Board of Trustees of the Anglican Church of Kenya Diocese of Marsabit v Jarso (Civil Appeal 7 of 2020) [2025] KECA 2169 (KLR)
The bottom line
#The Court of Appeal upheld all injury awards against the Anglican Church of Kenya, confirming that future medical costs and lost earnings don't need special pleading in Kenya.
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 claim for future medical expenses in the sum of Kshs.500,000 was pleaded or proved or whether there was need to plead and prove it
- 2.Whether the Judge erred in making an award for loss of future earnings of Kshs.2,400,000 which was neither pleaded nor proved
- 3.Whether the award of Kshs.2,500,000 general damages for pain, suffering and loss of amenities was excessive
- 4.Who should bear the costs of the appeal
Key legal issues
#Whether the claim for future medical expenses needed to be specifically pleaded and proved
The claim was pleaded in the amended plaint and proved through an unchallenged medical report produced by consent; the ground of appeal failed.
The amended plaint particularised future treatment including orthopedic follow-up, occupational therapy, physiotherapy and refashioning of fractured limbs at Kshs.500,000 per operation. Dr. Mwanzia's medical report, produced by consent, detailed the injuries and recommended the future treatment, and the appellant called no medical evidence to counter it. Both courts below had found the claim pleaded and proved, and this Court associated itself with that finding.
Whether the award for loss of future earnings was pleaded and proved
The claim was pleaded as part of the plaint particulars and the award as varied on first appeal (Kshs.10,000 x 20 x 12) was reasonable; the complaint lacked merit.
The claim was pleaded in the amended plaint under particulars of loss of amenities and loss of future earning capacity. The respondent testified that his injuries incapacitated him from competing in the job market. The trial magistrate, finding no pay-slip, applied the minimum wage of Kshs.10,000 with a multiplier of 27 years, which the Judge reduced to 20 years. Although the Judge assigned no reasons for the reduction, there being no cross-appeal, the Court found the resulting award reasonable.
Whether the award of Kshs.2,500,000 for pain, suffering and loss of amenities was excessive
The award was neither inordinately high nor made on wrong principles; it was reasonable in the circumstances and affirmed.
Applying the settled principle in Butt v. Khan, an appellate court will not disturb a damages award 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. The respondent had suffered multiple serious fractures requiring future operations. The magistrate considered inflation, passage of time and comparable awards, and the Judge on first appeal found the figure reasonable. This Court found no basis for interference.
The scope of a second appeal under section 72 of the Civil Procedure Act
A second appeal lies only on matters of law; the Court does not reopen findings of fact unless the lower courts considered matters they should not have, omitted matters they should have considered, or reached a perverse decision.
Section 72 of the Civil Procedure Act limits a second appeal to grounds that the decision is contrary to law, failed to determine a material issue of law, or involved a substantial procedural error. The Court, following its own precedent in Leting v. Express (K) Ltd and the earlier line of authority, confined itself accordingly and reviewed the quantum determinations only for errors of law or principle.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless the 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.
- A claim for loss of earning capacity, being a prospective financial loss awarded as part of general damages, need not be specifically pleaded; likewise a claim for future medical treatment is part of general damages not requiring specific pleading.
- Where there is no cross-appeal, an appellate court will not disturb a finding of the court below even where its reasoning appears difficult to follow.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal and of the courts below are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Marsabit
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal from the High Court on matters of law)
Relief refused
#Setting aside the judgment and decree of the courts below
No merit found in any of the three grounds of appeal
Substitution of the award for future medical expenses with nil
The claim was found pleaded and proved; the medical report was produced by consent and unchallenged
Setting aside the award for loss of future earnings
The claim was pleaded and the award as varied on first appeal was found reasonable
Reduction of the award for pain, suffering and loss of amenities to Kshs.800,000
The award of Kshs.2,500,000 was neither inordinately high nor arrived at on wrong principles
Costs
The appeal is dismissed with costs to the respondent here and below.
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.
on a second appeal, the Court confines itself to matters of law only, unless it is shown that the 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.
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 (see Butler v. Butler [1984] KLR 225).
We have not found any merit in any of the grounds of appeal. This appeal is dismissed with costs to the respondent here and below.
However, as there is no cross-appeal the less we say on this the better.
Issues in the judgment
#The judgment numbers two consecutive paragraphs as '7' and then '8', so paragraph numbering is duplicated/jumbled in the middle of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kavuti v King’oo t/a African Classic Bakery & 3 others (Civil Case 166 of 2018) [2026] KEMC 86 (KLR)[2026] KEMC 86 (KLR)17 Apr 2026applied
- Matheka v Matiliku & another (Civil Case 65 of 2018) [2026] KEMC 79 (KLR)[2026] KEMC 79 (KLR)7 Apr 2026followed
Cite this brief
#Cite this brief
Caselaw, "Board of Trustees of the Anglican Church of Kenya Diocese of Marsabit v Jarso (Civil Appeal 7 of 2020) [2025] KECA 2169 (KLR)", Case Analysis (2025). Second appeal from Principal Magistrates' Court at Marsabit; first appeal decided 15th October 2018 (not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2169/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.