Makube v Nyamuro [1983] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a teacher intentionally blinded a schoolboy, awarding Kshs 30,000, confirming children's evidence in civil cases needs no special corroboration.
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 misdirected himself in requiring corroboration of the evidence of the plaintiff and two pupil witnesses as children of tender years
- 2.Whether a Court of Appeal may interfere with the trial judge's findings of fact
- 3.Whether the injury was caused by an intentional assault and battery or by pure accident
- 4.Whether the failure to plead negligent trespass to the person was material
- 5.The quantum of general damages for loss of the sight of one eye
Key legal issues
#Whether the trial judge misdirected himself on the need for corroboration of the boys' evidence
Yes - the boys were not children of tender years and this was a civil, not criminal, case; requiring corroboration was a misdirection which would have produced a different finding on liability.
The record showed the plaintiff was about sixteen when he gave evidence and his classmates were of comparable ages, so no child of tender years gave evidence. Corroboration of children of tender years is a requirement of the criminal law. The judge treated the civil assault claim as if it were a criminal prosecution because criminal responsibility was mentioned in the pleadings. Had he directed himself correctly, he would have had three substantive fact witnesses plus supporting evidence and would inevitably have found for the plaintiff.
Whether the injury was caused by an intentional assault and battery
Yes - on the court's own evaluation, the only reasonable conclusion was that the injury resulted from an intentional act in the course of an assault and battery, proved on the balance of probabilities.
The defendant's account of a pure accident with a rope during a handiwork lesson was unsupported and had never been pleaded in the defence. The medical evidence showed considerable force. Discrepancies among pupil witnesses were unsurprising where events happen quickly before several witnesses. Once the misdirection on corroboration was removed, the plaintiff's consistent account was the more probable.
Whether the omission to plead negligent trespass to the person as an alternative cause of action was material
No - since the court found an intentional assault, the omission was immaterial, though the law permits both intentional and unintentional trespass, with the onus of proving negligence on the plaintiff where unintentional.
The court set out the distinction between assault and battery as species of trespass to the person, noting that intentional trespass does not require proof of negligence, whereas unintentional yet negligent trespass requires the plaintiff to plead and prove negligence. Because the court found the act intentional as pleaded, the plaintiff succeeded without the alternative pleading. The point was nonetheless considered potentially of assistance had the alternative course been taken.
Quantum of general damages for loss of the sight of one eye
By majority (Hancox Ag JA and Law JA), Kshs 30,000; Kneller Ag JA dissented and would have awarded Kshs 60,000.
The court surveyed Ugandan awards from 1961-1971 and the recent Kenyan award in Lubia and Lubia, noting that foreign awards are guides only because Kenyan economic conditions differ and the value of money has fallen. Cotran J's Kshs 60,000 award was distinguished on its facts. The majority did the best it could on the material, while Kneller Ag JA, drawing on the fuller comparative material and the severity of the injury, considered Kshs 60,000 appropriate.
Legal principles established
#- A Court of Appeal will not normally interfere with findings of fact by a trial court unless they are based on no evidence, on a misapprehension of the evidence, or the judge demonstrably acted on wrong principles.
- Evidence of a child of tender years requires corroboration as a matter of law only in criminal proceedings and only where the child's evidence is admitted unsworn; it does not apply in civil cases, and mere reference to criminal responsibility in pleadings does not convert a civil suit into one subject to that rule.
- Trespass to the person may be intentional or unintentional; if unintentional and merely accidental there is no liability, but if unintentional yet negligent the onus of proving negligence lies on the plaintiff, who must plead and particularise the facts constituting negligence.
- Common law liability for trespass to the person was strict, save where the harm was utterly without the defendant's fault.
Court orders
#- 1.Appeal allowed with costs in the Court of Appeal and in the High Court
- 2.The judgment and decree of Aganyanya Ag J set aside
- 3.Judgment and decree substituted awarding the plaintiff general damages of Kshs 30,000 for the tort of assault and battery
- 4.Damages to be paid to the plaintiff's father and next friend for the plaintiff's benefit, any balance to be paid to him on reaching the age of eighteen years
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Principal judgment. Held the trial judge misdirected himself in requiring corroboration of the evidence of the three boys, who were not children of tender years; on a correct direction he would have found for the plaintiff. Found the injury was inflicted by an intentional act amounting to assault and battery. Awarded general damages of Kshs 30,000 with costs here and below.
