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Court of AppealPartially AllowedCivil Appeal No. 23 of 1997

Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR)

Court of Appeal of Kenya
26 September 1997
RKR. O. KwachROR. S. C. OmoloGPG. S. Pall
843 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that young children cannot be blamed for accidents they're involved in, restoring full compensation for an injured eight-year-old boy.

What this practically means

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Executive summary

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The appellant, an 8-year-old schoolboy suing through his father, was struck by a motor vehicle owned by the second respondent and driven by the first respondent along Lenana Road, Nairobi, suffering a fractured left femur and bruises. The trial court (Mwera J) found the accident substantially contributed to by the appellant's own negligence, held him 90% to blame, awarded Shs.80,000/- general damages and entered judgment for Shs.8,000/- after the 90% reduction. On appeal, the Court of Appeal (Kwach, Omolo and Pall JJ.A) allowed the liability ground. It found, on a balance of probabilities, that the appellant was on the pavement when hit, that the respondents' allegation that he dashed across the road was unsupported by any evidence since they gave none, and that the trial judge's speculation about the child crossing in play had no evidential basis. It further held, following Bashir Butt v Uwais Ahmed Khan, that as a matter of law a child of tender age cannot be guilty of contributory negligence. The quantum ground failed: the Court found nothing erroneous in the Shs.80,000/- award given the injuries, recovery level and age. The Court set aside the judgment and decree below, entered judgment for the appellant against the respondents jointly and severally for Shs.80,000/- with costs and interest from 28th October 1992, and directed that the decretal sum be placed in an interest-bearing account in the joint names of the Registrar of the High Court and the appellant's father, the interest to fund the appellant's education and the capital paid over on majority. The appellant also received the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge's finding of 90% contributory negligence against the appellant was sustainable on the evidence and in law, given that the appellant was a child of tender age
  2. 2.Whether the award of Shs.80,000/- general damages was so inordinately low as to be a wholly erroneous estimate warranting interference

Key legal issues

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01

Contributory negligence of a child of tender age

Holding

The trial judge's apportionment of 90% blame to the 8-year-old appellant was unsustainable both on the evidence and in law; a child of tender age cannot in law be guilty of contributory negligence.

Reasoning

The evidence established on a balance of probabilities that the appellant was walking on the pavement when struck, and the respondents gave no evidence to explain the accident. The trial judge's speculation that the child may have crossed the road in play had no evidential support. Further, as a matter of law following Bashir Butt v Uwais Ahmed Khan, a child of tender age cannot be held contributorily negligent. The finding was therefore set aside and full liability imposed on the respondents.

p. 2
02

Quantum of general damages

Holding

The award of Shs.80,000/- general damages was not inordinately low or a wholly erroneous estimate and was left undisturbed.

Reasoning

Counsel for the appellant urged that the award was so low as to be wholly erroneous, citing cases with larger awards. The Court held that comparable awards are not determinative; it examined the actual injuries (fractured left femur and bruises), the level of recovery achieved and the appellant's age, and found nothing erroneous in the trial judge's estimate. The ground of appeal on quantum was rejected.

p. 2

Legal principles established

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  • As a matter of law, a child of tender age cannot be held guilty of contributory negligence.
  • Uncontroverted allegations in a defence, unsupported by evidence, remain mere allegations and cannot displace a plaintiff's unchallenged evidence.

Court orders

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  1. 1.Appeal allowed on liability; the judgment and decree of Mwera J set aside
  2. 2.Judgment entered for the appellant against the respondents jointly and severally for Shs.80,000/- with costs and interest at court rates from 28th October 1992
  3. 3.Decretal sum to be deposited in an interest-bearing account in a reputable bank in the joint names of the Registrar of the High Court and the appellant's father, the interest to be applied for the appellant's education
  4. 4.Capital, if any, to be paid over to the appellant upon reaching the age of majority
  5. 5.Appellant to have the costs of this appeal

The bench

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

RK
majority
RO
majority
GP
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2339 of 1991
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific provision stated in the judgment)

Relief refused

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Enhancement of the quantum of general damages beyond Shs.80,000/-

Taking into account the actual injuries, the level of recovery achieved and the appellant's age, the Court found nothing erroneous in the trial judge's estimate

p. 2

Costs

The appellant will have the costs of this appeal; judgment entered with costs and interest at court rates from 28th October 1992 against the respondents jointly and severally.

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.

As a matter of law, a child of tender age cannot be held guilty of contributory negligence - see Bashir Butt v Uwais Ahmed Khan (1988) 1 KAR 1.
p. 2Contributory negligence - child of tender age
The allegation in the defence that the appellant had dashed across the road is not evidence and remains forever an allegation.
p. 2Weight of unproven allegations in a defence
In the result we allow this appeal, set aside the judgment and decree of Mwera, J and enter judgment for the appellant against the respondents jointly and severally for Shs.80,000/- together with costs and interest at court rates from 28th October, 1992.
p. 2Final orders - disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] KECA 336 (KLR)", Case Analysis (1997). Civil Appeal No. 23 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/336/eng@1997-09-26

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