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Court of AppealPartially AllowedCivil Appeal No. 215 of 2002· [2008] KECA 297 (KLR)

Felix Mathenge v Kenya Power & Lighting Company Ltd [2008] KECA 297 (KLR)

Court of Appeal of Kenya
13 March 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
1,298 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that once a default judgment on liability is entered, a trial judge can only assess damages and must also trim awards when plaintiffs delay in reducing their losses.

What this practically means

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Executive summary

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The appellant, registered proprietor of a parcel of land in Ngong bearing six rented flats, sued Kenya Power & Lighting Company Limited alleging that the respondent raised unconscionable and inflated electricity bills, causing tenants to vacate, then disconnected power and refused restoration. The respondent failed to enter appearance; interlocutory judgment was entered on 14th September 2002 and the matter proceeded to formal proof. The Commissioner of Assize nonetheless dismissed the suit, holding that the respondent could not be compelled to supply electricity until outstanding bills were paid. The Court of Appeal held that only two issues arose: whether the trial court erred on liability, and whether damages were proved. On the first, the court, following Kavindu & Another v Mbaya & Another [1976] KLR 164, held that once interlocutory judgment had been regularly entered, liability was final and unassailable, and the court's only role was to assess damages; the dismissal was therefore erroneous. On quantum, the court found the appellant had suffered loss of rental income due to the respondent's unreasonable and capricious behaviour, but that he had failed to mitigate by waiting nearly four years before reconnecting power. Damages were limited to a reasonable twelve-month mitigation period: Kshs.17,000 per flat per month for six flats, totalling Kshs.1,224,000, with interest at court rates from filing suit. The claim for punitive and exemplary damages was dismissed as unproved. The appeal succeeded in part, with costs of the appeal and the High Court suit to the appellant.

Key legal issues

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01

Effect of regularly obtained interlocutory judgment on liability

Holding

Where a defendant fails to enter appearance and interlocutory judgment is regularly entered, liability is conclusively determined and the trial court's sole remaining role is to assess damages; the High Court erred in dismissing the suit for want of proof of liability.

Reasoning

The respondent was served but failed to enter appearance, making the entry of interlocutory judgment mandatory. Once entered, judgment became final as to liability and only interlocutory as to quantum. The Commissioner of Assize therefore exceeded her role by revisiting liability and dismissing the suit instead of assessing damages.

p. 2
02

Assessment of damages and duty to mitigate

Holding

The appellant proved loss of rental income, but his four-year inaction in reconnecting power constituted a failure to mitigate; damages were confined to a reasonable twelve-month mitigation period.

Reasoning

The court accepted that the appellant suffered loss from the respondent's unreasonable and capricious conduct, but held that a reasonable property owner would have paid the amounts due to restore supply and attract back tenants. The appellant was not a man of straw, so limiting damages to twelve months at Kshs.17,000 per flat per month for six flats was appropriate.

p. 3

Legal principles established

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  • Once interlocutory judgment has been regularly entered on liability, the suit proceeds only to assessment of damages; the trial court may not reopen or re-litigate liability or dismiss the suit for want of proof of liability.
  • Interlocutory judgment obtained after a defendant fails to enter appearance is final as to liability and interlocutory only as to quantum.
  • A plaintiff is under a duty to mitigate his loss and damages will be limited to the period during which reasonable steps to mitigate should have been taken.

Court orders

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  1. 1.Award of Kshs.1,224,000/- as general damages for loss of rental income
  2. 2.Interest at court rates on the awarded sum from the date of filing suit until payment in full
  3. 3.Dismissal of the claim for punitive or exemplary damages
  4. 4.Costs of the appeal and of the suit in the High Court to the appellant

Authorities

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Cases cited (1)

  • Kavindu & Another v Mbaya & Another
    [1976] KLR 164
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 418 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (constitutional/statutory provision 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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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Felix Mathenge v Kenya Power & Lighting Company Ltd [2008] KECA 297 (KLR)", Case Analysis (2008). Civil Appeal No. 215 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/297/eng@2008-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.