Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a reduced compensation award, confirming that early medical records outweigh later reports claiming worse injuries.
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 first appellate Judge misdirected himself in interfering with the trial magistrate's award of general damages
- 2.Whether the first appellate court erred in relying on the decision in Kenya Power & Lighting Co. Limited v Nehemia Wachira without factoring in inflation
- 3.Whether the injuries sustained were properly characterised as soft tissue injuries
- 4.What the proper scope of a second appeal is, confined to matters of law
Key legal issues
#Whether the first appellate court was entitled to interfere with the trial magistrate's award of general damages
The Judge was entitled to interfere: he re-evaluated the evidence, found the injuries were soft tissue injuries with full recovery, and found the magistrate had failed to consider relevant comparable authorities and had not exercised her discretion judiciously.
As a first appellate court, the Judge was duty bound to consider afresh the evidence and reach an independent decision. He found the injuries proven were soft tissue injuries and that the magistrate had failed to consider relevant legal authorities as guides for similar injuries, meaning she had not exercised her discretion judiciously. That constituted a sufficient basis for interference, and there was no misdirection. On a second appeal, the Court of Appeal defers to his figure rather than substituting its own.
The weight to attach to a late medical report particularising far graver injuries than contemporaneous records
The P3 form and treatment chits, being contemporaneous, best reflected the injuries sustained; injuries appearing only in a medical report prepared six months later, with no evidence linking them to the accident, could not be relied upon.
The P3 form and treatment chits recorded only bruising and blisters with no long-term damage. Dr. Ndegwa's report was prepared six months after the accident and, although it particularised greater injuries, no evidence was led showing the additional injuries related to the accident, nor any explanation of how the injuries multiplied within six months. Courts must be circumspect about which evidence to weight, guided by common sense, logic and experience.
The fate of the special damages of Ksh.6,265.00, on which the High Court judgment was silent
The High Court overlooked the special damages; the trial court's award of Ksh.6,265.00 was reinstated with interest from the date of filing suit.
The first appellate judgment was silent on special damages, apparently because the amount awarded was meager. The Court found no basis for interfering with the trial magistrate's award and reinstated it with interest from the date of filing the suit, notwithstanding dismissing the appeal on quantum of general damages.
Legal principles established
#- On a second appeal the Court confines itself to matters of law and will not disturb concurrent findings of fact unless the two courts below considered matters they should not have, or failed to consider matters they should have, or the decision is perverse.
- 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 in some material respect.
- Where a trial court's award of damages is within the range of comparable awards and based on correct principles, a first appellate court should not interfere merely because it would have awarded a different figure.
- Loss for which compensation is claimed must be caused by, and not be too remote a consequence of, the defendant's tort; injuries claimed solely on a late medical report with no evidence linking them to the accident may be discounted.
Court orders
#- 1.Appeal dismissed save for reinstatement of the Ksh.6,265.00 awarded as special damages, to attract interest from the date of filing the suit
- 2.Each party to bear its own costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Appeal No. 101 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the appellate structure of the Civil Procedure Act (matters of law only); no specific constitutional provision cited
Relief refused
#Setting aside of the High Court's reduction of general damages from Ksh.800,000.00 to Ksh.500,000.00
The learned Judge properly reanalysed the evidence and correctly found the trial magistrate had not exercised her discretion judiciously
Costs
Each party will bear its costs of this appeal.
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.
This Court on a second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse
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. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low
On the whole, the appeal has no merit and is hereby dismissed save for the reinstatement of the Ksh.6,265.00 awarded as special damages which will attract interest from the date of filing the suit. Each party will also bear its costs of this appeal. We so order.
Issues in the judgment
#Paragraph numbering is inconsistent - the number 7 is used twice for different passages, so paragraph references are unreliable.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR)", Case Analysis (2018). Civil Appeal No. 117 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/770/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.