Abdalla Hussein Kilo v Kombo Kassim Omar & another [1986] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal nearly tripled a road accident victim's compensation, ruling that refusing a risky operation doesn't reduce your damages.
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 trial judge's award of general damages of Kshs 30,000 was so low as to indicate a wholly erroneous estimate
- 2.Whether the trial judge erred in treating the appellant's working life as ending at retirement from the Game Department at 55
- 3.Whether the appellant's failure to undergo the recommended second operation constituted a failure to mitigate his loss
- 4.Whether the cost and pain of the further operation should be added to the award
Key legal issues
#The proper approach of an appellate court to an award of general damages said to be too low
The award must be shown to be based on an error of principle or to be so low as to be a wholly erroneous estimate; here the award of Kshs 30,000 for serious elbow injuries was manifestly too low.
Counsel agreed the duty of the court: interference requires misdirection or a wholly erroneous award. The trial judge made crucial findings - that the appellant had not lost his job and was partly to blame for refusing the operation - resting on assumptions rather than evidence. The conventional figure for such injuries, drawn from the cases cited, was around Kshs 60,000, and the costs and pain of the further operation had to be added, so the award was raised to Kshs 80,000.
Whether the plaintiff failed to mitigate by not undergoing the second operation
The appellant could not be criticised for refusing the operation because there was no evidence of its availability, risks or cost to him; mitigation does not require a plaintiff to take great risks with his person.
The burden of showing a failure to mitigate is on the defendant, and the standard demanded of a plaintiff is not high. The record did not show another doctor was available, whether the operation could be done at Coast General Hospital, its chances of success, or that the appellant could afford a private hospital. The trial judge's assumptions could not replace evidence, so the appellant's decision could not be said to be unreasonable.
Procedural confusion between 'formal proof' and assessment of damages after interlocutory or ex parte judgment
'Formal proof' is an anachronism from previous rules and blurs the issues; either interlocutory judgment has been entered and damages assessed, or there is an ex parte trial of liability and damages.
The suit was solely for damages; interlocutory judgment was entered on default of appearance and the matter set down for what was described as formal proof. The court noted no mention was made of the claim against the first respondent, who was never served, and warned of possible contradictory future decisions if that claim were pursued. The court also endorsed the trial court's advantage in seeing witnesses, qualified by the lack of clear evidence.
Legal principles established
#- An appellate court interferes with a trial judge's assessment of damages only where the judge misdirected himself or the award is so low as to indicate a wholly erroneous estimate; it does not interfere merely because it would have awarded more.
- The burden of proving damages lies on the plaintiff, but if a defendant contends the plaintiff failed to mitigate, the burden of showing that the plaintiff ought reasonably to have taken mitigating steps lies on the defendant.
- A plaintiff need not risk his person in a dangerous or risky surgical operation; refusing one that reasonable persons would regard as risky is not a failure to mitigate, but refusal of an operation that is not risky is.
- The term 'formal proof' has no basis in the current Civil Procedure Rules and should not be used; there is either interlocutory judgment with damages to be assessed, or an ex parte hearing of all issues.
Court orders
#- 1.Appeal allowed to the extent of varying the assessment of general damages
- 2.General damages for pain and suffering and loss of amenities (present and future) and for a future operation assessed at Kshs 80,000
- 3.Total damages of Kshs 81,010 (including special damages of Kshs 1,010) with judgment entered for that sum
- 4.Appellant awarded the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Hancox JA agreed with Platt Ag JA that the award of general damages was manifestly too low, setting out the make-up of the increased figure (Kshs 60,000 for pain and suffering and loss of amenities and Kshs 20,000 for the cost of the further operation including further pain and suffering), but declined to endorse the view that the term 'formal proof' is obsolete.
the learned judge’s award of Kshs 10,000 by way of general damages was manifestly too lowp. 1
Wrote the judgment
Delivered the principal judgment analysing the assessment of damages, the burden of proof of damages and mitigation, concluding the award was too low and proposing the appeal be allowed and the assessment varied to Kshs 80,000 general damages, totalling Kshs 81,010.
I would allow the appeal, vary the assessment and resulting judgment of the High Court, and assess the damages or pain and suffering and loss of amenities present and future, and for a future operation, at Kshs 80,000.p. 5
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Case No 26 of 1983
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court (appeal against assessment of damages)
Relief refused
#Increase beyond Kshs 80,000 for general damages
Conventional figure for this type of elbow injury drawn from the cases cited was around Kshs 60,000, with the operation costs and further pain added
Costs
The appeal allowed with costs - the appellant awarded the costs of the appeal
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.
It is common ground that these errors must be present, it not being a case where merely because the court would have made a somewhat higher award, it should therefore interfere.
the refusal of a physically injured plaintiff to undergo a dangerous and risky surgical operation does not constitute a failure to mitigate
There is no such thing as “formal proof” in the Civil Procedure Rules at present.
I would allow the appeal, vary the assessment and resulting judgment of the High Court, and assess the damages or pain and suffering and loss of amenities present and future, and for a future operation, at Kshs 80,000.
Issues in the judgment
#The medical expert's examination dates appear as 1962 and 1963 where 1982 and 1983 are plainly intended, given the accident was on May 27, 1982
Hancox JA's judgment states the trial judge's award of general damages was Kshs 10,000, while Platt Ag JA's judgment states the assessment under appeal was Kshs 30,000
The signature block prints Platt's name without the acting designation used in the coram and opinion heading
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Hussein Kilo v Kombo Kassim Omar & another [1986] KECA 66 (KLR)", Case Analysis (1986). Civil Appeal No 49 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/66/eng@1986-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.