Kenya Power & Lighting Company Limited v Jane Wanjiru Gitau [2018] KECA 738 (KLR)
The bottom line
#Kenya's Court of Appeal cut a dairy farmer's award because she delayed replacing her cows, and trimmed damages that were never specifically pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether liability was proved against the appellant
- 2.Whether the Judge correctly assessed and awarded damages
- 3.Whether the Judge erred in awarding interest on loss of income for milk and manure sales from the date of filing suit and costs from the date of judgment
Key legal issues
#Whether liability in negligence was proved against the appellant
Liability stood proved; the appellant admitted electrocution, did not disprove ownership of the cables, led no evidence to rebut negligence, and its act of God defence was unpleaded
The respondent bore the burden under sections 107 and 108 of the Evidence Act to prove the pleaded particulars of negligence, and led no evidence of faulty cables or of a complaint ignored by the appellant. However, the appellant admitted the cows died by electrocution from its cables, called no witnesses, and its act of God defence was never pleaded. The claim of negligence therefore went unchallenged and the trial court's finding of liability was affirmed.
Whether the trial court correctly assessed damages
The valuation of the cows at Kshs. 200,000/- was supported by evidence and not disturbed, but the 24-month loss-of-income period was reduced to 6 months for failure to mitigate
The award of Kshs. 100,000 per cow rested on sound evidence and the court would not interfere with that exercise of discretion. On loss of income, the appellant's own witness testified the respondent could have replaced her cows within 3 to 6 months. Applying the mitigation principles in African Highland Produce Ltd v John Kisorio, the court held the 24-month period had no factual basis and reduced it to 6 months, totalling Kshs. 288,000/-.
Whether the award of Kshs. 37,000/- professional fees could stand
The award was set aside because professional fees incurred before suit were special damages that had to be specifically pleaded and proved
The expense had been incurred by the time of lodging the suit, making it special damages in nature. Since the respondent never pleaded it specifically in the plaint, the award was erroneous notwithstanding that evidence of the expense was tendered. The court applied the settled rule from NSSF Board of Trustees v Sifa International Ltd that special damages must be specifically pleaded and proved before being awarded.
From what date interest on general damages and on costs runs
Interest on general damages runs from the date of judgment; interest on costs runs from the date of judgment, not the date of taxation
Following Nyamogo & Nyamogo Advocates v Barclays Bank of Kenya, damages assessed at large are unascertained until judgment, so interest on general damages accrues from assessment, i.e. the date of judgment. On costs, section 27 of the Civil Procedure Act makes costs and interest discretionary; nothing showed the trial judge exercised that discretion injudiciously, and since the costs order is made on the date of judgment, interest accrues from that date rather than the date of taxation.
Legal principles established
#- Special damages must be specifically pleaded and proved before they can be awarded
- Interest on general damages accrues from the date of judgment, when the damages are assessed or ascertained, not from the date of filing suit
- A plaintiff has a duty to mitigate loss, and what is reasonable mitigation is a question of fact with the burden of proof on the defendant
- An appellate court will not interfere with a trial judge's exercise of discretion merely because it would have exercised the discretion differently
- A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses
- An unpleaded defence of act of God (vis major) cannot be relied upon
Court orders
#- 1.Interest on loss of income on milk and manure sales to accrue from the date of judgment and not from the date of filing suit
- 2.Loss of income for milk and manure reduced from 24 months to 6 months, totalling Kshs. 288,000/-
- 3.The award of Kshs. 37,000/- as professional fees disallowed
- 4.The rest of the grounds of appeal dismissed; each party to meet its own costs of the appeal
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. 1208 of 1997
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory appellate powers (appeal as of right against the High Court judgment and decree)
Relief refused
#Appellant's challenge to liability
The appellant did not rebut the claim of negligence, did not prove its denial of ownership, and its act of God defence was not pleaded
Appellant's challenge to the valuation of the cows at Kshs. 200,000/-
The trial judge's discretion was based on sound evidence; the appellate court will not interfere merely because it would have exercised the discretion differently
Appellant's contention that interest on costs should run from the date of taxation
Costs and interest thereon are discretionary; the order for costs is made on the date of judgment and interest follows from that date
Costs
Each party to meet its own costs of this 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.
In the end, the appeal partially succeeds in the following terms:
1. Interest on loss of income on milk and manure sales will accrue from the date of judgment and not from the date of filing suit.
2. Loss of income for milk and manure shall be reduced from 24 months to 6 months, which will total to Kshs.288,000/-.
3. The award of Kshs. 37,000/- as professional fees is disallowed.
4. The rest of the other grounds of appeal are dismissed. Each party to meet its own costs of this appeal.
It is settled law that special damages must be specifically pleaded and proved by the plaintiff before being awarded.
The law therefore is that interest on general damages accrues from the time when the damages are assessed or ascertained; that is, on the date of judgment.
The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.
The order for costs and interest is made on the date when the judgment is rendered. It automatically follows that interest should accrue from that date.
Issues in the judgment
#The court's framing of the first issue contains a drafting error, apparently conflating liability and the appellant's liability
The judgment refers to the expert's replacement estimate inconsistently, first as 3 to 6 months and later in the quoted trial judgment as two-to-three months
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Limited v Jane Wanjiru Gitau [2018] KECA 738 (KLR)", Case Analysis (2018). Civil Appeal No. 298 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/738/eng@2018-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.