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Court of AppealPartially AllowedCivil Appeal (Mombasa), judgment delivered 26 July 1985

Mwanasokoni v Kenya Bus Services Ltd & 3 Others (Civil Appeal 35 of 1985) [1985] KECA 82 (KLR)

Court of Appeal of Kenya
26 July 1985
AHA.R.W HancoxJNJ.O NyarangiJGJ.M Gachuhi
4,423 words in judgment
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The bottom line

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Kenya's Court of Appeal overturned a trial judge's dismissal, awarding a bus passenger Kshs 101,000 after finding her eye injury was proved on the evidence.

What this practically means

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Executive summary

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The appellant, a passenger in a country bus, sued for damages for negligence after a 24 March 1978 collision between two buses in which she claimed she lost the vision in her right eye from flying glass. Bhandari J in the High Court at Mombasa found collision and negligence on the part of the Kenya Bus driver, but, on a fifth issue he framed himself, found her injury not proved and dismissed the suit, notionally assessing damages. The Court of Appeal (Hancox, Nyarangi and Gachuhi Ag JJA) unanimously allowed the appeal on grounds 2 and 3. It held the judge was right to frame the additional issue under Order 14 rule 5 of the Civil Procedure Rules, dismissing ground 1. However, the judge misapprehended the evidence: he rejected the strong, unchallenged corroboration of fellow passenger Mwijaa Badi, overlooked the unchallenged P3 form and Dr Mehta's report, and gave undue weight to the absence of response when police arrived. The court therefore reversed the finding of fact and held the injury proved on a balance of probabilities. The third respondent was wholly liable, making the first respondent vicariously liable. On quantum, the court rejected the respondent's submission of a conflict between the Lubia and Bundi awards, holding them distinguishable on their facts, and awarded Kshs 100,000 general damages plus agreed special damages of Kshs 1,100 (total Kshs 101,000), with interest on special damages. Costs of the appeal and the High Court were awarded to the appellant, with the mode of recovery reserved. The decision reversed the judgment below.

Questions the Court framed

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

  1. 1.Whether the trial judge was entitled to frame the additional (fifth) issue as to whether the appellant was injured in the accident
  2. 2.Whether the trial judge's finding that the appellant was not injured should be disturbed on appeal
  3. 3.Whether the notional damages assessed by the trial judge were manifestly too low
  4. 4.Whether there was a conflict between the awards in Kemfro Africa (Lubia) and Bundi Marube such that this Court could choose between them

Key legal issues

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01

Framing of additional issues by the trial court

Holding

The trial judge was perfectly right to frame the additional issue whether the plaintiff was injured, as expressly permitted by Order 14 rule 5 of the Civil Procedure Rules.

Reasoning

Order 14 rule 5 permits the court to amend or frame additional issues at any time before passing a decree. Even without the rule, the judge was obliged to determine whether the plaintiff was injured in order to arrive at a just and fair decision, since liability without proof of injury could found no award.

p. 2
02

Appellate interference with findings of fact

Holding

Although a first appeal court may re-evaluate evidence, it will interfere with a trial judge's finding of fact only where it is based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

Citing Peters v Sunday Post and Ephantus Mwangi v Wambugu, the court affirmed the deference owed to a judge who saw and heard the witnesses. Here the judge rejected strong, unchallenged corroborative evidence of the fellow passenger, ignored the unchallenged P3 form and Dr Mehta's report, and gave undue weight to the lack of response to the police officer's inquiry, amounting to a misapprehension of the evidence justifying interference.

p. 3
03

Vicarious liability for driver's negligence

Holding

The third respondent, driver of omnibus KJV 719, was wholly liable for the collision, and the first respondent was vicariously liable for his negligence in the course of employment.

Reasoning

The trial judge had found the Kenya Bus driver was on the wrong side of the road and negligent, while the country bus driver took avoiding action. There was no appeal on those findings, so they stood; only the injury finding was reversed. Liability followed from the established negligence and the employment relationship, which was not disputed at trial.

04

Alleged conflict of authority on quantum (Lubia v Bundi)

Holding

There was no conflict between Kemfro Africa (Lubia) and Bundi Marube; the awards were distinguishable on the facts and circumstances of each injured person.

Reasoning

Bundi concerned a 14-year-old boy whose earning capacity and prospects were largely unaffected; Lubia concerned a young woman disfigured by a glass eye affecting her appearance, marriage prospects and employment. Awards of damages are inherently fact-specific, so differing figures do not create conflicting precedent entitling the court to choose between them under Kiriri Cotton and Young.

p. 7
05

Quantum for loss of sight of one eye

Holding

The correct general damages for loss of sight in one eye was Kshs 100,000, following the increased award in Mohamed Juma v Kenya Glass Works Ltd adjusted for inflation, plus agreed special damages.

