MOUNT KENYA SAFARI CLUB LIMITED v DONALD JENKINS [1997] KECA 79 (KLR)
The bottom line
#Kenya's Court of Appeal cut a hotel guest's special damages award by a third, ruling damages from two accidents must be apportioned by injury, not split equally.
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 award of general damages of the Kenya Shilling equivalent of US$60,000 for pain, suffering and loss of amenities was excessive and expressed wrongly in foreign currency
- 2.Whether the award of special damages of US$96,286.30 was justifiable given that the swimming pool accident caused only minimum disability
- 3.Whether the respondent was guilty of failure to mitigate his damages in respect of the left shoulder injury
- 4.Whether the trial judge erred in apportioning special damages equally between the two accidents
- 5.Whether the trial judge erred in not awarding general damages for loss of future earnings (cross-appeal)
Key legal issues
#Apportionment of special damages between two successive accidents
The trial judge erred in apportioning special damages equally between the swimming pool and aircraft accidents; the correct apportionment was one-third to the swimming pool accident given the respondent was right-handed and only the left shoulder injury was attributable to it.
The medical evidence showed the dominant injuries giving rise to the special damages were sustained in the aircraft accident. Only the left shoulder dislocation was attributable to the swimming pool accident. Equal apportionment ignored this disparity; the Court substituted one-third, reducing the award to US$64,190.87 and K.Shs.7,145/65.
Interference with award of general damages on appeal
The award of the Kenya Shilling equivalent of US$60,000 in general damages was not disturbed, as the Court could not conclude it was a wholly erroneous estimate.
The trial judge had before him evidence of 25% permanent impairment of the left shoulder, a subsequent operation and serious interference with the respondent's enjoyment of life, and received no assistance from counsel on quantum. In those circumstances the Court could not say the award was inordinately high so as to merit interference.
Loss of future earnings not pleaded or canvassed at trial
The cross-appeal ground on loss of future earnings failed because no evidence or submission was led on that head at trial.
Damages for loss of future earning capacity must be founded on evidence. Since nothing was canvassed at trial on the long-term effect of the shoulder injury on earnings, the trial judge could not award such damages in vacuo, and the Court declined to do so on appeal.
Legal principles established
#- An appellate court will not interfere with an award of general damages unless it is shown to be an inordinately high or low figure amounting to a wholly erroneous estimate of the damages.
- A trial judge cannot be faulted for failing to award damages for loss of future earnings where no evidence or submission on that head was canvassed at trial.
- Where injuries from separate accidents are distinct in nature and severity, special damages should be apportioned between the accidents according to the relative attribution of the injuries rather than split equally.
Court orders
#- 1.The appellant's appeal allowed only to the limited extent of varying the award of special damages
- 2.Special damages varied: the respondent awarded one-third instead of one-half of the total special damages, being US$64,190.87 instead of US$96,286.30 and K.Shs.7,145/65 instead of K.Shs.10,718/50
- 3.The appellant's appeal allowed with one quarter of the costs of the said appeal
- 4.The respondent's cross-appeal dismissed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 4989 of 1987
- Jurisdiction invoked
- First appeal against the decree of the High Court (H.C.C.C. No. 4989 of 1987) under the Court's appellate jurisdiction
Relief refused
#Cross-appeal seeking increase of damages, including general damages for loss of future earnings
No evidence was led and no submission made at trial on the long-term effect of the left shoulder injury on earning capability, so the trial judge could not have awarded such damages in vacuo
Appellant's challenge to the general damages award of US$60,000 as excessive
The Court could not say the award was so inordinately high as to be a wholly erroneous estimate of the damages
Costs
The appellant's appeal allowed with one quarter of the costs of the said appeal; the respondent's cross-appeal dismissed with costs to the appellant.
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.
save for the variation in the award of special damages as is set out above, the decision of the superior court cannot otherwise be criticised and to that limited extent only we allow the appellant’s appeal with one quarter of the costs of the said appeal and dismiss the respondent’s cross-appeal with costs to the appellant.
the respondent will now have one third of the same for the injury to his left shoulder in the appellant’s swimming pool accident instead of one half of the said special damages. This will now be 64,190.87 U.S. dollars instead of 96,286.30 U.S. dollars and K. Shs.7,145/65 instead of K. Shs.10,718/50.
the respondent’s entitlement to special damages should not have been apportioned equally in respect of the injuries sustained by him in the two separate accidents referred to in this judgment.
It was therefore not to be expected that the trial judge would have awarded damages in connection therewith in vacuo.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MOUNT KENYA SAFARI CLUB LIMITED v DONALD JENKINS [1997] KECA 79 (KLR)", Case Analysis (1997). Civil Appeal 192 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/79/eng@1997-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.