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Court of AppealPartially AllowedNot stated in the judgment (memorandum of appeal dated 6th February 2019)

Onunga v Jonathan (Civil Appeal 20 of 2019) [2024] KECA 46 (KLR)

Court of Appeal of Kenya
25 January 2024
3,699 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a Kshs 1,000,000 injury award, ruling higher courts cannot reduce damages unless the trial court made a clear legal error.

What this practically means

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Executive summary

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This was a second appeal from the High Court at Kisumu, which had reduced the general damages awarded to Silvia A. Onunga by the Chief Magistrate's Court from Kshs 1,000,000 to Kshs 400,000 for injuries sustained in a road traffic accident on 6th December 2013. Liability had been settled by consent at 70:30 in Silvia's favour. The sole issue before the Court of Appeal was whether the learned Judge was right in interfering with the quantum of damages awarded by the trial court. The Court restated the principles for appellate interference with quantum, drawing on Kemfro Africa, Butt v Khan, Shabani and Gitobu Imanyara: interference is justified only where the trial court considered an irrelevant factor, omitted a relevant one, applied a wrong principle, or reached an award so inordinately high or low as to be a wholly erroneous estimate. The Court found that the trial magistrate had properly used the Eldoret Steel Mills Limited v Esipila award as a comparator, correctly adjusted it for inflation computed from the date of the original trial court judgment (rather than the date of appellate affirmation, as the High Court Judge had erroneously done), and properly accounted for the greater gravity of Silvia's injuries, her disability being assessed at 85% as against 35% in the comparator. Some injuries pleaded were not established by the medical evidence. Concluding that there was no justification for the High Court's interference, the Court allowed the appeal, set aside the High Court judgment dated 20th November 2017, reinstated the trial magistrate's award of Kshs 1,000,000 as general damages, and awarded Silvia the costs of the appeals in both the High Court and the Court of Appeal. The judgment is a single judgment of the full bench of three Judges of Appeal delivered at Kisumu on 25th January 2024.

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 of the High Court was right in interfering with the quantum of damages that was awarded by the trial court as general damages

Key legal issues

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01

Principles governing interference by an appellate court with the quantum of damages awarded by a trial court

Holding

The High Court Judge wrongly interfered with the trial magistrate's award because the magistrate proceeded on the correct principles, took into account relevant factors (including inflation calculated from the date of the original trial court judgment), and the award was not so inordinately high as to justify interference.

Reasoning

The Court reiterated the Kemfro Africa and Butt v Khan principles: interference is justified only where the trial court considered an irrelevant factor, ignored a relevant one, applied wrong principles, or reached an inordinately high or low award amounting to a wholly erroneous estimate. The trial magistrate properly used the Eldoret Steel Mills award as a comparator, adjusted for inflation and the greater gravity of injuries (85% disability versus 35% in the comparator), and gave reasons. The High Court Judge misdirected himself by computing inflation from the date of the appellate affirmation rather than the original trial judgment. No basis for interference existed.

p. 7
02

Comparability of injuries in the assessment of general damages

Holding

Comparable injuries should be compensated by comparable awards; the gravity of injuries, including assessed permanent disability, is a relevant factor in selecting and adjusting comparator awards, as is inflation and the value of the shilling.

Reasoning

The Court endorsed the approach in Stanley Maore v Geoffrey Mwenda and Ugenya Bus Service v Gachoki that awards should reflect the nature and gravity of injuries, that no two cases are exactly alike, and that current economic conditions must inform the assessment. The trial magistrate properly distinguished the comparator case on the degree of permanent disability (35% against 85%) and accounted for inflation over the roughly eleven years between the comparator award and his own judgment.

p. 5

Legal principles established

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  • An appellate court may only interfere with an award of damages where the trial court took into account an irrelevant factor, left out a relevant one, applied a wrong principle, or where the amount is so inordinately high or low as to be a wholly erroneous estimate of the damage.
  • In assessing general damages, comparable injuries should as far as possible be compensated by comparable awards, bearing in mind that no two cases are exactly alike.

Court orders

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  1. 1.Appeal allowed and the judgment of the learned Judge dated 20th November 2017 set aside
  2. 2.Award of Kshs 1,000,000 made by the trial magistrate in his judgment dated 20th January 2017 reinstated
  3. 3.Silvia, having succeeded in the appeal, to have the costs of the appeals in both the High Court and this Court

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
Not stated
Jurisdiction invoked
Second appeal under the applicable appellate provisions of the Civil Procedure Act; specific provision not stated in the judgment

Relief refused

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No relief refused; the appellant obtained substantially all the relief sought

The appeal was allowed in its entirety and the trial court's award reinstated

Costs

Silvia having succeeded in this appeal she shall have the costs of the appeals in both the High Court and this Court.

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 principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
p. 3Principles for appellate interference with quantum of damages
we find that there was no justification for the learned Judge to interfere with the award as the trial magistrate proceeded on the correct principles and took in to account relevant factors, and the award to Silvia was not so inordinately high as to justify interference.
p. 7High Court's interference with trial magistrate's award unjustified
i. We allow the appeal and set aside the judgment of the learned Judge dated 20th November, 2017. ii. We reinstate the award of Kshs 1,000,000/- that was made by the trial magistrate as per his judgment dated 20th January 2017 iii. Silvia having succeeded in this appeal she shall have the costs of the appeals in both the High Court and this Court.
p. 7Final orders of the Court

Issues in the judgment

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minor

The judgment inconsistently renders the comparator case name, citing it variously as 'Eldoret Steel Mills Limited v Elphas Victor Espila', 'Eldoret Steel Mills Limited v Esipila', and 'Eldoret Steel Mill Limited v Elphan Espila'.

minor

Paragraph 12 of the High Court judgment as extracted contains an incomplete sentence ('The parties agree that the extent to which an appellate court may interfere with an award of damages (sic).'), apparently a transcription defect.

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, "Onunga v Jonathan (Civil Appeal 20 of 2019) [2024] KECA 46 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of appeal dated 6th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/46/eng@2024-01-25

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