Ali v Nyambu t/a Sisera Store (Civil Appeal 5 of 1990) [1990] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that injury victims must back every shilling of claimed special damages with real evidence, not just paperwork listing their losses.
What this practically means
#Executive summary
#Key legal issues
#Strict proof of special damages
Special damages must be strictly proved; unsupported hospital and doctors' charges are disallowed even where weekly statements were produced as exhibits
Applying Benham-Carter v Hyde Park Hotel Ltd and Ouma v Nairobi City Council, the court held that pleading particulars is not proof. Hospital statements had no supporting evidence, the doctors' bills were partly exaggerated and unpaid, and items such as transport and out-patient treatment had no evidential support, so they were disallowed or reduced.
Appellate interference with assessment of damages
The Court may interfere only where the trial judge applied a wrong principle or the award is so inordinately high or low as to be a wholly erroneous estimate; here the judge took irrelevant factors into account
Adopting the Nance v British Columbia Electric Railways principles as applied in Ilanga v Manyoka and Lukenya Ranching v Kavoloto, the Court found the trial judge took irrelevant factors into account, rendering the award on medical expenses wholly erroneous, and proceeded to reassess the special damages itself.
General damages for pain, suffering and loss of amenities
The award of Shs 220,000 was enhanced to Shs 250,000, incorporating future pain and suffering and loss of marriage prospects
The Court accepted the trial judge, who saw the plaintiff, had considered all aspects of loss, but considered Shs 250,000 more comparable with current awards; future operation pain could be accommodated within the general award, and no maid was needed as the appellant would adjust in time.
Legal principles established
#- Special damages, in addition to being pleaded, must be strictly proved
- An appellate court will not substitute its own figure for an award of damages unless the trial court applied a wrong principle or the award is so inordinately low or high as to be a wholly erroneous estimate
- The burden of proving damages lies on the plaintiff; it is not enough to particularise them in the pleadings
Court orders
#- 1.Special damages reduced to Shs 142,100 (accident abstract Shs 100; Pandya Memorial Clinic Shs 67,500; cost of future operation Shs 25,000; medical report Shs 1,000; Dr Abdul Shah Shs 6,000; Dr S A Khandwalla Shs 42,500)
- 2.General damages for pain, suffering and loss of amenities, including loss of marriage prospects and future pain and suffering, assessed at Shs 250,000
- 3.Loss of future earnings left as awarded by the trial judge at Shs 270,000
- 4.Total damages payable by the respondent to the appellant of Shs 662,100
- 5.Each party to bear his/her own costs
- On appeal from
- High Court of Kenya
- not stated in the judgment as supplied
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (not expressly cited in the judgment as supplied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Nyambu t/a Sisera Store (Civil Appeal 5 of 1990) [1990] KECA 54 (KLR)", Case Analysis (1990). not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/54/eng@1990-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.