Ossuman Dhahir Mohamed & Another v Saluro Bundit Muhumed
The bottom line
#Kenya's Court of Appeal cut a road accident award from Shs.5.5 million to Shs.574,200, ruling that unproven losses and speculative future medical costs cannot be claimed.
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 learned judge misdirected himself by relying on the traffic magistrate's finding that the respondent was a passenger to discredit the defence evidence
- 2.Whether reliance on the record of the traffic proceedings was erroneous
- 3.Whether the apportionment of liability at 80%-20% should be disturbed
- 4.Whether the awards for general damages, future medical costs, domestic help, loss of earnings and earning capacity, and special damages were excessive or unsupported
Key legal issues
#Use of traffic proceedings record as a crutch for credibility
The judge's reliance on the traffic magistrate's finding that the respondent was a passenger, to discredit the defence, was a serious misdirection; there was no admission of that fact in either proceedings
The court, following Tuitoek Cheserem, held that contents of an exhibited record of prior proceedings do not automatically become evidence. Without a clear, unambiguous admission, the judge could not use the magistrate's finding as a crutch to disbelieve the defence; he had to evaluate the civil evidence itself.
Apportionment of liability
Liability apportioned equally at 50% each; the respondent's failure to move out of the way when warned was potently causative, as was reversing without a proper look-out
Re-evaluating the evidence, the court found it probable the driver warned those pushing the lorry (corroborated by two witnesses), but he still had a duty to ensure they had moved away. Both omissions were potently causative, justifying equal apportionment; KWS was vicariously liable.
Future medical expenses
The award of Shs.1,890,000 for future operations was disallowed wholly because the respondent's own doctor said such treatment would be at considerable risk and might cause added complications
Courts cannot award unincurred future costs of operations that may serve no purpose and would saddle defendants, insurers and the public with costs never incurred. The claim appeared an afterthought contradicted by the doctor's own opinion.
General damages for pain, suffering and loss of amenities
Award reduced from Shs.1,000,000 to Shs.700,000 plus Shs.300,000 for future treatment and gadgets, having regard to comparable awards and the Kenyan economy
The court compared awards in similar pelvic-injury cases (Mutsotso, Kitele, Vesters, Njau, Karimi, Cecilia Mwangi) and found the judge's award in excess of comparable awards; uniformity in awards and economic limits required reduction.
Special damages and loss of earnings
Special damages allowed only as vouched (Shs.98,400); awards for domestic help and loss of earnings/capacity set aside for want of strict proof
Special damage must be strictly proved; the respondent produced no acknowledgments, bank account, tax proof or trade licence. The court reiterated that plaintiffs cannot throw figures at the judge and must prove losses on evidence.
Legal principles established
#- Admitting a record of previous proceedings in evidence does not make all its contents evidence in the subsequent civil proceedings
- An appellate court interferes with apportionment of blameworthiness only in exceptional circumstances - when clearly wrong, based on no evidence, on misapprehension of the evidence, or on a wrong principle
- Loss of earnings is special damage that must be specifically pleaded and strictly proved; loss of earning capacity must be proved on a balance of probability
- A driver reversing a vehicle with people nearby must ensure no one is within the range of movement of the vehicle
Court orders
#- 1.Set aside the learned judge's apportionment of liability at 80%-20% and substitute 50% liability each on the respondent and the first appellant, the second appellant being vicariously liable
- 2.Set aside the award of Shs.5,497,737 and substitute an award on 100% basis of Shs.1,148,400 (Shs.700,000 pain, suffering and loss of amenities; Shs.300,000 further damages for future treatment; Shs.50,000 loss of services; Shs.98,400 special damages)
- 3.Disallow wholly the future costs of treatment estimated at Shs.1,890,000
- 4.Set aside wholly the awards of Shs.27,737 and Shs.180,000 for hire of domestic help
- 5.Set aside in toto the awards of Shs.600,000 loss of earnings and Shs.1,800,000 loss of earning capacity
- 6.Nett award after 50% deduction of Shs.574,200, with interest at 12% per annum on Shs.49,700 from 12th November 1991 and on Shs.524,500 from 29th July 1993 until payment in full
- 7.Respondent to pay two-thirds of the taxed costs of the appeal to the appellants; respondent to have costs in the superior court on the basis of damages of Shs.574,200
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 6039 of 1991
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (Appeals from the Judgment and Decree of the High Court)
Relief refused
#Future medical and surgical costs of Shs.1,890,000
Dr. Bhanji's own evidence that treatment attempted then would be at considerable risk negated the award of unincurred future costs
Special damages of Shs.27,737 for domestic help
Not strictly proved; no acknowledgments of payment
Loss of earnings and earning capacity of Shs.2,400,000
No documents, bank account, tax proof or trade licence; story too glib to be believable
Costs
The respondent will pay two-thirds of the taxed costs of this appeal to the appellants and the respondent will have her costs in the superior court taxed or agreed on the basis of damages being Shs.574,200.
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.
Admitting in evidence by consent a record of previous proceedings does not mean that all the contents of those proceedings automatically become evidence in the subsequent proceedings
The apportionment of blame represents an exercise of discretion with which the Court of Appeal will interfere only when it is clearly wrong, or based or no evidence, or on misapprehension of the evidence or on the application of a wrong principle.
We set aside the learned judge's apportionment of liability at 80% - 20% and substitute the same with an order that each party namely, the respondent and the first appellant, was 50% to blame for the accident.
On this basis we have no option but to disallow wholly these future costs of treatment estimated at shs.1,890,000/=.
The nett award of damages therefore, after deducting 50% is Shs.574,200/=.
The respondent will pay two-thirds of the taxed costs of this appeal to the appellants and the respondent will have her costs in the superior court taxed or agreed on the basis of damages being Shs.574,200/=.
Issues in the judgment
#Voucher total inconsistency in special damages
Page reference error in Chege v. Vesters citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ossuman Dhahir Mohamed & Another v Saluro Bundit Muhumed", Case Analysis (1997). Civil Appeal No. 30 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/422/eng@1997-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.