Shabani v City Council of Nairobi (Civil Appeal 52 of 1984) [1985] KECA 48 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for appellate interference with quantum of damages
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.
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.
Loss of future earning capacity for an infant plaintiff
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.
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.
Comparison with foreign awards and local conditions
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.
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.
Global sum versus itemisation
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.
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.
Legal principles established
#- 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
#- 1.The appeal is allowed with costs
- 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.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.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.Income from the account may be paid out to the next friend for the infant's maintenance, medical expenses and treatment
- 6.On attaining 18 years the capital sum standing to the credit of the account shall become the property of the plaintiff absolutely
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.