I would hold on the evidence in this case that the only reasonable conclusion is that this injury was inflicted as the result of an intentional act by the defendant in the course of an assault and battery.p. 4
Wrote the judgment
Agreed with Hancox Ag JA that absent the misdirection on corroboration the trial judge must have found in favour of the plaintiff. Considered the evidence discharged the onus of proving a wilful assault and battery. Concurred in the Kshs 30,000 award and in allowing the appeal with costs.
I agree that this appeal, must be allowed, with costs both in this court and in the High Court.p. 5
Wrote the judgment
Agreed on liability: the appellant proved a wilful assault and battery on the balance of probabilities. Dissented on quantum only, assessing general damages at Kshs 60,000 rather than Kshs 30,000, while accepting that his figure might still be on the low side. Agreed the appellant should have his costs here and below.
Weighing one thing with another and doing the best I can on the material before us I would assess the appropriate award of damages for this injury at Kshs 60,000 for the loss of sight in one eye, pain and suffering. I regret having to differ with the majority of the court.p. 7
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over a decree of the High Court (appeal against dismissal of a tort action)
Relief refused
#Damages of Kshs 60,000 as awarded by the Ugandan authority cited (Cotran J's award)
Distinguishable on its facts - the plaintiff there suffered unsightly deformity affecting earning power and marriage prospects; a majority of this court fixed damages at Kshs 30,000
Kneller Ag JA's proposed award of Kshs 60,000
Did not command a majority; the majority fixed general damages at Kshs 30,000
Costs
The appellant is entitled to his costs in the appeal and in the High Court.
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 hold on the evidence in this case that the only reasonable conclusion is that this injury was inflicted as the result of an intentional act by the defendant in the course of an assault and battery.
a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles
While as a matter of law the evidence of children of tender years in a criminal case would require corroboration, this was neither a criminal case, nor were the children of tender years.
trespass may be intentional or unintentional. If it is unintentional it may yet be negligent (as distinct from the tort of negligence) or it may be pure accident or misadventure.
I agree that this appeal, must be allowed, with costs both in this court and in the High Court. As Kneller and Hancox Ag JJA agree, it is so ordered. The judgment and decree of Aganyanya Ag J are set aside, and as Hancox Ag JA agrees, a judgment and decree awarding the plaintiff general damages of Kshs 30,000 substituted.
Issues in the judgment
#The judgment inconsistently records the pith of the disposition: the principal judgment awards Kshs 30,000, yet Kneller Ag JA's opinion refers to 'As Kneller and Hancox Ag JJA agree, it is so ordered' in the same passage which records setting aside the judgment below and substituting a Kshs 30,000 award, even though Kneller Ag JA dissented on quantum at Kshs 60,000. The operative substituted award of the majority (Kshs 30,000) is, however, clear from the closing passage.
The judgment spells the same name inconsistently ('Rusell Ag J' where 'Russell' appears intended) in the survey of Ugandan damages authorities.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- China Road & Bridge Corportation v Wambua & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 4340 (KLR)[2026] KEELC 4340 (KLR)14 Jul 2026
- Lumunge v China City Construction LimitedChina City Construction Limited & 2 others (Civil Appeal E007 of 2023) [2026] KECA 330 (KLR)[2026] KECA 330 (KLR)27 Feb 2026applied
- Mjanaheri Farm Liminted v China Road & Bridge Corporation & another (Civil Appeal E038 of 2022) [2025] KECA 771 (KLR)[2025] KECA 771 (KLR)9 May 2025applied
- Reinhard v Reinhard & Reinhard & 3 others (Civil Appeal E006 of 2023) [2025] KECA 691 (KLR)[2025] KECA 691 (KLR)11 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Makube v Nyamuro [1983] KECA 29 (KLR)", Case Analysis (1983). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/29/eng@1983-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.