Scorpio Elegance Limited v Kenya Power & Lighting Limited [2019] KECA 732 (KLR)
The bottom line
#Kenya's Court of Appeal held Kenya Power liable for negligently damaging a farmer's borehole pump, awarding documented special damages but refusing general damages.
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 appellant proved on a balance of probabilities that the respondent was in breach of the agreement, by negligently carrying out the installation works, and if so whether tortious liability was established on the respondent's part
- 2.whether the appellant was entitled to general damages
- 3.whether the appellant was entitled to special damages
Key legal issues
#Whether the respondent negligently breached the installation agreement, causing damage to the borehole pump
Yes. The respondent failed to adhere to the supply drawings (missing support poles, failure to lay underground cable at the 66 KVA crossing, failure to adjust conductor spacing), causing the line clash that damaged the pump starter; the trial judge misapprehended the evidence in finding otherwise.
The court re-evaluated the evidence as a first appellate court under rule 29(1). It found Grayson's reports showed he did inspect the pump site, and both plaintiff's and defence witnesses confirmed damage to the starter. The only intervening event capable of causing the damage was the line clash caused by the respondent's failure to follow the design specifications, so negligence and causation were proved on a balance of probabilities.
Whether the special damages of Kshs. 66,000 and Kshs. 98,000 were specifically pleaded and proved
Yes, those two heads were proved by documentation and testimony, reversing the trial court on those amounts.
Documentation was produced supporting both claims, and Margaret Wanjiru testified she paid Mburu Borehole Services Kshs. 98,000 and Davis & Shirtliff Limited Kshs. 66,000. The consultant's fee, however, was not pleaded in the plaint and was refused, as was the unpleaded agronomist's loss-of-profits claim.
Whether general damages were recoverable
No. General damages cannot be awarded in a claim founded on breach of contract.
The court agreed with the trial judge that damages for breach of contract must be specifically pleaded and proved with certainty; the court cannot speculate or assume the exact loss. The agronomist's loss-of-profits claim, though in the nature of special damages, was neither pleaded nor proved.
Legal principles established
#- Special damages must be claimed specifically and proved strictly; general damages are those the law presumes as the direct natural and probable consequence of the act complained of
- An appellate court will not normally interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a demonstrably wrong principle
- General damages cannot be awarded for breach of contract; loss must be specifically pleaded and proved with certainty
Court orders
#- 1.Special damages awarded comprising: cost of spares to replace the damaged parts of the pump Sh.66,000/- and cost of labour to refit the pump Shs. 98,000/-
- 2.Interest on special damages at court rates from the date the suit was filed
- 3.The appellant shall have the costs in the High Court
- 4.Each party shall bear their 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. 3372 of 1992
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 29(1)), the appeal being as of right from the High Court's final judgment
Relief refused
#Consultant's fees of Kshs. 125,000 (fee note) / Kshs. 25,000 as claimed
The fee note was not pleaded at the time the plaint was filed and no receipt was produced for the Kshs. 25,000 claimed
General damages
General damages cannot be awarded for breach of contract, and no special circumstances were demonstrated; the claim for loss of profits as special damages was neither pleaded nor proved
Costs
The appellant shall have the costs in the High Court, but each party shall bear their own costs of the 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 sum the appeal is allowed in part, and the respondent shall pay the appellant special damages as set out hereunder.
The appellant shall have the costs in the High Court, but each party shall bear their own costs of the appeal
They are exceptional in their character and, therefore must be claimed specifically and proved strictly.
We find that the learned judge misdirected herself in disregarding Mr. Grayson's reports on the basis of her findings that Mr. Grayson did not inspect the pump, and in so doing she misapprehended the evidence, and reached the wrong conclusion that the starter was not damaged and we so find.
We are therefore satisfied that, there was a causal connection between the line clash and the damage to the pump's starter and find that the learned judge was wrong in finding that no causal connection was established.
Issues in the judgment
#Internal date inconsistency: Mr. Grayson's report is referred to as dated 26th May 1992 earlier but later as 26th May 1997
Internal date inconsistency: the line clash is elsewhere stated to have occurred on 21st September 1991, but this passage says 21st September 1999
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)[2020] KEELRC 960 (KLR)29 May 2020
Cite this brief
#Cite this brief
Caselaw, "Scorpio Elegance Limited v Kenya Power & Lighting Limited [2019] KECA 732 (KLR)", Case Analysis (2019). Civil Appeal No. 73 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/732/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.