Automated Summary
Key Facts
Hussein Sambur Hussein (Appellant) was injured on November 8, 2018, at Mombasa Port when struck by a vehicle driven by Shariff A. Abdulla Hussein (3rd Respondent). He sustained fractures of the right tibia and fibula, dislocation of the right ankle, and an 18% permanent disability. The trial court awarded Kshs.40,000 for general damages and Kshs.700,000 for reduced earning capacity. The Appellant appealed the general damages, and the High Court allowed the appeal, increasing the award to Kshs.600,000, while dismissing the cross-appeal on reduced earning capacity.
Issues
- The court addressed the Appellant's entitlement to a Kshs.700,000/= award for reduced earning capacity. The Respondents argued that this claim required documentary proof of salary reduction, but the court ruled that reduced earning capacity is part of general damages and does not need such specific evidence. The court upheld the award, recognizing the Appellant's diminished work capacity due to his injuries.
- The court examined whether the Kshs.40,000/= general damages award for the Appellant's injuries (fractures of the right tibia and fibula, dislocation, and 18% permanent disability) was inordinately low. The Appellant argued the award was too low compared to precedents, while the Respondents supported the original amount. The court found the award manifestly low and increased it to Kshs.600,000/=
Holdings
- The court allowed the Appellant's appeal regarding general damages for pain, suffering, and loss of amenities, increasing the award from Kshs.40,000 to Kshs.600,000, apportioned at 30%:70% liability.
- The Respondents' cross-appeal challenging the award for reduced earning capacity was dismissed, upholding the Kshs.700,000 award as justified under general damages.
Remedies
- The Appeal dated 22nd May, 2020 is allowed and the Appellant is awarded Kshs.600,000/= to be calculated at the liability set by the trial court of the ratio 30%:70%.
- The Cross-Appeal filed by the Respondents dated 4th November, 2020 is hereby dismissed.
- Costs of the Appeal be borne by the Respondents. The judgment was delivered virtually on 27th January 2022 with no appearance by either party.
Monetary Damages
1400548.00
Legal Principles
- The Respondents argued the Appellant failed to discharge his burden of proof for reduced earning capacity. The court held that while documentary evidence (e.g., payslips) is ideal for special damages, general damages like reduced earning capacity require proof on a balance of probabilities, which the Appellant sufficiently demonstrated.
- The court clarified that reduced earning capacity, as part of general damages, must be proved on a balance of probabilities. This differs from loss of future earnings, which requires strict documentary proof. The Appellant's claim for reduced earning capacity was upheld based on medical evidence of 18% disability.
- The appellate court may interfere with quantum of damages if the trial court misapplied principles or misapprehended evidence, as outlined in Butt vs. Khan [1981] KLR 349. The court re-evaluated the trial court's award of general damages for pain and suffering, finding it manifestly low due to misapprehension of the evidence.
- The case involves a duty of care breach by the 3rd Respondent, who negligently drove a motor vehicle, causing injury to the Appellant. The court assessed the nature of the injuries (fractures, dislocation, permanent disability) to determine compensation for pain, suffering, and loss of amenities.
Precedent Name
- Joseph Musee Mua -vs- Julius Mbogo Mugi & 3 Others
- Ahmed Mohamed -vs- Abdulhafidh Mohamed Banragah
- Cecilia W. Mwangi & Another -vs- Ruth W. Mwangi
- Daniel Otieno Owino & Another -vs- Elizabeth Atieno Owuor
- S J -vs- Francesco Di Nello & Another
- Douglas Kalafa Ombeva -vs- David Ngama
- Stephen Kamau Wanderi & Another -vs- Gladys Wanjiku Kungu
- Civicon Limited -vs- Richard Njomo Omwancha & 2 Others
- Kimatu Mbuvi T/A Kimatu Mbuvi & Bros -vs- Augustine Munyao Kioko
- Stephen Kinini Wang'ondu -vs- The Ark Limited
- Butt -vs- Khan
- Boniface Waiti & Another -vs- Michael Kariuki Kamau
- Alphonce Muli Nzuki -vs- Brian Charles Ochuodho
- Tirus Mburu Chege & Another -vs- J K N (minor suing through the next friend and mother D W N & Another
- Mwaura Muiruri -vs- Suera Flowers Limited & Another
- Beatrice Anyango Okoth -vs- Rift Valley Railways (Kenya) Limited & Another
- Catholic Diocese of Kisumu -vs- Sophia Achieng Tete
Judge Name
D. O. Chepkwony
Passage Text
- I therefore find that there is merit in the Appellant's claim and maintain the award of Kshs.700,000/= awarded by the trial court.
- I find that the award of Kshs.40,000/= was manifestly low and proceed to set it aside... this court finds the sum of Kshs.600,000/= as general damages for pain, suffering and loss of amenities and proceed to award the same. The same to be calculated to the apportioned liability of the Appellant and 3rd Respondent at the ratio of 30:70.