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Court of AppealPartially AllowedCivil Appeal No 9 of 1983

ANISA ALI (suing through her mother FATUMA ABDULLA SALIM as next friend) vs JOHN MUHOZOZO & ANOTHER [1983] KECA 109 (KLR)

Court of Appeal of Kenya
22 July 1983
KNKnellerCHChesoniPOPotter
1,753 words in judgment
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The bottom line

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Kenya's Court of Appeal doubled a child's injury compensation, ruling judges must account for inflation when comparing past injury awards.

What this practically means

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Executive summary

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This was an appeal against the quantum of damages awarded by Bhandari J of the High Court at Mombasa on 6 September 1982 in Civil Case No 726 of 1980. The appellant, a girl of about eight, was knocked down by a motorcycle ridden by the first respondent, the servant or agent of the second respondent, and suffered a fractured right leg, forehead and eye cuts, abrasions and an ankle wound. Judgment was entered against the second respondent in default of appearance; the first respondent, though served with a hearing notice on damages, did not attend, and the case proceeded ex parte. The trial judge awarded Kshs 10,000 general damages and Kshs 900 special damages. Kneller JA, writing the lead judgment, reviewed comparable Mombasa awards, notably Sheridan J's 1976 award of Kshs 10,000 in Kitila Chengo to which the trial judge had not been referred. He held the 1982 award so manifestly inadequate that it must have rested on an error of principle - the failure to consider inflation - and substituted Kshs 20,000. Chesoni Ag JA, in a separate judgment, agreed the award was manifestly inadequate and would substitute the same figure. Kneller JA's second judgment recorded that counsel's informal application under rule 76(1) and its proviso to dispense with service on the second respondent had been granted, and that the forehead scar could not be compensated as a cosmetic injury absent supporting evidence. The appeal was allowed with costs to the appellant. Potter JA sat on the bench but wrote no separate opinion.

Questions the Court framed

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

  1. 1.Whether the High Court award of Kshs 10,000 general damages for personal injuries to a child was so manifestly inadequate as to justify appellate interference
  2. 2.Whether the effect of inflation on comparable awards amounted to an error of principle in the assessment of damages
  3. 3.Whether the residual forehead scar should attract an additional award as a cosmetic injury
  4. 4.Whether notice of the appeal needed to be served on the second respondent who never entered appearance

Key legal issues

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01

Manifest inadequacy of damages award as ground of appeal

Holding

The award of Kshs 10,000 general damages was manifestly inadequate and was set aside and substituted with Kshs 20,000.

Reasoning

The trial judge was not referred to Sheridan J's 1976 award of Kshs 10,000 in Chengo, an adult case with comparable single-fracture injuries and no permanent disability. An award of the same nominal figure six years later, without any mention of inflation, demonstrated an error of principle and justified substitution with double the sum.

p. 3
02

Cosmetic scarring and quantum

Holding

The residual forehead scar was not compensated as a separate cosmetic injury absent evidence of permanent cosmetic disfigurement.

Reasoning

The medical report referred only to dressed abrasions; although the trial judge noted the scar might persist, no photographs or other evidence of permanent cosmetic injury were produced, so the court declined counsel's invitation to increase the award on that account.

p. 4

Legal principles established

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  • An appellate court may interfere with a trial judge's award of general damages where the award is manifestly inadequate and was founded on an error of principle, such as ignoring the effect of inflation on comparable awards.
  • Comparable decisions on damages are of guidance even though no two cases are identical in facts and circumstances.

Court orders

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  1. 1.Direction granted that notice of the appeal need not be served on the second respondent
  2. 2.Appeal allowed
  3. 3.Award of Kshs 10,000 general damages set aside and Kshs 20,000 substituted
  4. 4.Special damages of Kshs 900 unaffected
  5. 5.Costs of the appeal awarded to the appellant

The bench

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

KN
majority

Wrote the judgment

Wrote the lead judgment: recounted the accident and injuries, reviewed comparable awards including Chengo, held the High Court award of Kshs 10,000 general damages manifestly inadequate because it ignored inflation, and substituted Kshs 20,000 with costs to the appellant.

Accordingly in my judgment, this award of general damages should be increased to Kshs 20,000 and the appeal allowed with costs.p. 3
CH
ChesoniAg JA
concurring

Wrote the judgment

In a separate judgment agreed that the award of Kshs 10,000 was manifestly inadequate, would set aside the general damages award and substitute Kshs 20,000, and agreed with Kneller JA's costs order.

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
On appeal from
High Court of Kenya at Mombasa
Civil Case No 726 of 1980
Jurisdiction invoked
First appeal to the Court of Appeal against quantum of damages (High Court, Mombasa); procedural direction sought under rule 76(1) of the rules of this Court and its proviso

Relief refused

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Additional award for the forehead scar as a cosmetic injury

No photographs or other evidence of permanent cosmetic injury were shown to the court

p. 4

Costs

Costs of the appeal 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.

Accordingly in my judgment, this award of general damages should be increased to Kshs 20,000 and the appeal allowed with costs.
p. 3disposition - substitution of damages award
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
Assessment of damages in motor accident cases in this country still poses a great problem because these is hardly any well maintained record of what the courts have done in such cases in the past.
p. 3difficulty of assessing personal injury damages
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 inflation which was not mentioned in his judgment.
p. 3error of principle - inflation in damages

Issues in the judgment

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minor

The motorcycle registration number is inconsistent between the two judgments in the same judgment

minor

Typographical error in Chesoni Ag JA's judgment rendering the damages figure unclear

minor

Misspelling in Chesoni Ag JA's judgment

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, "ANISA ALI (suing through her mother FATUMA ABDULLA SALIM as next friend) vs JOHN MUHOZOZO & ANOTHER [1983] KECA 109 (KLR)", Case Analysis (1983). Civil Appeal No 9 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/109/eng@1983-07-22

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