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Court of AppealPartially AllowedCivil Appeal No. 21 of 2002· [2004] KECA 60 (KLR)

Dinesh Kantilaz Barkrania & another v Joseph Njagi Kagau [2004] KECA 60 (KLR)

Court of Appeal of Kenya
18 March 2004
1,357 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal at Nairobi (Tunoi, Githinji JJ.A. and Onyango Otieno Ag. JA) allowed this appeal in part in a single judgment of the court. The appeal, arising from a road traffic accident claim in which liability had been settled by consent at 80/20 against the appellants, was confined to two awards by Mwera J of the High Court at Machakos: Shs.120,000/= for future medical expenses and Shs.200,000/= for loss of earnings. The court reaffirmed the Butt v Khan principle that assessment of damages is discretionary and will not be disturbed absent error in principle or misapprehension of evidence producing an entirely erroneous estimate. It declined to interfere with the future medical expenses award, which was supported by medical reports including Dr Njoka's evidence of two contemplated operations. However, it set aside the Shs.200,000/= loss of earnings award. The trial judge had himself found that the Shs.2.8 million pleaded special damage was not proved, yet made an estimate without factual basis - an error in principle, since special damages must be both pleaded and strictly proved (Hahn v Singh). The court further noted that the lost contracts belonged to a company, not the plaintiff personally, and that the trial court failed to investigate causation and remoteness, including whether third-party cancellation of the contracts was a novus actus interveniens (KCM Thyssen v Wakisu Estate Ltd). The appellants, having partially succeeded, were awarded half the costs of the appeal. The decision binds lower courts on the strict pleading and proof of special damages and the limits of appellate interference with quantum.

Key legal issues

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01

Standard for appellate interference with assessment of damages

Holding

Future medical expenses award of Shs.120,000/= upheld; no error in principle or misapprehension of evidence shown

Reasoning

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.

p. 2
02

Proof of special damages for loss of earnings

Holding

Award of Shs.200,000/= set aside because the judge found the loss unproved yet awarded a figure without factual basis

Reasoning

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.

p. 2
03

Whether loss of business profits was claimable by the plaintiff personally

Holding

The judge should have determined whether the lost profits belonged to the company, not the plaintiff

Reasoning

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.

p. 3
04

Causation and remoteness of lost contract earnings

Holding

The court below failed to investigate whether the contract cancellations were a novus actus interveniens breaking the chain of causation

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal against the award of Shs.120,000/= as future medical expenses dismissed
  2. 2.Appeal against the award of Shs.200,000/= as loss of earnings allowed and the award set aside
  3. 3.Appellants awarded half the costs of the appeal

Authorities

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Cases cited (3)

  • Butt v. Khan
    [1981] KLR 349
  • Hahn v. Singh
    [1985] KLR 716
  • KCM Thyssen v Wakisu Estate Ltd.
    [1960] EA 288
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.