KITAVI V COSATAL BOTTLERS LIMITED [1985] KECA 122 (KLR)
The bottom line
#Kenya's Court of Appeal nearly doubled a blind worker's compensation, ruling the trial judge relied on outdated foreign awards instead of current Kenyan ones.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the general damages of Kshs 250,000 awarded for pain, suffering and loss of amenities for total blindness was so inordinately low as to be a wholly erroneous estimate warranting interference by the appellate court
Key legal issues
#Whether the appellate court may interfere with the quantum of general damages for total blindness
Yes. The award of Kshs 250,000 was so inordinately low as to be a wholly erroneous estimate, warranting substitution with Kshs 475,000.
The trial judge relied significantly on a foreign English award (Paris) which was about 33 years out of date, and on insufficient recent local awards. Taking into account the catastrophic nature of total blindness, comparative local awards for loss of one eye and for loss of both legs, inflation, and the appellant's circumstances, the figure of Kshs 250,000 fell below any reasonable bracket and cried out for an increase.
The applicable principles for disturbing a damages award on appeal
An appellate court interferes only on the classic grounds of wrong factors considered, omitted factors, or an award so high or low as to be an erroneous estimate; rigid mathematical ratios should be eschewed.
Following Chanan Singh and Butt v Khan, the court reaffirmed the East African standard for appellate interference with damages. It endorsed providing guidelines and brackets for consistency between plaintiffs, while stressing that awards ultimately depend on the facts of each case, and declined to adopt the proposed 4-to-5-times ratio as a rigid rule.
The comparative severity of total blindness against loss of limbs
Total blindness, whether from loss of both eyes or of the only good eye, is a more serious injury than loss of both legs, and awards must reflect that hierarchy.
Hancox and Nyarangi JJA reasoned that artificial limbs can restore mobility and some independence, whereas blindness deprives the victim of virtually all the joys and pleasures of life and of earning opportunities. An award for blindness lower than the Kshs 400,000 awarded for loss of both legs could not stand.
Legal principles established
#- An appellate court will only disturb an award of general damages where the trial judge took into account a factor he ought not to have, failed to take into account something he ought to have, or where the award is so high or so low that it amounts to an erroneous estimate.
- An award for total blindness, whether through loss of both eyes or loss of the only good eye, must be substantially greater than awards for the loss of one eye, and generally greater than awards for the loss of both legs.
- Trial judges should confine themselves to local awards, or those of neighbouring countries with roughly similar social and economic conditions, when assessing general damages; foreign awards are useful only for the factors to be taken into account.
- Awards must reflect current monetary values and keep abreast of inflation; awards of the 1970s are of insignificant help without adjusting for the contemporary value of money.
- Fair compensation is assessed with moderation and in conformity with local judicial practice; guidelines and brackets aid consistency, but each award depends on the facts of the case and cannot be rigidly standardized.
Court orders
#- 1.Appeal allowed with costs
- 2.The award of Kshs 250,000 as general damages for pain, suffering and loss of amenities made by the learned judge is set aside
- 3.A substituted award of Kshs 475,000 as general damages for pain, suffering and loss of amenities
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. The only question was whether the general damages award of Kshs 250,000 for pain, suffering and loss of amenities was too low. He held the award was so inordinately low as to be a wholly erroneous estimate, partly because the trial judge relied on an outdated English award and insufficient recent local awards, and proposed the award be increased to Kshs 475,000.
Kshs 250,000 in 1984 for the injuries the appellant suffered was, in my respectful view, so inordinately low an award for general damages that it was a wholly erroneous estimate and it cries out for an increase.p. 5
Wrote the judgment
In a separate concurring judgment, held that total blindness through loss of the only good eye is an injury of the utmost severity, more serious than even loss of both legs, and agreed the award of Kshs 250,000 was entirely inadequate and should be replaced with Kshs 475,000.
I agree that Kshs 475,000 is the right figure to be substituted for it, remembering that no money award can ever compensate the appellant for his tragic disability.p. 6
Wrote the judgment
In a separate concurring judgment, held that loss of both eyes or of the remaining good eye is far worse than loss of both legs, and that an award of Kshs 250,000, being less than the Kshs 400,000 awarded for loss of both legs, was clearly erroneous and warranted interference. He agreed with Kneller JA's figure and order as to costs.
In this case the award of Kshs 250,000 which is less than Kshs 400,000 for loss of both legs etc. is quite clearly an erroneous one warranting interference.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- Bhandari J (trial suit, judgment of April 30, 1984)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the quantum of general damages (appeal as of right from the High Court; memorandum of appeal dated June 5, 1984)
Relief refused
#Appellant's request that the award be reassessed at Kshs 600,000 to Kshs 750,000
The court settled on a moderate award of Kshs 475,000, eschewing rigid ratios and bearing in mind moderation, the appellant's age and income, and the rarity of total blindness injuries
Costs
Appeal allowed with costs; the appellant is to have the costs of the appeal from the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Hancox JA and Nyarangi JA agree so the order of the court is that the appeal is allowed with costs and the award of Kshs 250,000 as general damages for pain, suffering and loss of amenities made by the learned judge is set aside and one of Kshs 475,000 substituted.
The Court of Appeal of Kenya, then should, as its fore-runners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so high or so low that it amounts to an erroneous estimate.
I would eschew ratios, which smack of a rigid mathematical approach, though it is plainly right for the Court of Appeal to try to provide guidelines for the standard range of damages for particular injuries
Kshs 250,000 in 1984 for the injuries the appellant suffered was, in my respectful view, so inordinately low an award for general damages that it was a wholly erroneous estimate and it cries out for an increase.
loss of both eyes is far worse than loss of both legs.
Issues in the judgment
#The case title in the report reads 'Cosatal Bottlers Limited' but the judgment body repeatedly names the respondent 'Coastal Bottlers Limited', an apparent typographical error in the reported heading.
The judgment contains an internal typographical discrepancy in the memorandum of appeal quoting Munkman: the figure is rendered as '?9000' with a stray punctuation mark in place of a currency symbol.
The memorandum of appeal is described as 'of June 5, 1984' but the trial judgment was given on April 30, 1984 and trial evidence was recorded 'at the end of June 1982'; the internal chronology of the report is imprecise.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KITAVI V COSATAL BOTTLERS LIMITED [1985] KECA 122 (KLR)", Case Analysis (1985). Civil Appeal No 69 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/122/eng@1985-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.