[1998] KECA 11 (KLR)
The Court of Appeal held that the trial judge was correct in dismissing the claim for loss of earnings due to lack of evidence. The appellant failed to provide proof of actual loss, and the court found no error in the trial judge's assessment of damages for pain, suffering, and loss of amenities. The court also...
Source-derived case information.
- Citation
- [1998] KECA 11 (KLR)
- Parties
- Appellant: Moses Kipkolum Kogo; Respondent: David Malakwen
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 74 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Personal Injury, Motor Vehicle Accident, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kipkolum Kogo
Appellant
David Malakwen
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial judge erred in dismissing the appellant's claim for loss of earnings.
- 2 Whether the trial judge's decision was against the weight of the evidence.
Ratio Decidendi
The Court of Appeal held that the trial judge was correct in dismissing the claim for loss of earnings due to lack of evidence. The appellant failed to provide proof of actual loss, and the court found no error in the trial judge's assessment of damages for pain, suffering, and loss of amenities. The court also emphasized that vague grounds of appeal that do not specify points wrongly decided are not permissible under the rules. Upon reviewing the entire evidence, the appellate court found the trial judge's decision to be sound and without error in principle or fact. Accordingly, the appeal was dismissed with costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: SHAH, LAKHA & OWUOR, JJ.A.)
CIVIL APPEAL NO. 74 OF 1998
BETWEEN
MOSES KIPKOLUM KOGO ................................ APPELLANT
AND
DAVID MALAKWEN ......................................... RESPONDENT
(Being an appeal from the Judgment/Decree of the High Court of Kenya at Nairobi (Justice J.V. Juma) dated the 31st of March, 1998
in
H.C.C.C. NO. 4925 OF 1989)
*****************
JUDGMENT OF THE COURT
This is an appeal by the plaintiff from a judgment of the superior court (Juma, J.) given on March 31, 1998 whereby he entered judgment for the plaintiff in the sum of K.Shs.801,753/=.
The facts giving rise to this appeal may be briefly stated. The plaintiff was travelling as a passenger in the defendant's motor vehicle along Kisumu/Nairobi Road around May 25, 1988 when the defendant's vehicle collided with a parked lorry. As a result, the plaintiff was seriously injured and had a phonological disorder of speech resulting from impaired tongue movements due to a permanent injury in the segment of motor speech area of the brain. His reading was also affected by the injury to his brain.
After a full trial and having considered all that was before him, the learned judge at first instance awarded the plaintiff a total sum of K.Shs.750,000/= for pain, suffering and loss of amenities.
Being dissatisfied, the plaintiff has appealed to this Court and two grounds of appeal have been preferred. First, it is contended that the learned judge erred in dismissing the appellant's claim for loss of earnings. But there was no evidence for such a loss and, in our judgment, the learned judge was quite right in disallowing this claim for lack of proof.
The second complaint raised in the memorandum of appeal is that the learned judge's decision is against the weight of the evidence. We hardly deal with such a ground of appeal. Rule 84 of the Rules of this Court requires that a memorandum of appeal shall set forth concisely the ground of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided. This rule has been contravened. The proposal ground is vague and cannot be entertained. As was said in RIANO VS. R. 1960 E.A. 960 when an appellant is represented by Counsel, he will not be allowed to argue any point under a general ground of appeal.
In any event, in the discharge of our duty as the first appellate court, we have subjected the whole of the evidence to a fresh and exhaustive scrutiny and are satisfied that there was no error in principle or otherwise committed by the learned judge. His decision is plainly right. For this reason, the appeal fails and it is dismissed with costs.
Dated and delivered at Nairobi this 5th day of November, 1998.
A.B. SHAH
...............
JUDGE OF APPEAL
A.A. LAKHA
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR