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Court of AppealPartially AllowedCivil Appeal 203 of 2001

Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] KECA 130 (KLR)

Court of Appeal of Kenya
28 July 2006
ROR.S.C. OmoloPWP.N. WakiWDW.S. Deverell
5,415 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a road accident payout from Shs.895,400 to Shs.485,400, ruling that claimed losses must be specifically pleaded and backed by evidence.

What this practically means

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Executive summary

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This is a first appeal against a road traffic accident award by Osiemo J in the High Court at Machakos, in which liability had been conceded at 100% and only quantum was in dispute. The respondent, a fare-paying passenger injured when the appellant's matatu rolled on the Machakos-Kitui road, had been awarded Shs.300,000 for pain, suffering and loss of amenities, Shs.100,000 for future medical expenses, Shs.480,000 for loss of business, and Shs.15,400 in special damages. The Court rejected the respondent's late attempt to strike out the appeal over the missing exhibit 5, holding that the Deputy Registrar's certificate under rule 85(3) validly excused its omission. Applying the established principle that an appellate court will not disturb damages unless the award is entirely erroneous or rests on wrong principles or misapprehended evidence, the Court affirmed the Shs.300,000 award for pain, suffering and loss of amenities. It found no evidential basis for the Shs.100,000 award for future medical expenses and substituted Shs.10,000, the figure estimated by Dr. Shah. On loss of business, the Court held that loss of earnings is special damage which must be specifically pleaded and strictly proved; no such pleading existed. Treating the claim as loss of earning capacity, and reaffirming that earnings may be proved by oral testimony rather than only documents, the Court awarded Shs.160,000 based on the respondent's unchallenged evidence of Shs.80,000 monthly profit. The appeal succeeded substantially, and the Court ordered each party to bear its own costs, reducing the total award from Shs.895,400 to Shs.485,400.

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 that the respondent lost the use of his left hand was supported by the medical evidence
  2. 2.Whether the award of Shs.300,000 general damages for pain, suffering and loss of amenities was inordinately high
  3. 3.Whether there was an evidential basis for the award of Shs.100,000 for future medical expenses
  4. 4.Whether the award of Shs.480,000 for loss of business/loss of earning capacity was sustainable in law, given the pleading and evidence

Key legal issues

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01

Standard for interference with awards of damages on appeal

Holding

The Court will not disturb an award unless it is inordinately high or low as to be an entirely erroneous estimate, or the judge acted on wrong principles or misapprehended the evidence.

Reasoning

The Court adopted the classic statement of LAW JA in Butt v Khan, as followed in Kitavi v Coastal Bottlers Ltd, and Lord Morris in H. West & Son Ltd v Shephard. Applying these principles, the Shs.300,000 award for pain, suffering and loss of amenities was only about Shs.50,000 above the closest comparable award and did not warrant interference.

p. 3
02

Treatment of expert medical opinion and findings of fact on appeal

Holding

Expert medical opinion is not binding on the court; findings of fact by the trial judge on a first appeal will be disturbed only if based on no evidence, misapprehension of evidence, or wrong principles.

Reasoning

The Court re-examined both medical reports and the respondent's testimony, holding the doctors' reports not strictly divergent given the different examination periods. The trial judge's finding that the respondent lost the use of his left hand was in principle supportable, though the hand was not totally useless.

p. 6
03

Future medical expenses must be founded on evidence

Holding

An award of future medical expenses must be justified by evidence; the trial judge's award of Shs.100,000 had no evidential basis and was substituted with the Shs.10,000 estimated by Dr. Shah.

Reasoning

Dr. Kibore recommended future treatment but expressed no opinion on cost; Dr. Shah estimated Shs.10,000 for manipulation of the deformed fingers. Both counsel conceded there was no evidential basis for the higher award, and the respondent had undergone no operation in 14 years.

p. 7
04

Pleading and proof of loss of earnings versus loss of earning capacity

Holding

Loss of earnings is special damage requiring specific pleading and strict proof; loss of earning capacity may be awarded as general damages but must still be proved on a balance of probability.

Reasoning

The loss claimed had been incurred before suit was filed and was special damage never specifically pleaded. Even as loss of earning capacity, the judge's calculation of Shs.8,000 per day was not based on the respondent's sworn evidence of Shs.80,000 net profit per month. The Court awarded Shs.160,000 using a multiplier of 2 on that evidence, holding that absence of audited accounts does not defeat the remedy.

p. 8

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
  • Loss of earnings is a special damage claim which must be specifically pleaded and strictly proved
  • Expert medical opinion evidence is not binding on the court and may be rejected where there is proper and cogent basis, considered alongside all other evidence
  • Earnings and profession may be proved by evidence other than documentary evidence, including sworn oral testimony

Court orders

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  1. 1.Rejected the respondent's late oral application to strike out the appeal on account of the missing exhibit 5
  2. 2.Affirmed the award of Shs.300,000 general damages for pain, suffering and loss of amenities
  3. 3.Set aside the award of Shs.100,000 for future medical expenses and substituted an award of Shs.10,000
  4. 4.Set aside the award of Shs.480,000 for loss of business and substituted an award of Shs.160,000 for loss of earning capacity
  5. 5.Ordered that each party will bear its own costs of the appeal

The bench

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

RO
majority

Wrote the judgment

PW
majority

Wrote the judgment

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 225 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules

Relief refused

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Appellant's challenge to the award of Shs.300,000 for pain, suffering and loss of amenities

The injuries were fairly serious and the award was not inordinately high compared with comparable awards

p. 6

Respondent's application to strike out the appeal for the missing exhibit 5

Made too late and in contravention of rules 80 and 101(b); the Deputy Registrar's certificate under rule 85(3) covered the exclusion

p. 2

Costs

Each party will bear its own costs of this 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.

We allow the appeal on that ground, set aside the award of Shs.100,000/= and substitute therefor an award of Shs.10,000/=.
p. 7Future medical expenses
Subject to that extent, the ground of appeal succeeds and the award of Shs.480,000/= is hereby set aside and substituted with a figure of Shs.160,000/=.
p. 9Loss of earning capacity
In the result we reject that ground of appeal and affirm the assessment of damages made by the superior court for pain suffering and loss of amenities.
p. 6General damages for pain and suffering
In the end the appellant has succeeded substantially in the appeal but the respondent too has retained much of what was awarded by the superior court. We think in the circumstances that the fairest order on costs would be that each party will bear its own costs of this appeal. It is so ordered.
p. 9Final disposition and costs
an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate
p. 3Standard of appellate interference with damages
The final awards may be summarised as follows
p. 9Summary of final awards totalling Shs.485,400

Issues in the judgment

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minor

The judgment is internally inconsistent about the treatment of the case Mwangi & Anor v Mwangi: it is introduced as an authority the Court was referred to and whose principle it underscores, but its quotation is framed as counsel's submission

minor

The spelling of the appellant's name in the title is 'KIMATU MBUVI' while the Court elsewhere and the record use the same name; however the judgment's summary of awards omits the item labels for the figures, leaving the tabulation of the final awards internally garbled

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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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, "Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] KECA 130 (KLR)", Case Analysis (2006). Civil Appeal 203 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/130/eng@2006-07-28

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