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Court of AppealDismissedCivil Appeal No 85 of 1983

Kigaragari v Aya [1985] KECA 119 (KLR)

Court of Appeal of Kenya
30 May 1985
2,147 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal against the quantum of damages only, liability not being contested. The respondent, Agripina, a 38-year-old widow supporting three children by casual work and night tailoring, lost her right leg above the knee after being knocked down by a vehicle in Kitale in 1977. The High Court (Mbaya J) awarded general damages of Kshs 250,000, loss of earnings of Kshs 51,000 and special damages of Kshs 342. The appellant argued the general damages were manifestly excessive, that the judge failed to distinguish the cases cited to him, that the multiplicand for loss of earnings lacked support, and that special damages were unproved. Nyarangi JA, delivering the leading judgment with which Hancox JA and Platt Ag JA agreed, reaffirmed that an appellate court interferes with damages only where the award is demonstrably wrong, based on a wrong principle, or manifestly excessive such that a wrong principle may be inferred. He also stressed that awards must stay within what Kenya can afford, since large awards pass to the public through higher insurance premiums, and that comparisons must be confined to local decisions adjusted for inflation. The comparable authorities were distinguished on the facts, the general damages award was held adequate, and the loss of earnings figure survived because of the applicable minimum wage. The respondent conceded the special damages and the decretal sum was corrected to Kshs 301,000 with interest. The appeal was dismissed with costs at the normal rate.

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 general damages of Kshs 250,000 was so manifestly excessive as to warrant the appellate court's interference
  2. 2.Whether the High Court judge erred in not distinguishing the authorities on damages cited to him
  3. 3.Whether the award for loss of earnings should be reduced given the respondent was not employed on permanent terms
  4. 4.Whether loss of prospects of marriage could properly be taken into account
  5. 5.Whether the special damages of Kshs 342, unsupported by evidence, should be disallowed

Key legal issues

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01

Interference with assessment of general damages on appeal

Holding

The award of Kshs 250,000 for general damages was upheld as adequate; the appellant failed to show it was manifestly excessive, and the older comparable cases relied on were distinguishable on the facts and required inflation adjustment.

Reasoning

The court reviewed the local comparables (Oluoch v Robinson, Dick v Koinange, Ahmed v Nairobi Deluxe Services, Kahindi Nyale v Chazi) and found each distinguishable on the facts or outdated by inflation. It reaffirmed that assessment of damages is a judicial discretion with which appellate courts are reluctant to interfere absent demonstrable error or a wrong principle, and stressed awards must remain within what Kenya can afford given their effect on insurance premiums.

p. 3
02

Loss of future earnings where the claimant was a casual worker

Holding

Despite insufficient concrete evidence of the claimed monthly income of Kshs 250 used as the multiplicand, the loss of earnings award was not disturbed, taking into account the applicable minimum wage of Kshs 500 and the respondent's credibility.

Reasoning

The judge's multiplicand lacked concrete evidential support, but the court took judicial notice of the minimum wage of Kshs 500 per month said from the bar to be applicable, accepted the respondent was not exaggerating, and concluded the resulting figure was not so excessive as to invite interference.

p. 3
03

Loss of prospects of marriage as a head of damages

Holding

The judge's stress on loss of prospects of marriage did not materially affect the assessment; the respondent could not have married under her custom in any event, and loss of sexual intercourse was itself a substantial loss of amenity properly borne in mind.

Reasoning

The appellant argued loss of marriage prospects had not been specifically pleaded and that the respondent would not have married under her custom. The court agreed the emphasis made little difference, noting the respondent's inability to have sexual intercourse was a substantial amenity loss that would likely have left the assessment the same.

p. 3
04

Unproved special damages

Holding

Special damages of Kshs 342 were not proved nor agreed, as conceded by the respondent's counsel; the resulting deletion reduced the total award to Kshs 301,000 with interest.

Reasoning

The respondent's counsel conceded at the hearing that the special damages were not proved or agreed, and pointed out that the decree as drawn did not comply with the High Court judgment because interest ran from the date of assessment. Suitable deletions were suggested reducing the decretal sum.

p. 2

Legal principles established

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  • An appellate court will interfere with an award of damages only if it is demonstrably wrong, based on a wrong principle, or so manifestly excessive or inadequate that a wrong principle may be inferred
  • Awards of damages must be within the limits set by decided cases and within what Kenya can afford, since large awards are passed on to the public through insurance premiums and increased fees
  • Comparison of damages awards should be confined to decisions of local courts; overseas decisions serve merely as a guide
  • Past damages awards must be adjusted for inflation when used as comparables

Court orders

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  1. 1.The appeal is dismissed with costs at the normal rate
  2. 2.By the respondent's concession, the special damages are deleted so that the amount of Kshs 439,324 reads Kshs 301,000 together with interest thereon

The bench

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

majority

Wrote the judgment

Delivered the leading judgment. Held that liability was not contested and that the appeal concerned quantum only. Applied the principle that an appellate court interferes with damages only where the award is demonstrably wrong, based on a wrong principle, or manifestly excessive; distinguished the old comparable cases on facts and inflation; and upheld the award of general damages of Kshs 250,000, finding it adequate. Also upheld the loss of earnings award despite weak evidence of the multiplicand, taking the minimum wage into account.

For this court to interfere it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferredp. 3
HA
concurring

Wrote the judgment

Concurred wholly with the reasoning and conclusions of Nyarangi JA, agreeing that the awards under each head were not excessive, and would also dismiss the appeal.

I have had the advantage of reading in draft the judgment of Nyarangi, JA. I wholly agree with his reasoning and conclusions, and the awards of damages under each head by the learned judge were not excessive.p. 4
PL
majority
On appeal from
High Court at Eldoret
null
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal against quantum of damages)

Relief refused

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Reduction of the award of general damages of Kshs 250,000

The comparable cases relied on were distinguishable on the facts and affected by inflation, and the assessment of damages is a matter of judicial discretion; the award was adequate

p. 3

Reduction of the sum awarded as loss of earnings

Although there was insufficient concrete evidence of the claimed monthly income of Kshs 250, taking the minimum wage of Kshs 500 into account, the figure arrived at was not so excessive as to invite interference

p. 4

Reduction on account of the judge's stress on loss of prospects of marriage

The stress made little difference; the respondent could not in any event have married under her custom, and her inability to have sexual intercourse was a substantial loss of amenity the judge could properly have borne in mind

p. 3

Costs

Appeal dismissed with costs at the normal rate (costs to the respondent).

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.

For this court to interfere it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred
p. 3standard for appellate interference with damages
awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford.
p. 2affordability and the economic impact of damages awards
It is of course desirable that so far as possible comparable injuries should be about or nearly equally compensated: However, the comparison should be confined to decisions of local courts, other decisions, eg overseas ones serving merely as a guide
p. 2use of comparables in assessing damages
I would accordingly dismiss this appeal with costs at the normal rate.
p. 4disposition

Issues in the judgment

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minor

Internal inconsistency in the citation of Dick v Koinange: the report first cites it as [1973] EA 355 and later as [1873] EA 335; the Oluoch v Robinson award is also first given as Kshs 220,000 and later as Kshs 22,000

minor

The report refers to Rahima Tayab & Another v Anna Mary Kinanu as Civil Appeal No 29 of 1982 in the text but No 28/82 in the case listing

minor

Minor typographical errors in the judgment, e.g. 'Camder' for Camden and 'discended' for descended

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, "Kigaragari v Aya [1985] KECA 119 (KLR)", Case Analysis (1985). Civil Appeal No 85 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/119/eng@1985-05-30

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