Kigaragari v Aya [1985] KECA 119 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award of general damages of Kshs 250,000 was so manifestly excessive as to warrant the appellate court's interference
- 2.Whether the High Court judge erred in not distinguishing the authorities on damages cited to him
- 3.Whether the award for loss of earnings should be reduced given the respondent was not employed on permanent terms
- 4.Whether loss of prospects of marriage could properly be taken into account
- 5.Whether the special damages of Kshs 342, unsupported by evidence, should be disallowed
Key legal issues
#Interference with assessment of general damages on appeal
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.
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Dick v Koinange, Ahmed v Nairobi Deluxe Services, Kahindi Nyale v Chazi) and found each distinguishable on the facts or outdated by inflation.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.
Loss of future earnings where the claimant was a casual worker
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.
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.
Loss of prospects of marriage as a head of damages
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.
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.
Unproved special damages
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs at the normal rate
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
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
- On appeal from
- High Court at Eldoret
- null
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against quantum of damages)
Relief refused
#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
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
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
Costs
Appeal dismissed with costs at the normal rate (costs to the respondent).
Quotable passages
#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
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.
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
I would accordingly dismiss this appeal with costs at the normal rate.
Issues in the judgment
#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
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 typographical errors in the judgment, e.g. 'Camder' for Camden and 'discended' for descended
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.