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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 187 of 1998

Kebirigo General Stores Ltd v Maria Wambura Mwita [1999] KECA 132 (KLR)

Court of Appeal
24 November 1999
363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a KSh 974,640 personal injury award, confirming that challenging damages without comparable cases fails.

What this practically means

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Executive summary

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This was an appeal by the unsuccessful defendant, Kebirigo General Stores Ltd, against the judgment of Mbaluto, J of the High Court at Kisii delivered on 8 April 1998 in H.C.C.C. No. 206 of 1995, in which the respondent was awarded general damages of Shs. 650,000, special damages of Shs. 640, loss of future earnings of Shs. 234,000 and costs of future earnings of Shs. 90,000, totalling Shs. 974,640 with costs and interest. The appeal raised only two points. First, the appellant challenged the learned judge's refusal to grant an adjournment. The Court held that this was essentially a matter of discretion with which it would not interfere unless the judge was shown to be plainly wrong or the discretion wrongly exercised, and it was not persuaded that the judge erred in principle or otherwise; that ground failed. Secondly, the appellant challenged the quantum of damages. The Court heard nothing to satisfy it that the award was so inordinately high as to warrant interference: no comparable cases were cited on behalf of the appellant, and the cases referred to by the learned judge were not shown to be inapplicable. The Court was satisfied that the respondent had discharged the burden on her on a balance of probabilities and that the injuries she suffered were serious. For those reasons the Court found the appeal to have no merit and dismissed it with costs. The judgment was delivered at Kisumu on 24 November 1999 by Gicheru, Tunoi and Lakha, JJ.A., as a single judgment of the Court.

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 refusing to grant an adjournment
  2. 2.Whether the award of damages was so inordinately high as to warrant interference by the Court

Key legal issues

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01

Refusal of adjournment as an exercise of judicial discretion

Holding

The ground fails; the trial judge did not err in principle in refusing the adjournment

Reasoning

The refusal of an adjournment is a discretionary act. The Court of Appeal will interfere only where the judge was plainly wrong or the discretion was wrongly exercised. On the material before it, the Court was not persuaded that the learned judge erred in principle or otherwise, so the ground could not succeed.

p. 1
02

Quantum of damages - whether the award was inordinately high

Holding

The award stands; the appellant failed to show the damages were inordinately high or that the comparable cases relied on below were inapplicable

Reasoning

The appellant advanced nothing to satisfy the Court that the award was so inordinately high as to warrant interference. No comparable cases were cited for the appellant, and the cases referred to by the learned judge were not shown to be inapplicable. The respondent discharged the burden on her on a balance of probabilities, and the injuries were serious.

p. 1

Legal principles established

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  • An appellate court will not interfere with a trial judge's refusal to grant an adjournment unless the judge is shown to have been plainly wrong or to have exercised the discretion wrongly
  • An appellate court will not disturb an award of damages as inordinately high unless the appellant demonstrates error, for instance by citing comparable cases showing the award to be out of line

Court orders

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  1. 1.The appeal is dismissed with costs

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 Kisii
H.C.C.C. No. 206 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (appeal as of right against the judgment of the superior court)

Relief refused

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Setting aside or reduction of the High Court award of damages

No comparable cases were cited and the respondent discharged the burden of proof on a balance of probabilities

p. 1

Interference with the trial judge's refusal of an adjournment

Refusal of an adjournment is a discretionary matter and the judge was not shown to be plainly wrong

p. 1

Costs

The appeal is dismissed with costs to the respondent

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.

This is essentially a matter of discretion with which this Court will not interfere unless it is shown that the learned judge was plainly wrong or that the discretion has been wrongly exercised.
p. 1Non-interference with discretionary refusals of adjournment
No comparable cases were cited on behalf of the appellant and those referred to by the learned judges are not shown to be inapplicable.
p. 1Burden on an appellant challenging quantum of damages
For the reasons above stated this appeal has no merit. It is dismissed with costs.
Final orders - dismissal of the appeal

Issues in the judgment

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minor

The certified copy contains a garbled/corrupted passage in the sentence describing the injuries, obscuring part of the text

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, "Kebirigo General Stores Ltd v Maria Wambura Mwita [1999] KECA 132 (KLR)", Case Analysis (1999). Civil Appeal No. 187 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/132/eng@1999-11-24

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