Nyale v. Chezi and One Other, Civ. App. 8 of 1971, E. A. C. A. 18/8/1971; Spry, V. P., Duffs P. and Lutta, J. A.

Nyale v. Chezi and One Other, Civ. App. 8 of 1971, E. A. C. A.  18/8/1971; Spry, V. P., Duffs P. and Lutta, J. A.

The first respondent, a minor sung through he father and next friend, sued the driver and the owner of a bus, registration number KAY 453, claiming damages for personal injuries. The appellants joined the owner of another bus, KAU 648, by a third party notice. The facts are that the respondent was a passenger in KAU 648. The bus stopped and the respondent descended and was struck by KAY 453. This bus had been traveling behind KAU 4\648. The judge found that the driver of both buses were negligent ad he apportioned liability as between the appellants and third party in the ratio of 85 to 15. He awarded damages of ₤ 4,677 against the appellants jointly and severally, with the third party’s liability for contribution ₤ 701. 10. 6. Against this decision the appellants appealed claiming that the third party should have been held solely liable or at least liable to a considerably greater extent and asked for the consequential revision of the award. The third part cross- appealed, claiming that the appellants should have been held solely liable. Both the appeal and the cross-appeal

Contain allegations that the award of damages was grossly excessive. After reviewing the evidence, the Court of Appeal found that the driver of KAU 648 was not negligent. On the issue of quantum of damages:

            Held: (Spry V. P.) (1) “The real question ………… is whether the overall award of over ₤ 4, 000 is excessive. The plaintiff was a girl between 17 and 18 years of age at the time of the accident. She lived in fairly humble circumstances, helping to cultivate her father’s shamba, fetching wood and water, tending the cattle, cooking and performing other domestic work. She was engaged to be married, but following the accident the engagement was broken off. The dowry had been agreed at seven goats and twenty head of cattle. Of these, only the goats had been delivered and they have been returned. The surgeon testified that he plaintiff must have suffered severe pain and I do not think anyone could doubt that. Her matrimonial prospects re reduced, since she will be unable to perform many of the tasks expected of a wife in her sphere of society. I am not aware of any East African case sufficiently similar to afford any real assistance. In my view, the damages were so excessive as to justify interference. I should have thought a total award of Shs. 50,000 would have been ample recompense, so far as money can compensate for such an injury.” (2) “The other members of the court consider that interference would not be justified. It is only wit reluctance that we interfere with the quantum of awards made by trial judges, and in the circumstances I shall not dissent. I agree with the proposed order.”  (3) Appeal dismissed.