IN THE COURT OF APPEAL FOR EAST AFRICA
AT NAIROBI
CORAM: (LAW, LUTTA, AND MUSTAFA, JJ.A.)
CIVIL APPEAL NO 21 OF 1970
BETWEEN
KIMOTHIA GITHENDU……………………………………….…...APPELLANT
AND
1. BHAMRA TYRE RETREADERS )
2. BHAMRA TYRE RETREADERS LIMITED)……………….....RESPONDENTS
(Appeal from a judgment and decree of the High Court of Kenya at Nairobi
(Harris, J.) Dated 4th February, 1970
In Civil Suit No. 794 of 1968)
19th November, 1970.
LAW, J.A.
The appellant, a workman in the employ of the respondents, suffered an unpleasant and painful accident at work when his right hand was caught in the rollers of a rubber-milling machine. As a result he has lost the index, middle and ring fingers, with consequently a substantial loss of function, of that hand; involving an undoubted substantial loss of earning power. He sued his employers for damages. The learned judge in the High Court found that the machine was dangerous and inadequately fenced, and awarded the appellant Shs. 20,000 as general damages for the injury suffered by him.
The appellant has appealed against this award, which Mr. Vohra, who appeared for him, has described as so low as to constitute a totally inadequate and erroneous estimate. Mr. Vohra has cited a number of English cases, in which higher damages were awarded or comparable injuries.
In my view awards made by foreign courts, although helpful as a guide, do not necessarily represent the standards which should prevail in Kenya, where the conditions relevant to the assessment of damages, such as wages, rents and cost of living generally may be very different. In the cases relied in by Mr. Vohra, damages awarded for comparable injuries go from £2,750 to £6,000. We do not know the earnings of the plaintiffs in those cases, but assuming they were not less than £12 a week, these awards represent from 5 to 10 years gross earnings.
In the case now under consideration, the appellant has been awarded a sum representing 8 years gross earnings at the time of the accident. Shs. 20,000 is a considerable sum for a man in his position. It is certainly not so manifestly low, in my opinion, as to require interference by this Court.
I would dismiss this appeal.
LUTTA, J.A
I agree.
MUSTAFA, J .A.
I also agree, and would only add a few words. The appellant is appealing against the quantum of damages. To be successful the appellant has to show that the sum awarded is so manifestly low that the assessment must have proceeded on a wrong principle. This he has failed to do. Indeed in my view the amount awarded is not low, but is reasonable and adequate. I would dismiss the appeal.
Mr. Malik: I ask for costs; it is unlikely that an order for costs will be enforced.
Mr. Vohra: I cannot resist.
Order
The appeal is dismissed, with costs.
SPRY, V-P.
I agree, and there will be an order in the terms proposed by Lutta, J.A.
