[2016] KEHC 1642 (KLR)
The court held that where parties have agreed on the apportionment of liability for a tortious act, both general and special damages must be reduced in accordance with the agreed contributory negligence ratio. The trial court erred by failing to subject the special damages to the 30% contributory negligence...
Source-derived case information.
- Citation
- [2016] KEHC 1642 (KLR)
- Parties
- Appellant: Transpares (K) Ltd; Respondent: Kariuki Wang'ondu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 161 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed in part
- Judges
- JK Mulwa
- Legal Topics
- Road Traffic Accidents, Contributory Negligence, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transpares (K) Ltd
Appellant
Kariuki Wang'ondu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in failing to subject the special damages award to the agreed contributory negligence ratio.
- 2 Whether the appellant is entitled to a reduction of the special damages in accordance with the apportionment of liability.
Ratio Decidendi
The court held that where parties have agreed on the apportionment of liability for a tortious act, both general and special damages must be reduced in accordance with the agreed contributory negligence ratio. The trial court erred by failing to subject the special damages to the 30% contributory negligence attributed to the appellant. Since the respondent conceded to the appeal, the court allowed the appeal and ordered that the special damages be reduced by 30%, resulting in a revised award. The general damages, already subjected to the correct ratio, were upheld. Costs of the appeal were awarded to the appellant.
Court Disposition
appeal allowed in part
Orders
- The trial court's award on special damages of Kshs.186,905 is reduced by 30% to Kshs.130,835.50.
- The award of Kshs.210,000 being 70% of the general damages awarded to the respondent is upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NUMBER 161 OF 2011
TRANSPARES (K) LTD...................................................APPELLANT
VERSUS
KARIUKI WANG'ONDU...............................................RESPONDENT
(Being an appeal from the Judgment/Decree of Hon. S. Soita, Principal Magistrate,Molo delivered on 16th August, 2011 in Molo PMCC No. 7 of 2011)
JUDGMENT
The appeal before the court is against the award of general damages to the appellant in the sum of Kshs.300,000/= and Kshs.186,905/= in special damages following a road traffic accident involving the appellant and the respondents motor vehicles registration No KAP 877T and KBK 2352/ZD 2917. Liability was by consent settled when parties apportioned the same at the ratio 30:70 in favour of the Respondent.
While the trial court subjected the award of general damages to the agreed contributory negligence, it failed to subject the special damages of Kshs.186,905/= to the same ratio giving rise to this appeal.
When the appeal came up for hearing before me on the 31st March 2016, the respondent through counsel Mr. Ombui conceded to the appeal, that the award of special damages be subjected to the contributory negligence of 30% by the appellant.
That being the case, the appeal succeeds, and the special damages of Kshs.186,905/= shall be reduced by 30%, which is Kshs.56,071. 50.
In the result, the Respondent is entitled to Kshs.130,833/50 in special damages.
The upshot of the above is that the appeal is allowed in the following manner.
1. That the trial court's award on special damages of Kshs.186,905 is reduced by 30% to Kshs.130,835. 50.
2. That the award of Kshs.210,000/= being 70% of the general damages awarded to the Respondent is upheld.
3. That costs of the appeal shall be borne by the Respondent.
Dated, signed and delivered in open court this 22nd day of September 2016
JANET MULWA
JUDGE