Dinesh Kantilaz Barkrania & another v Joseph Njagi Kagau [2004] KECA 60 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a Shs.200,000 lost-earnings award because the accident victim couldn't prove his losses, but kept his future medical award.
What this practically means
#Executive summary
#Key legal issues
#Standard for appellate interference with assessment of damages
Future medical expenses award of Shs.120,000/= upheld; no error in principle or misapprehension of evidence shown
The trial judge considered two conflicting medical reports and counsel's submissions. The appellants' complaint that about Shs.60,000/= should have been awarded went only to quantum, which is a discretionary exercise not open to appellate disturbance absent error in principle or misapprehension of evidence producing an entirely erroneous estimate.
Proof of special damages for loss of earnings
Award of Shs.200,000/= set aside because the judge found the loss unproved yet awarded a figure without factual basis
The claim of Shs.2.8 million was pleaded as special damages without pleading the underlying facts. The trial judge expressly found the net loss unproved but still awarded Shs.200,000/= as an estimate. Making an award without factual basis after finding non-proof is an error in principle, so the award cannot stand.
Whether loss of business profits was claimable by the plaintiff personally
The judge should have determined whether the lost profits belonged to the company, not the plaintiff
The two contracts were offered to INTERGALLE SERVICES LTD, a company of which the respondent was Managing Director, not to the respondent personally. The judge was bound to consider the appellants' submission that any loss of profits was incurred by the company and make a finding before awarding damages.
Causation and remoteness of lost contract earnings
The court below failed to investigate whether the contract cancellations were a novus actus interveniens breaking the chain of causation
The claim that third parties cancelled two contracts because of the plaintiff's injuries raises a question of law whether the loss was caused by the appellant's negligence or by a new and independent act of third parties. The trial court did not investigate this issue of causation and remoteness, itself a further ground for setting the award aside.
Legal principles established
#- An appellate court will not disturb a discretionary award of damages unless the trial judge proceeded on a wrong principle or misapprehended the evidence, producing an inordinately high or low figure
- Special damages must be both pleaded and strictly proved
Court orders
#- 1.Appeal against the award of Shs.120,000/= as future medical expenses dismissed
- 2.Appeal against the award of Shs.200,000/= as loss of earnings allowed and the award set aside
- 3.Appellants awarded half the costs of the appeal
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No. 216 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dinesh Kantilaz Barkrania & another v Joseph Njagi Kagau [2004] KECA 60 (KLR)", Case Analysis (2004). Civil Appeal No. 21 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/60/eng@2004-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.