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Court of AppealPartially AllowedCivil Appeal (Mombasa), judgment delivered 26 July 1985· [1985] KECA 82 (KLR)

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.

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
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

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.