Mariga v Musila [1984] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed injured people can claim for future lost earnings, and appellate courts rarely disturb damage awards unless the trial judge made a real legal error.
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 award for pain, suffering and loss of amenities of Kshs 600,000 was so inordinately high as to warrant interference on appeal
- 2.Whether damages for the 'lost years' could properly be awarded in Kenya, and whether Pickett v British Rail is binding under section 3(1) of the Judicature Act (cap 8)
- 3.Whether the trial judge misapplied Huskisson v Holmes in using a multiplier of 9 over the 13-year period 1981-1994
- 4.Whether damages for loss of income should have been awarded net of tax (ground 6)
- 5.Whether the trial judge's Bullock order on the successful second defendant's costs should have been a Sanderson order
- 6.Whether interest on the damages should have been varied to 12% in accordance with the Chief Justice's practice note
- 7.Whether the trial judge erred in his treatment of the respondent's pension (cross-appeal ground 3)
Key legal issues
#Applicability of Pickett v British Rail and the lost years doctrine in Kenya
Pickett v British Rail is not binding as statute (the Judicature Act caps received common law at 12 August 1897), but the lost years doctrine is nonetheless correctly part of Kenyan law and the award of Kshs 500,000 for the lost years was upheld.
Section 3(1) of the Judicature Act applies the substance of English common law as at 12 August 1897. Pickett post-dates that date, so it is not statutorily compelled. However, Kenyan courts develop their own common law, paying high persuasive regard to English decisions. The court found the lost years doctrine closer to the ordinary man's expectation and just, adopting it as part of Kenyan law and upholding the trial judge's award, including the deduction for living expenses and the advance lump sum discount.
Standard of appellate interference with quantum of damages
The court will not disturb an award merely because it would have assessed differently; the appellant failed to displace the Kshs 600,000 award for pain, suffering and loss of amenities because a majority found no error of principle.
Applying Butt v Khan and H West & Son v Shephard, the award must be inordinately high or low or proceed on wrong principle. Hancox JA would have reduced the award to Kshs 400,000 as manifestly too high, but Chesoni Ag JA found the award (30,000 sterling pounds) not grossly excessive given the impotency and permanent injuries, and Nyarangi Ag JA held the trial judge under-weighted the impotency, making the award if anything low. The majority therefore dismissed the appeal against this head.
Bullock versus Sanderson orders on costs
The trial judge's Bullock order (successful second defendant's costs payable by the plaintiff, recoverable from the unsuccessful defendant) was a proper exercise of discretion and was upheld; no principle compels a Sanderson order.
Costs are discretionary under section 27 of the Civil Procedure Act. As a passenger, the plaintiff faced a genuine dilemma as to whom to sue under order I rule 7, and there was no evidence either defendant induced him to sue the other. Nor was there prejudice: the second defendant was not a party to the appeal, and counsel had not asked for costs to be reserved for argument.
Award of loss of income net of tax
Head 1 of the award, stated gross with a direction of accountability to the Commissioner of Income Tax, was reduced to Kshs 153,692 net of tax and the direction to the Commissioner deleted.
Both counsel agreed the sums should have been awarded net of tax, since income that ordinarily attracts tax should yield a net award. The Commissioner was not a party to the appeal, so no direction could be made against him. The court accordingly reduced the items in head 1 and deleted the accountability direction.
Trial judge's use of a multiplier of 9 over the 13-year period 1981-1994
The court identified the multiplier of 9 as a misapprehension of Huskisson v Holmes - the judge should simply have awarded the net differential of Kshs 828,539 for the 13 years - but because there was no cross-appeal, the award under items V and VI was upheld.
Huskisson v Holmes related working-life figures to total life expectancy, whereas Mead J was dealing only with working life expectancy, the lost years being separately assessed as item VII. The error was identified, but in the absence of a cross-appeal and given the appellant's non-dispute of items V and VI, the court upheld that part of the award.
Legal principles established
#- English common law received in Kenya is the common law in force on 12 August 1897; later English decisions are of high persuasive authority only and Kenya develops its own common law.
- The doctrine of the lost years forms part of Kenyan law and a living plaintiff whose earning capacity is diminished by negligence is entitled to compensation for the lost years.
- An appellate court may interfere with an award of damages only where it is inordinately high or low as to be an entirely erroneous estimate, or where the judge proceeded on wrong principles or misapprehended the evidence in some material respect.
- Damages for loss of income should in general be awarded net of tax where such income would ordinarily attract tax.
- Costs, including the choice between a Bullock and a Sanderson order, are in the discretion of the court under section 27 of the Civil Procedure Act, and an appellate court will not interfere unless the discretion has not been judicially exercised.
