffith) adjusted for Kenyan conditions and inflation pointed to a range of £13,000–£16,000; the trial award was more than twice the English ceiling for even the third category and could not stand. Foreign awards must be applied with caution having regard to Kenyan conditions, though the cost of drugs and medical care in Kenya may justify some weighting.
Directions for disposition of an infant's damages
The trial judge should have given directions for the disposition of the infant's damages; the balance was ordered into a controlled interest-bearing account.
As the plaintiff was an infant, the trial judge ought to have given directions on disposal of the award. Since a substantial sum had already been paid to the next friend who had incurred maintenance and litigation expenses, the court declined to interfere with that payment but ordered the balance into an account operated jointly by the Registrar of the High Court and the next friend, with payments out limited to accrued interest and the capital vesting in the plaintiff absolutely at eighteen.
Legal principles established
#- An appellate court will be slow to interfere with a trial judge's findings of fact based on credibility and demeanour.
- A child is guilty of contributory negligence only if of an age to be expected to take precautions for his or her own safety and if blameworthy.
- There is no age below which, as a matter of law, a child cannot be guilty of contributory negligence.
- Awards by foreign courts do not necessarily represent the standards which should prevail in Kenya.
- Comparable injuries should so far as possible be compensated by comparable awards, assessed with moderation.
Court orders
#- 1.The appeal be allowed with costs
- 2.The judgment and decree appealed from be amended by substituting Kshs 270,000 as general damages for the Kshs 750,000 awarded by Nyarangi J
- 3.The plaintiff to have the costs of the suit in the High Court, with leave to the defendant to have the bill retaxed in light of the substituted award
- 4.The balance of the general damages be paid into an interest-bearing bank or trust account in the name of the plaintiff, operated jointly by the Registrar of the High Court and the next friend, payments out limited to accruing interest, and the sum to become the plaintiff's absolute property on attaining eighteen years
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly recited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tayab v Kinanu [1983] KECA 23 (KLR)", Case Analysis (1983). Court of Appeal, Nairobi, Civil Appeal (judgment dated 30 March 1983). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/23/eng@1983-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.