[1998] KECA 180 (KLR)
The Court of Appeal found 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 such loss, and the trial judge's assessment of damages for pain, suffering, and loss of amenities was appropriate. The court also held that the...
Source-derived case information.
- Citation
- [1998] KECA 180 (KLR)
- Parties
- Appellant: Moses Kipkolum Kogo; Respondent: David Malakwen
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 74 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- AB Shah, E Owuor
- Legal Topics
- Personal Injury, Damages Assessment, Loss of Earnings, Appeals Procedure
- 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 due to lack of evidence.
- 2 Whether the trial judge's decision was against the weight of the evidence.
Ratio Decidendi
The Court of Appeal found 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 such loss, and the trial judge's assessment of damages for pain, suffering, and loss of amenities was appropriate. The court also held that the ground of appeal alleging the decision was against the weight of evidence was too vague and did not comply with the procedural requirements for appeals. Upon a fresh review of the evidence, the appellate court found no error in the trial judge's reasoning or conclusion and affirmed the judgment in its entirety.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT NAIROBI
civ app 74 of 98
MOSES KIPKOLUM KOGO ................................ APPELLANT
AND
DAVID MALAKWEN .....................................RESPONDENT
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