[1997] KECA 47 (KLR)
The Court of Appeal found that the general damages awarded by the High Court for pain, suffering, and loss of amenities were excessive in light of the injuries sustained and comparable case law. The court determined that a reduction by half to KES 600,000 was appropriate. However, the court upheld the award for...
Source-derived case information.
- Citation
- [1997] KECA 47 (KLR)
- Parties
- Appellant: Boniface Musyoka Ndolo; Respondent: Pauline Katonge Musau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 1996
- Procedural Posture
- Civil Appeal / Appeal on Quantum of Damages
- Outcome
- Appeal allowed in part; decree varied by reducing general damages by KES 600,000; award for future operations upheld; respondent to pay half the costs of the appeal.
- Judges
- JE Gicheru
- Legal Topics
- Personal Injury, Assessment of Damages, Motor Vehicle Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Musyoka Ndolo
Appellant
Pauline Katonge Musau
Respondent
Procedural Posture
Civil Appeal / Appeal on Quantum of Damages
Legal Issues
- 1 Whether the quantum of general damages awarded for pain, suffering, and loss of amenities was excessive and should be reduced.
- 2 Whether the award for future medical operations was justified and reasonable.
Ratio Decidendi
The Court of Appeal found that the general damages awarded by the High Court for pain, suffering, and loss of amenities were excessive in light of the injuries sustained and comparable case law. The court determined that a reduction by half to KES 600,000 was appropriate. However, the court upheld the award for future medical operations at KES 1,200,000, finding no error in the trial judge's reliance on the medical evidence provided. The appeal was thus allowed in part, with the decree varied to reflect the reduced general damages, and the respondent ordered to pay half the costs of the appeal.
Court Disposition
Appeal allowed in part; decree varied by reducing general damages by KES 600,000; award for future operations upheld; respondent to pay half the costs of the appeal.
Orders
- The decree of the High Court is varied by reducing the general damages for pain, suffering, and loss of amenities to KES 600,000.
- The award of KES 1,200,000 for future operations is upheld.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, LAKHA, JJ.A & BOSIRE Ag. J. A.)
CIVIL APPEAL NO. 34 OF 1996
BETWEEN
BONIFACE MUSYOKA NDOLO..........................................APPELLANT
AND
PAULINE KATONGE MUSAU…………….........................SPONDENT
(Appeal from the Judgment and Decree of the High Court of Kenya at Machakos (Justice Osiemo) delivered on 29th November, 1995
IN
H. C. C. C. NO. 494 OF 1994)
*************************
JUDGEMENT OF THE COURT
This is an appeal against the quantum of damages awarded by the superior court (Osiemo, J.) to the respondent who was the victim of a motor accident. There is no appeal before us against liability as judgment on liability was entered by Consent and the suit proceeded only on assessment of damages.
On or about November 14, 1993 the respondent was travelling as a passenger in a motor vehicle registration No. KAA 183T when it was involved in an accident along Kangundo – Nairobi road. She sustained concussion of the brain, severe burns on the face, neck, trunk, arms and abdomen, severe scarring and formation of hypertrophic scars all over the body; severe contracture of the left side of the neck severely limiting the neck movements and severe contracture of the right elbow severely limiting movements severe and affected about 25% of the total body surface area –almost the same as in the cases cited.
Giving the best consideration to this aspect of the case, we thing that the figure of general damages for pain, suffering and loss of amenities should be reduced by one-half to shillings 600,000/=.
As for damages for future operations Dr. Musyoka estimated those costs at Shillings 1. 2 million. We have not been persuaded that this was in any way so high or that it was in any way erroneous. We on our part would not disturb this award.
In the result, the appeal is allowed to the extent that the decree issued by the superior court is varied by reducing the same by a sum of Shs. 600,000/=. The respondent shall pay to the appellant one-half of the costs of this appeal.
Dated and delivered at Nairobi this 7th day of March, 1997.
J. E. GICHERU
…………………….
JUDGE OF APPEAL
A. A. LAKHA
……………………..
JUDGE OF APPEAL
S.E.O. BOSIRE
……………………….
Ag. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR