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Court of AppealPartially Allowed

Shabani v City Council of Nairobi (Civil Appeal 52 of 1984) [1985] KECA 48 (KLR)

Court of Appeal of Kenya
6 March 1985
7,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal more than doubled a boy's injury compensation, ruling the original award was far too low and setting rules on how damages are assessed.

What this practically means

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Executive summary

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The appellant, a boy aged nearly eight and a half, was struck by a City Council lorry in Nairobi in June 1980 and suffered permanent disabling injuries to his left arm and elbow. The High Court (Aluoch J) found the respondents wholly liable and awarded a global sum of Shs 150,000 general damages plus special damages. The appeal challenged quantum alone. The Court of Appeal, per Hancox JA and Nyarangi JA, restated the Butt v Khan test: an appellate court interferes only where the award is inordinately high or low as to be an entirely erroneous estimate, or where the judge proceeded on wrong principles or misapprehended the evidence. Comparing local awards in Mativo Mutuya, Opuka, and Isabella Wanjiru Karangu, tempered for inflation and Kenyan conditions, the majority held the award manifestly too low and substituted Shs 350,000, inclusive of an element for loss of future earning capacity. The court held a modest award for a child's lost earning capacity is permissible only on some evidence, and deprecated judicial observation substituting for testimony, though here the judge's own courtroom observation of the arm could partly found the finding. It also endorsed tempering English comparators to local conditions and treating foreign awards as a guide only, while affirming that inflation may properly be considered. Platt Ag JA, while agreeing the appeal should be allowed, would have awarded only Kshs 275,000, a partial dissent. Final orders provided that the Kshs 350,000 be paid into an interest-bearing account jointly operated by the Registrar of the High Court and the next friend, with limited withdrawals for expenses and absolute vesting in the plaintiff at 18. The appeal was allowed with costs.

Questions the Court framed

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

  1. 1.Whether the award of Shs 150,000 general damages was manifestly so low as to be a wholly erroneous estimate warranting appellate interference
  2. 2.Whether an award for loss of future earnings or loss of future earning capacity may be made for a child, and on what evidential basis
  3. 3.Whether awards of general damages should be constrained by local Kenyan conditions and by inflation when compared with foreign authorities
  4. 4.Whether the cost of a future operation should be awarded separately

Key legal issues

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01

Test for appellate interference with quantum of damages

Holding

The Court applies the Butt v Khan test: interference only where the award is inordinately high or low, based on wrong principles or misapprehended evidence. Here the award was manifestly too low.

Reasoning

The court reiterated that assessment of damages is a matter of opinion, judgment and experience, and that an appellate tribunal does not dismiss an award as wrong merely because it would have assessed differently. However, having regard to comparable local awards for severe arm injuries to a young child, the Shs 150,000 figure was so far below the proper range that it constituted a wholly erroneous estimate, justifying substitution with Shs 350,000.

p. 1
02

Loss of future earning capacity for an infant plaintiff

Holding

A court may make a modest award for loss of future earning capacity for a child, but only where there is some evidence; the absence of testimony does not relieve the claimant from proving damage, though judicial observation of the plaintiff may partly supply the basis.

Reasoning

Citing Bonham-Carter v Hyde Park Hotel, the court stressed plaintiffs must prove their damage. While O'Connor LJ's view that facts may speak for themselves was not accepted generally, the trial judge's direct observation of the boy's useless arm, together with medical evidence of disability, could found a finding of lost earning capacity. The court deprecated replacing testimony with judicial observation but treated the trial judge's figure as including that head.

p. 3
03

Comparison with foreign awards and local conditions

Holding

Kenyan courts should generally have regard to awards in the same or a neighbouring jurisdiction with similar conditions; English awards are useful as a guide only and must be tempered to Kenyan conditions.

Reasoning

Following Lim Poh Choo and Chan Wai Tong, the court accepted that awards must not get out of line, that large awards pass costs to the public and raise insurance premiums, and that Kenya's lower per capita income justifies tempering English comparators. Nonetheless, fair and just compensation remains the duty, and inflation in the Shilling and Pound may properly be factored in when comparing awards.

p. 4
04

Global sum versus itemisation

Holding

Itemisation of an award is more correct in principle than a global sum, and Platt Ag JA would have separated the future operation costs, but the majority accepted the Shs 350,000 figure inclusive of earning capacity.

Reasoning

Hancox JA acknowledged that itemising an award is preferable so far as possible, yet adopted the global figure. Platt Ag JA, in partial dissent, insisted it is unwise to deal in global sums where separate parts can be indicated, taking the lowest proved figure of Kshs 20,000 for the operation plus Kshs 5,000 for its pain and suffering.

p. 2

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence.
  • A modest award for loss of future earning capacity may be made for a child plaintiff provided there is some evidence of the loss.
  • Foreign awards of damages are helpful only as a guide; awards must reflect Kenyan conditions such as wages, rents and cost of living.
  • It is proper for a court to take inflation into account when comparing other cases in making an award of damages.
  • Loss of earning capacity should always be specifically pleaded.