Court orders
#- 1.Main appeal dismissed on grounds 2, 3, 5 and 7
- 2.The tax-affected items (head 1) reduced to Kshs 153,692 net of tax, and the direction that the respondent be accountable to the Commissioner of Income Tax deleted
- 3.Main appeal dismissed with costs (the majority upholding the award for pain, suffering and loss of amenities)
- 4.Cross-appeal dismissed with costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Lead judgment. Would have upheld items V and VI despite the trial judge's erroneous multiplier of 9 (no cross-appeal); upheld the lost-years award of Kshs 500,000, holding Pickett v British Rail persuasive but not binding under section 3(1) of the Judicature Act; would have reduced the award for pain, suffering and loss of amenities from Kshs 600,000 to Kshs 400,000; upheld the Bullock order on costs and refused to vary the interest rate; would reduce the tax-affected items to Kshs 153,692 net of tax.
I consider that the learned judge’s award for pain, suffering and loss of amenities in this case was manifestly too high I would reduce that item from Kshs 600,000 to Kshs 400,000p. 8
Wrote the judgment
Separate judgment. Would dismiss the whole of the main appeal, including the award of Kshs 600,000 for pain, suffering and loss of amenities, holding the judge erred in no principle; agreed with Hancox JA on the lost years and on the Bullock order and cross-appeal.
I am unable to say that the learned judge who, in my opinion, gave the matter most careful consideration, erred in principle or awarded a sum (ie 30,000 Sterling pounds) so grossly excessive as to justify interference by this court.p. 11
Wrote the judgment
Separate judgment agreeing with Hancox JA on the lost years and costs, but holding that the trial judge gave insufficient weight to the respondent's impotency, so the award of Kshs 600,000 for pain, suffering and loss of amenities was, if anything, on the low side and should not be altered.
The award of Kshs 600,000 for pain, suffering and loss of amenities made without giving due weight to the state of impotency is in my view on the lower side.p. 13
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal in its appellate jurisdiction (specific constitutional/statutory basis not stated in the judgment)
Relief refused
#Reduction of the award for pain, suffering and loss of amenities from Kshs 600,000 to Kshs 400,000
Hancox JA alone would have reduced it; Chesoni and Nyarangi Ag JJA upheld the award, so the majority dismissed the appeal against this item
Substitution of a Sanderson order for the Bullock order on the second defendant's costs
Costs are discretionary under section 27 of the Civil Procedure Act; no error in the exercise of discretion was shown and there was a genuine dilemma as to whom to sue
Variation of the interest rate on damages to 12%
The practice note was a circular, not a direction, and was issued over four months after the judgment; the judge's discretion was unaffected
Reduction of items V and VI (loss of earnings 1981-1994) despite the erroneous multiplier of 9
No cross-appeal on this ground and the appellant did not dispute the items
Costs
Main appeal dismissed with costs; cross-appeal dismissed with costs.
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.
In the result I would dismiss the cross appeal with costs. I would also dismiss the main appeal save as to ground 4 which relates to the award for pain, suffering and loss of amenities
since, however, the majority of the court is, again as I have said in favour of upholding this item, and of dismissing the whole appeal, it is ordered that it be dismissed with costs.
As regards ground 6 it is ordered that this item be reduced to Kshs 153,692, net of tax, and we delete the direction that the respondent be accountable to the Commissioner of Income Tax
For the reasons given, I would dismiss the whole of the main appeal with costs and so would I too dismiss the cross-appeal with costs.
Aside from that I am in no doubt that the doctrine of the lost years, whatever alarm the legislature in England may have felt about it when they passed the 1982 Act, should, in the case of a living plaintiff at least, form part of the law which these courts should apply.
But it must nonetheless not be lost sight of that it is the Kenya common law that is being developed and that there is no compulsion to apply present English decisions.
It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
Issues in the judgment
#The judgment records the trial judge's award for pain, suffering and loss of amenities as Kshs 600,000 while elsewhere Chesoni Ag JA describes the same award as 30,000 sterling pounds; Hancox JA also refers to the grand total including possible arithmetical inaccuracies.
The judgment states the total net loss for 1981 to 1994 as Kshs 828,539 but later states the multiplier of 9 produced 'Kshs 573,593' where the judge's summary figure was Kshs 573,597 - an internal discrepancy of Kshs 4.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mombasa Maize Millers (KSM) Limited v Catholic Medical Mission Board (Civil Appeal 134 of 2020) [2026] KECA 777 (KLR)[2026] KECA 777 (KLR)24 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mariga v Musila [1984] KECA 59 (KLR)", Case Analysis (1984). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/59/eng@1984-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.