Reasoning

The trial judge overlooked the binding Court of Appeal decision in Mohamed Juma and instead relied on a High Court award that had already been substituted on appeal. Guided by the appellant's age (about 40), absence of proven loss of earning capacity, the vulnerability of the remaining eye, and recent comparable awards, the court assessed general damages at Kshs 100,000.

p. 6

Legal principles established

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  • An appellate court may interfere with a finding of fact only where it is based on no evidence, on a misapprehension of the evidence, or where the judge acted on wrong principles
  • A court may at any time before passing a decree amend or frame additional issues as are necessary for determining the matters in controversy
  • Two awards of damages differing in amount are not necessarily conflicting decisions; awards depend on the circumstances of each case, and a court faced with genuinely conflicting decisions may choose which to follow
  • A judgment is not given per incuriam where it was given in full knowledge of the other authority relied on

Court orders

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  1. 1.Ground 1 of the appeal dismissed
  2. 2.Grounds 2 and 3 of the appeal allowed
  3. 3.Trial judge's finding of fact that the appellant was not injured reversed; finding substituted that she was injured as a result of the collision
  4. 4.First and third respondents declared jointly and severally (vicariously) liable in negligence
  5. 5.Judgment substituted for the appellant in the sum of Kshs 101,000 (Kshs 100,000 general damages plus Kshs 1,000/1,100 agreed special damages) plus interest on special damages at court rates from the date of filing suit until payment
  6. 6.Costs of the appeal and of the proceedings in the High Court awarded to the appellant, the mode of recovery and payment reserved

The bench

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

AH
majority

Wrote the judgment

JN
majority

Wrote the judgment

JG
majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
Mombasa High Court Civil Case (negligence suit following road accident of 24 March 1978)
Jurisdiction invoked
First appeal to the Court of Appeal against a judgment of the High Court in a civil suit

Relief refused

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Ground 1 of the appeal (complaint that the judge wrongly framed the fifth issue)

Framing additional issues is expressly permitted by Order 14 rule 5 of the Civil Procedure Rules and was in any event necessary for a just decision

p. 2

Costs

Costs of the appeal and of the proceedings in the High Court awarded to the appellant; the issue of how those costs are to be recovered and paid reserved to enable counsel to address the court

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.

only when the finding of fact that is challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding he did, will this Court interfere with it
p. 3appellate interference with findings of fact
The court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
p. 2framing additional issues - Order 14 rule 5 Civil Procedure Rules
It is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness.
p. 3deference to trial judge on facts
It is therefore erroneous, with due respect to Mr Satchu, to argue and submit that there is a conflict between Bundi and Lubia. There is therefore no question of this court being faced with two conflicting decisions and being entitled and bound to decide which to follow
p. 5conflicting precedents on quantum
the appeal will be allowed and for the judge's finding there will be substituted a finding that the first and third respondents are jointly and severally liable to the appellant in the sum of Kshs 101,000.
p. 4final orders / disposition
I would set aside the order of the High Court and substitute judgment for the plaintiff the sum of Kshs 101,100 plus costs and interest as prayed in the plaint.
p. 7final orders - Gachuhi Ag JA
I would therefore take the unusual course of reversing the learned judge's finding of fact on this issue, and hold that the appellant had established on the balance of probabilities that she sustained the injury to her eye as a result of the collision between the two buses
p. 4reversal of finding on injury - burden and standard of proof

Issues in the judgment

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minor

The concurring judgment of Gachuhi Ag JA states a total award of Kshs 101,100, whereas Hancox JA and Nyarangi JA state the award as Kshs 101,000 (Kshs 100,000 general plus Kshs 1,000/1,100 special damages); the judgment itself also records the agreed special damages inconsistently as Kshs 1,100 and 'the agreed quantum of special damages of Kshs 1,100' against a total of 101,000.

minor

The case name and party identities are not stated in the header of this copy; the parties are identified only as 'the appellant', 'the first respondents', etc., and the appellant's name never appears in the text.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwanasokoni v Kenya Bus Services Ltd & 3 Others (Civil Appeal 35 of 1985) [1985] KECA 82 (KLR)", Case Analysis (1985). Civil Appeal (Mombasa), judgment delivered 26 July 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/82/eng@1985-07-26

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