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Court of AppealPartially AllowedCivil Appeal No 69 of 1984· [1985] KECA 122 (KLR)

KITAVI V COSATAL BOTTLERS LIMITED [1985] KECA 122 (KLR)

Court of Appeal of Kenya
10 September 1985
KNKnellerHAHancoxNYNyarangi
3,495 words in judgment
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The bottom line

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Kenya's Court of Appeal nearly doubled a blind worker's compensation, ruling the trial judge relied on outdated foreign awards instead of current Kenyan ones.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Kneller, Hancox and Nyarangi JJA) allowed an appeal against the quantum of general damages. The appellant, a one-eyed casual labourer, was blinded in his remaining good eye when a staple sprang from a syrup carton at the respondent bottling plant in March 1981. Liability was admitted and Bhandari J awarded Kshs 13,150 special damages, Kshs 63,000 loss of future earnings, and Kshs 250,000 general damages. The sole question was whether that general damages award should be increased, the appellant seeking Kshs 600,000 to 750,000. Kneller JA, delivering the leading judgment with which both colleagues agreed, held the award was so inordinately low as to be a wholly erroneous estimate. The trial judge had relied substantially on an English award (Paris) some 33 years out of date and on insufficient recent local awards. The court reaffirmed the East African principle that an appellate court interferes only where the trial judge took into account a wrong factor, omitted a relevant one, or where the award is so high or low as to be an erroneous estimate, while eschewing rigid mathematical ratios. Hancox JA and Nyarangi JA each wrote separate concurring judgments holding that total blindness, even through loss of the only good eye, is an injury of the utmost severity, worse than loss of both legs. The award of Kshs 250,000 was set aside and substituted with Kshs 475,000, with costs of the appeal to the appellant.

Key legal issues

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01

Whether the appellate court may interfere with the quantum of general damages for total blindness

Holding

Yes. The award of Kshs 250,000 was so inordinately low as to be a wholly erroneous estimate, warranting substitution with Kshs 475,000.

Reasoning

The trial judge relied significantly on a foreign English award (Paris) which was about 33 years out of date, and on insufficient recent local awards. Taking into account the catastrophic nature of total blindness, comparative local awards for loss of one eye and for loss of both legs, inflation, and the appellant's circumstances, the figure of Kshs 250,000 fell below any reasonable bracket and cried out for an increase.

p. 5
02

The applicable principles for disturbing a damages award on appeal

Holding

An appellate court interferes only on the classic grounds of wrong factors considered, omitted factors, or an award so high or low as to be an erroneous estimate; rigid mathematical ratios should be eschewed.

Reasoning

Following Chanan Singh and Butt v Khan, the court reaffirmed the East African standard for appellate interference with damages. It endorsed providing guidelines and brackets for consistency between plaintiffs, while stressing that awards ultimately depend on the facts of each case, and declined to adopt the proposed 4-to-5-times ratio as a rigid rule.

p. 5
03

The comparative severity of total blindness against loss of limbs

Holding

Total blindness, whether from loss of both eyes or of the only good eye, is a more serious injury than loss of both legs, and awards must reflect that hierarchy.

Reasoning

Hancox and Nyarangi JJA reasoned that artificial limbs can restore mobility and some independence, whereas blindness deprives the victim of virtually all the joys and pleasures of life and of earning opportunities. An award for blindness lower than the Kshs 400,000 awarded for loss of both legs could not stand.

p. 6

Legal principles established

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  • An appellate court will only disturb an award of general damages where the trial judge took into account a factor he ought not to have, failed to take into account something he ought to have, or where the award is so high or so low that it amounts to an erroneous estimate.
  • An award for total blindness, whether through loss of both eyes or loss of the only good eye, must be substantially greater than awards for the loss of one eye, and generally greater than awards for the loss of both legs.
  • Trial judges should confine themselves to local awards, or those of neighbouring countries with roughly similar social and economic conditions, when assessing general damages; foreign awards are useful only for the factors to be taken into account.
  • Awards must reflect current monetary values and keep abreast of inflation; awards of the 1970s are of insignificant help without adjusting for the contemporary value of money.
  • Fair compensation is assessed with moderation and in conformity with local judicial practice; guidelines and brackets aid consistency, but each award depends on the facts of the case and cannot be rigidly standardized.

Court orders

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  1. 1.Appeal allowed with costs
  2. 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. 3.A substituted award of Kshs 475,000 as general damages for pain, suffering and loss of amenities
On appeal from
High Court of Kenya at Mombasa
Bhandari J (trial suit, judgment of April 30, 1984)
Jurisdiction invoked
First appeal to the Court of Appeal against the quantum of general damages (appeal as of right from the High Court; memorandum of appeal dated June 5, 1984)

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, "KITAVI V COSATAL BOTTLERS LIMITED [1985] KECA 122 (KLR)", Case Analysis (1985). Civil Appeal No 69 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/122/eng@1985-09-10

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