KENYA BUS SERVICES (MSA) LTD & another v AFRICANUS AUMA WANJALA [1995] KECA 90 (KLR)
The bottom line
#Kenya's Court of Appeal cut an accident victim's payout from KShs 900,000 to 650,000 because one damages claim was never properly pleaded in court.
What this practically means
#Executive summary
#Key legal issues
#Liability for injuries to a passenger attempting to board the appellant's vehicle
The trial judge's finding of negligence against the driver and rejection of contributory negligence were upheld on appeal.
The court re-evaluated the whole evidence, including the driver's concession that he relied on the mirror and did not know the vehicle's capacity or passenger numbers. It held that interference was possible only on the three enumerated grounds, none of which the appellants established, the findings of fact having established the contrary in the respondent's favour.
Quantum of damages
General damages of KShs. 550,000/= and KShs. 100,000/= for prosthesis were upheld, but the unpleaded award of KShs. 250,000/= for loss of earning capacity was set aside.
On general damages and prosthesis, the court found no wrong principle or error warranting interference, the injuries having led to malignant ulcers and amputation of a leg. However, loss of earning capacity had not been pleaded at all, so that head of damages could not stand notwithstanding the appellants' advocate not raising it.
Legal principles established
#- An appellate court interferes with a first-instance finding on liability only if the appellant shows absence of negligence, probability that the accident happened without negligence, or that the accident was due to circumstances beyond the driver's control.
- Damages that were not pleaded cannot be sustained on appeal even if the point was not taken by the opposing party's advocate.
Court orders
#- 1.The award of KShs. 250,000/= for loss of earning capacity is set aside
- 2.The decree of the superior court is varied by reducing the decretal amount of KShs. 900,000/= by KShs. 250,000/= to KShs. 650,000/=
- 3.The appellants shall have one-third costs of this appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 177 of 1989
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ( appeal from judgment and decree of the superior court )
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA BUS SERVICES (MSA) LTD & another v AFRICANUS AUMA WANJALA [1995] KECA 90 (KLR)", Case Analysis (1995). Civil Case 106 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/90/eng@1995-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.