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Court of AppealPartially AllowedCivil Appeal No. 190 of 1997

RODRECK NDIRANGU WANDARUA vs AND PETER MAINA KARIUKI [1998] KECA 79 (KLR)

Court of Appeal of Kenya
20 February 1998
1,472 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cut a KSh 1,000,000 prosthetic leg award to KSh 500,000, insisting damages must reflect reasonable local costs and comparable Kenyan awards.

What this practically means

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Executive summary

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This was an appeal by the defendant against a High Court judgment (Juma, J, delivered 12 November 1996 in H.C.C.C. No. 3047 of 1994) awarding the respondent, a deaf and dumb waiter who lost a leg in a 1993 bicycle accident on the Karatina-Nyeri Road, total damages of Shs.1,634,848.20 for personal injuries. Liability was not in issue; the appeal attacked only the award of Shs.1,000,000 for the cost of a prosthesis, said to be based exclusively on Dr. Bhanji's evidence that the respondent needed an exotic prosthesis fitted in Europe, while ignoring Dr. Wokabi's evidence that a good fibre-glass prosthesis with flexible joints was available locally at not more than Shs.150,000. The Court of Appeal, in a single judgment of the court delivered by Akiwumi, Tunoi and Pall, JJ.A, restated the principle that damages must be reasonable, assessed with moderation, within limits set by decided cases and within limits Kenyans can afford, citing Lord Morris in West (H) & Son Ltd v Shephard. Noting that comparable amputation awards ranged between Shs.150,000 and Shs.500,000, and that the respondent was unsophisticated rural folk whose lifestyle did not justify an exotic prosthesis, the court held Dr. Bhanji's European recommendation absurd and totally unacceptable. The appeal was allowed: the prosthesis award was reduced to Shs.500,000 and further reduced by 20% to reflect the appellant's 80% liability, with the appellant receiving 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 learned Judge erred in awarding Shs.1,000,000 as cost of prosthesis by relying on Dr. Bhanji's evidence despite Dr. Wokabi's evidence that a locally available fibre-glass prosthesis offered the same facilities and conveniences
  2. 2.Whether the learned Judge erred in failing to consider the defendant's submissions on mitigation of loss, namely that a reasonably good prosthesis was available locally and the plaintiff's station in life did not justify the cost of an exotic prosthesis
  3. 3.Whether the award of Shs.1,000,000 for prosthesis was so inordinately high as to represent an entirely erroneous estimate of damages warranting appellate interference

Key legal issues

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01

Whether the award of Shs.1,000,000 for the cost of an exotic prosthesis was manifestly excessive

Holding

The award was so inordinately high as to represent an entirely erroneous estimate and was reduced to Shs.500,000, further reduced by 20% for 80% liability.

Reasoning

The court weighed the conflicting medical evidence. Dr. Wokabi testified that a high-quality prosthesis with flexible joints was available locally at not more than Shs.150,000 and could last ten years, while Dr. Bhanji's recommendation of a European prosthesis costing about Shs.1,000,000 was, in the court's view, absurd and totally unacceptable. Comparable awards for similar amputation injuries ranged between Shs.150,000 and Shs.500,000, and the respondent's unsophisticated rural lifestyle did not justify the exotic prosthesis.

p. 3
02

The principles governing awards of damages for personal injuries

Holding

Damages must be reasonable, assessed with moderation, within limits set by decided cases and within limits Kenyans can afford, with comparable injuries compensated by comparable awards.

Reasoning

Adopting Lord Morris of Borthy-Gest in West (H) & Son Ltd v Shephard, the court reaffirmed that money cannot renew a battered physical frame; courts can only give reasonable compensation. There must be an endeavour to secure uniformity of approach, awards must be reasonable and moderate, and amounts awarded are to a considerable extent conventional. The respondent, being deaf and dumb, was a special litigant whose station in life had been drastically worsened, but this did not justify an award beyond reasonable compensation.

p. 2

Legal principles established

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  • Awards of damages must be within limits set by decided cases and within limits Kenyans can afford, giving reasonable compensation assessed with moderation and with comparable injuries compensated by comparable awards.
  • An appellate court will interfere with a trial judge's award of damages where it is so inordinately high as to represent an entirely erroneous estimate.
  • In assessing special damages items such as the cost of prosthesis, the court should have regard to the claimant's station in life and to reasonably available local alternatives; a recommendation that an unsophisticated rural claimant travel to Europe for fitting of a prosthesis may be rejected as unreasonable.

Court orders

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  1. 1.Appeal allowed
  2. 2.Award of Shs.1,000,000 for cost of prosthesis reduced to Shs.500,000
  3. 3.Award further reduced by 20% as the appellant's liability was 80%
  4. 4.Appellant to have the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3047 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (appeal from the Judgment and Decree of the High Court)

Relief refused

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Restoration of the full award of Shs.1,000,000 for prosthesis

The court found the award so inordinately high as to be an entirely erroneous estimate, accepting Dr. Wokabi's evidence that a good prosthesis was available locally at not more than Shs.150,000

p. 3

Costs

The appellant will have the costs of the appeal.

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.

It has often been pointed out by this court that awards of damages must be within limits set by decided cases and also within limits that Kenyans can afford.
p. 2Reasonable compensation and conventional awards
We are of the view that the award of Shs.1,000,000.00 for prosthesis in the particular circumstances of this case is so inordinately high as to represent an entirely erroneous estimate as to call for reduction.
p. 3Appellate interference with excessive damages
The upshot of all this is that this appeal is allowed and the award made by the learned Judge is reduced to Shs.500,000.00 and further reduced by 20% as the appellant's liability was 80%. The appellant will have the costs of the appeal.
p. 3Final orders and disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "RODRECK NDIRANGU WANDARUA vs AND PETER MAINA KARIUKI [1998] KECA 79 (KLR)", Case Analysis (1998). Civil Appeal No. 190 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/79/eng@1998-02-20

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