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Court of AppealAllowedCivil Appeal (from HCCC Case No 323 of 1987)· [1994] KECA 94 (KLR)

Victoria De Meo v Abdullahi H. Khalil & another [1994] KECA 94 (KLR)

Court of Appeal
25 January 1994
JGJ.M. GachuhiMMM.G. MuliPhilip Kiptoo TunoiP.K. Tunoi
1,696 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that foreign currency damages convert at the payment date, not the accident date, and raised the injured woman's compensation.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Gachuhi, Muli and Tunoi JJ A) allowed an appeal against quantum arising from a road traffic accident on the Mombasa/Malindi Road near Gedi on 27th March 1986, in which the appellant, Victoria De Meo, was seriously injured in a collision involving a matatu owned and driven by the respondents. The High Court (Shields J) had awarded general damages of Kshs 250,000/- plus special damages of Kshs 60,750/- and 9,604,600 Italian Lira, converting the foreign currency as at the date of the accident. Two issues arose: the correct date of conversion of the foreign currency award, and whether the general damages award was inordinately low. On the first, the respondents conceded the ground, the court following its own prior decision in Mollo Edilio arising from the same accident, which adopted Miliangos v George Frank (Textiles) Ltd, holding the date of payment to be the appropriate conversion date. On quantum, the court restated the Kemfro Africa principles governing appellate interference with damages and found the trial judge had fatally misdirected himself by completely overlooking the final medical report of Dr Hemant Patel establishing permanent incapacity with recurrent pain and stiffness of the right knee and back. The award of Kshs 250,000/- was so inordinately low as to be a wholly erroneous estimate. The court set aside the judgment and orders of the superior court, substituted an award of Kshs 350,000/- general damages, and awarded the appellant the costs of the appeal. This judgment binds subordinate courts on both the conversion-date rule and the quantum-interference principles.

Key legal issues

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01

Date of conversion of foreign currency awards

Holding

Following Miliangos, the rate of conversion of a foreign currency award is fixed at the date of payment, not the date of the accident or judgment.

Reasoning

The court adopted its earlier decision in Mollo Edilio v Abdullahi Hemed, which followed Miliangos v George Frank (Textiles) Ltd. Because of delays between accrual, suit, judgment, possible appeal and execution, fixing conversion at the accident date would distort value; the date of payment is appropriate. The respondents conceded this ground.

p. 2
02

Appellate interference with quantum of general damages

Holding

The trial judge's failure to consider the final medical report establishing permanent incapacity was a fatal misdirection omitting a relevant factor, justifying disturbance of the award.

Reasoning

Restating Kemfro Africa Ltd v Lubia, the court held it may interfere where an irrelevant factor was considered, a relevant one omitted, or the award is a wholly erroneous estimate. The learned judge overlooked expert evidence of permanent incapacity and expressly aimed to avoid excessive awards without regard to inordinately low ones; the Kshs 250,000/- award was inordinately low and was raised to Kshs 350,000/-.

p. 3

Legal principles established

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  • The appropriate date for conversion of foreign currency damages into local currency is the date of payment.
  • An appellate court may interfere with quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.

Court orders

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  1. 1.Ground one of appeal allowed: the date fixed by the trial judge for conversion of the Italian Lira is set aside and substituted with the date of payment
  2. 2.Appeal allowed; judgment and orders of the superior court set aside
  3. 3.Substituted award of Kshs 350,000/- general damages
  4. 4.Appellant to have the costs of the appeal

Authorities

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Cases cited (4)

  • Miliangos v George Frank (Textiles) Ltd
    [1976] AC 443
  • Mollo Edilio v Abdullahi Hemed and another Civil Appeal No 117 of 1992 (unreported)
  • Kemfro Africa Ltd v Lubia and another
    [1982-1988] 1 KAR 727
  • Anderson Kililo v Mbuni Transport Co CA No 133 of 1991 (unreported)
On appeal from
High Court (superior court)
HCCC Case No 323 of 1987
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court in civil matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Victoria De Meo v Abdullahi H. Khalil & another [1994] KECA 94 (KLR)", Case Analysis (1994). Civil Appeal (from HCCC Case No 323 of 1987). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/94/eng@1994-01-25

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