Robert Msioki Kitavi v Coastal Bottlers Limited [1985] KECA 79 (KLR)
The bottom line
#Kenya's Court of Appeal nearly doubled compensation for a worker left blind, ruling the original award was far too low to be fair.
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 award of Kshs 250,000 general damages for pain, suffering and loss of amenities was so inordinately low as to be a wholly erroneous estimate warranting interference by the Court of Appeal
Key legal issues
#Whether the Kshs 250,000 award for pain, suffering and loss of amenities was a wholly erroneous estimate
It was inordinately low for virtual total blindness of a 28-year-old and was set aside and replaced with Kshs 475,000.
The trial judge had relied significantly on a 33-year-old English award (Paris) and insufficiently on recent local awards. Given the catastrophic nature of total blindness - loss of virtually all amenities, dependence on others, and pain - and contemporary local comparators, Kshs 250,000 was less than awards for loss of both legs and was plainly an erroneous estimate crying out for an increase.
The proper approach of the Court of Appeal to interfering with damages awards
Interference is justified only on the classical grounds: wrong factor taken into account, relevant factor omitted, or an award so high or low as to be an erroneous estimate.
Following Chanan Singh and Butt v Khan, the court reaffirmed that awards must be fair and reasonable compensation assessed with moderation and conformity with local judicial method. Guidelines and brackets aid consistency, but standardisation or rigid classification is wrong, and foreign awards may inform method though not figures where local conditions differ.
Legal principles established
#- The Court of Appeal will only disturb an award of damages when the trial judge took into account a wrong factor, omitted a relevant factor, or the award is so high or low that it amounts to an erroneous estimate.
- Trial judges assessing general damages should confine themselves to local awards or those of neighbouring countries where social and economic conditions are roughly similar.
- Ratios between awards for different injuries should be eschewed; guidelines and brackets are useful but awards depend on the facts of each case.
- Loss of both eyes, or of the only remaining good eye, should attract damages substantially greater than awards for loss of one eye or loss of both legs.
Court orders
#- 1.The appeal is allowed with costs
- 2.The award of Kshs 250,000 as general damages for pain, suffering and loss of amenities made by the learned judge is set aside
- 3.An award of Kshs 475,000 as general damages for pain, suffering and loss of amenities is substituted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Held the High Court award of Kshs 250,000 for pain, suffering and loss of amenities for virtual total blindness was so inordinately low as to be a wholly erroneous estimate, and proposed substitution of Kshs 475,000 with costs to the appellant.
Thirdly, and finally, Kshs 250,000 in 1984 for the injuries the appellant suffered was, in my respectful view, so inordinately low an award for general damages that it was a wholly erroneous estimate and it cries out for an increase.p. 5
Wrote the judgment
In a separate opinion agreed that total blindness was an injury of the utmost severity, more serious even than loss of both legs, that the Kshs 250,000 award was entirely inadequate and erroneous, and agreed with the substitution of Kshs 475,000 and the order as to costs.
I agree that Kshs 475,000 is the right figure to be substituted for it, remembering that no money award can ever compensate the appellant for his tragic disability.p. 5
Wrote the judgment
In a separate opinion noted this was the first total blindness case before the Court of Appeal, that loss of both eyes is far worse than loss of both legs, and that the Kshs 250,000 award was clearly erroneous warranting interference; agreed with Kshs 475,000 and the costs order.
Yet even on a cool and dispassionate approach, loss of both eyes is far worse than loss of both legs. In this case the award of Kshs 250,000 which is less than Kshs 400,000 for loss of both legs etc. is quite clearly an erroneous one warranting interference.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a first appeal on quantum of damages (provision not expressly stated in the judgment)
Relief refused
#Appellant's plea to reassess general damages at Kshs 600,000 to 750,000
The court instead found Kshs 475,000 to be fair and reasonable compensation assessed with moderation
Costs
The appeal is allowed with costs to the appellant
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.
Hancox JA and Nyarangi JA agree so the order of the court is that the appeal is allowed with costs and the award of Kshs 250,000 as general damages for pain, suffering and loss of amenities made by the learned judge is set aside and one of Kshs 475,000 substituted.
The Court of Appeal of Kenya, then should, as its fore-runners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so high or so low that it amounts to an erroneous estimate.
Guidelines and brackets for various injuries are useful aids to some hope of consistency but awards will very much depend on the facts of each case and any attempt to standardize or rigidly classify them will be in vain and wrong.
Thirdly, and finally, Kshs 250,000 in 1984 for the injuries the appellant suffered was, in my respectful view, so inordinately low an award for general damages that it was a wholly erroneous estimate and it cries out for an increase.
it is right that when paying due regard to the range of awards in comparable cases trial judges should confine themselves to local ones or those neighbouring countries if the social and economic conditions are roughly similar.
Issues in the judgment
#The judgment is a certified copy with no case number for the appeal itself in the memorandum heading; the appeal is identified only as a memorandum of appeal of June 5, 1984.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Msioki Kitavi v Coastal Bottlers Limited [1985] KECA 79 (KLR)", Case Analysis (1985). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/79/eng@1985-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.