Court orders

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  1. 1.The appeal is allowed with costs
  2. 2.The order of the High Court awarding Shs 150,000 general damages is substituted with an award of Shs 350,000, which includes the element of loss of earning capacity
  3. 3.The whole of Kshs 350,000 general damages be paid into an interest bearing account in the name of the plaintiff with the Standard Bank, Barclays Bank, Kenya Commercial Bank or National Bank of Kenya, operated jointly by the Registrar of the High Court and the next friend
  4. 4.Liberty to withdraw on application up to a total of Kshs 50,000 for necessary expenses, subject to the Registrar being satisfied by medical reports, accounts and receipts
  5. 5.Income from the account may be paid out to the next friend for the infant's maintenance, medical expenses and treatment
  6. 6.On attaining 18 years the capital sum standing to the credit of the account shall become the property of the plaintiff absolutely

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Reviewed the test for appellate interference with damages, held the award of Shs 150,000 was a wholly erroneous estimate and manifestly too low, and agreed general damages should be increased to Shs 350,000 inclusive of an element for loss of earning capacity, provided there is some evidence thereof; also discussed the need for awards comparable to Kenyan conditions and the relevance of inflation.

she arrived at a figure for damages that was a wholly erroneous estimate and was manifestly too lowp. 2
majority

Wrote the judgment

Reviewed comparable local and English awards, found the trial judge's award must be interfered with, and held Shs 350,000 for general damages to be about adequate, agreeing with Hancox JA that the figure should include an element of loss of earning capacity; noted special damages of Shs 8,697 as agreed.

the award made by the trial judge must be interfered with and that in the circumstances an award of Shs 350,000 for general damages is about adequatep. 8
HP
H.G PlattAG. JUDGE OF APPEAL
partial dissent

Wrote the judgment

Agreed the appeal should be allowed and the trial award interfered with, but considered the proposed figure too high; would have awarded Kshs 200,000 for pain and suffering and loss of amenities, Kshs 50,000 for loss of future prospects of employment, and Kshs 25,000 for the future operation and its pain and suffering, totalling Kshs 275,000, while concurring on special damages of Kshs 8,697 and on costs.

I am inclined to think that the damages proposed are as much too high as the learned trial judge’s award was too lowp. 8
On appeal from
High Court of Kenya
HCCC 3569 of 1981
Jurisdiction invoked
Appeal to the Court of Appeal under the applicable appellate provisions (not expressly cited in the judgment)

Relief refused

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Award of the cost of the future operation as a separately itemised head distinct from the general damages figure in the majority's award

The majority treated the Shs 350,000 global figure as including loss of earning capacity and did not itemise a separate sum for the future operation; Platt Ag JA alone would have added it separately

p. 2

Costs

The appeal will accordingly be allowed with costs (costs 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.

The order of the court is that the whole of Kshs 350,000 general damages awarded in this case be paid into an interest bearing account in the name of the plaintiff
p. 10Final orders - administration of award for an infant plaintiff
For the order of the High Court that the plaintiff (the appellant) should receive Shs 150,000 by way of general damages, there will be substituted an award of Shs 350,000. Orders accordingly.
p. 5Disposition - substitution of award
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
p. 1Test for appellate interference with damages
a court is quite right to make a modest award for loss of future earnings, or as Masime J more correctly put it, loss of future earning capacity, in the case of a child, provided that there is some evidence thereof
p. 2Loss of earning capacity for children
awards made by foreign courts, though helpful as a guide, do not necessarily represent the standards which should prevail in Kenya
p. 4Foreign comparators and local conditions

Issues in the judgment

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minor

The case title and appellate case number are not stated in the judgment; the title is inferred from the parties named (the infant appellant Idi Ayub Omari Shabani suing through next friend Yusuf Juma, and the City Council of Nairobi) and the appeal is identified only by the High Court case below, HCCC 3569 of 1981.

minor

The special damages figure is inconsistent within the judgment: the opening narrative records Shs 6,850 as special damages while Nyarangi JA records Shs 8,697 as agreed.

minor

The degree of disability is stated inconsistently in the judgment: Hancox JA cites Mr Hicks at 30% overall and Mr Suleman at 46%, while Nyarangi JA records the medical evidence as loss of function of 75%.

minor

In describing Isabella Wanjiru Karangu v Washington Malele, the judgment contains internally conflicting figures for the award: Hancox JA says damages were increased from Shs 160,000 to KShs 200,000, while Nyarangi JA says the court awarded Shs 150,000.

minor

The citation Bhogal v Burbidge [1975] EA 375 is quoted at 'page 289', an impossible page for a volume with that citation, suggesting a typographical error in the 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, "Shabani v City Council of Nairobi (Civil Appeal 52 of 1984) [1985] KECA 48 (KLR)", Case Analysis (1985). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/48/eng@1985-03-08

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