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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 315 of 2001

Sosphinaf Company Limited & James Gatiku Ndolo v Daniel Ng'ang'a Kanyi

Court of Appeal
5 April 2006
1,729 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 Shs.3 million injury award, confirming courts can compensate lost earning capacity even when it was never specifically pleaded.

What this practically means

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Executive summary

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This is a first appeal against a High Court award of Shs.3,020,000/= in damages for personal injuries sustained by the respondent in a road traffic accident. Liability had already been resolved in the respondent's favour in a prior appeal (Civil Appeal No. 52 of 1999), and the case was remitted to the High Court for assessment of damages only. At the resumed trial, damages were assessed on the basis of three medical reports and written submissions, without fresh oral evidence, comprising Shs.2,000,000/= general damages for pain, suffering and loss of amenities, Shs.420,000/= for loss of earning capacity, and Shs.600,000/= for future medical treatment. The appellants advanced five grounds attacking the quantum, including the multiplier of 15 years and the absence of a pleaded basis for loss of earning capacity. The Court of Appeal, per a single judgment of the court (Tunoi, Githinji and Deverell JJA), reviewed the medical evidence showing a compound depressed skull fracture, surgery, prolonged hospitalisation, post-traumatic epilepsy requiring lifelong medication and severe residual incapacity. It held that the assessment of damages is an exercise of the trial judge's discretion, that the award was neither extravagant nor oppressive, and that loss of earning capacity, being a prospective loss forming part of general damages, need not be specifically pleaded, following Butler v Butler and distinguishing Kantilal Khimji. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the award of Shs.2,000,000/= general damages for pain, suffering and loss of amenities was excessive or an erroneous estimate
  2. 2.Whether the trial judge failed to adequately consider the medical report of Mr. M. A. Sheikh
  3. 3.Whether there was a basis for the award of Shs.420,000/= for loss of earning capacity although not specifically pleaded
  4. 4.Whether the multiplier of 15 years was erroneous
  5. 5.Whether the total award was inordinately high and against the evidence

Key legal issues

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01

Whether the general damages award of Shs.2,000,000/= was excessive

Holding

The award was not excessive; the respondent suffered a severe head injury with skull deformity, post-traumatic epilepsy and severe residual incapacity.

Reasoning

The court reviewed the three medical reports showing compound depressed skull fracture, surgery, 4½ months hospitalisation, unsightly scar, post-traumatic epilepsy requiring lifelong medication and reduced earning capacity. The trial judge considered the evidence, reports, submissions and authorities. The appellate court found no misapplication of principle and no erroneous estimate, so declined to interfere with the discretionary award.

p. 3
02

Whether loss of earning capacity had to be specifically pleaded and proved

Holding

Loss of earning capacity is part of general damages and does not have to be specifically pleaded; the award of Shs.420,000/= was justified.

Reasoning

Relying on Butler v Butler, the court held that loss of earning capacity is a prospective financial loss awarded as general damages. Kantilal Khimji concerned loss of earnings from accident to trial, which is special damages requiring pleading; it did not decide that loss of earning capacity must be pleaded. The respondent's unchallenged evidence as a farmer supported the multiplicand of Shs.3,500/=.

p. 3
03

Whether the multiplier of 15 years and the future medical treatment award were erroneous

Holding

The multiplier and the Shs.600,000/= future medical treatment award were reasonable given the respondent's age, lifelong medication and annual drug costs.

Reasoning

The trial judge considered that the respondent was taking three tablets daily, the estimated annual cost of drugs of Shs.30,000–35,000, and his age of 50 years. Weighing the nature of the injuries, cost of drugs and other imponderables, the court found the future medical treatment award eminently reasonable and saw no basis for disturbing the multiplier.

p. 4

Legal principles established

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  • Loss of earning capacity is a prospective financial loss awarded as part of general damages and need not be specifically pleaded.
  • Assessment of damages for personal injuries is an exercise of discretion by the trial judge, dependent on the peculiar facts of each case.
  • An appellate court will not disturb a damages award unless it is shown the trial judge misapplied relevant principles or the award is so high as to be an erroneous estimate.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

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 Nakuru
H.C.C.C. No. 827 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Relief refused

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Interference with the award of general damages of Shs.2,000,000/= for pain and suffering and loss of amenities

Trial judge applied relevant principles; award not an erroneous estimate given severe head injury and residual incapacity

p. 3

Setting aside the award of Shs.420,000/= for loss of earning capacity

Loss of earning capacity is a prospective loss awarded as general damages and need not be specifically pleaded; evidence supported the multiplicand

p. 3

Interference with the award of Shs.600,000/= for future medical treatment

Award took into account daily medication, annual drug cost and the respondent's age; it was eminently reasonable

p. 4

Costs

Appeal 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.

The assessment of damages for personal injuries is a difficult task. The court is required to give a reasonable award which is neither extravagant nor oppressive.
p. 3Standard for assessment of personal injury damages
The loss of earning capacity is a prospective financial loss which is awarded as part of general damages and which does not have to be specifically pleaded
p. 3Pleading requirement for loss of earning capacity
That case merely decided that a claim for loss of earnings from the date of the accident to the date of the trial are special damages which should be specifically pleaded.
p. 3Distinction between loss of earnings (special damages) and loss of earning capacity (general damages)
For those reasons, the appeal has no merit. We dismiss it with costs to the respondent.
p. 4Final orders - dismissal of appeal

Issues in the judgment

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minor

Githaiga medical report date given inconsistently as 2nd February, 2001 and 22nd February, 2001

minor

Judgment refers to 'the age of the appellant' where the respondent's age is meant

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, "Sosphinaf Company Limited & James Gatiku Ndolo v Daniel Ng'ang'a Kanyi", Case Analysis (2006). Civil Appeal No. 315 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/285/eng@2006-04-05

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