Mount Kenya Safari Club Limited v Donald Jenkins
The bottom line
#Kenya's Court of Appeal cut a hotel guest's special damages award by a third, ruling damages from two accidents must be apportioned by injury, not split equally.
What this practically means
#Executive summary
#Key legal issues
#Apportionment of special damages between two successive accidents
The trial judge erred in apportioning special damages equally between the swimming pool and aircraft accidents; the correct apportionment was one-third to the swimming pool accident given the respondent was right-handed and only the left shoulder injury was attributable to it.
The medical evidence showed the dominant injuries giving rise to the special damages were sustained in the aircraft accident. Only the left shoulder dislocation was attributable to the swimming pool accident. Equal apportionment ignored this disparity; the Court substituted one-third, reducing the award to US$64,190.87 and K.Shs.7,145/65.
Interference with award of general damages on appeal
The award of the Kenya Shilling equivalent of US$60,000 in general damages was not disturbed, as the Court could not conclude it was a wholly erroneous estimate.
The trial judge had before him evidence of 25% permanent impairment of the left shoulder, a subsequent operation and serious interference with the respondent's enjoyment of life, and received no assistance from counsel on quantum. In those circumstances the Court could not say the award was inordinately high so as to merit interference.
Loss of future earnings not pleaded or canvassed at trial
The cross-appeal ground on loss of future earnings failed because no evidence or submission was led on that head at trial.
Damages for loss of future earning capacity must be founded on evidence. Since nothing was canvassed at trial on the long-term effect of the shoulder injury on earnings, the trial judge could not award such damages in vacuo, and the Court declined to do so on appeal.
Legal principles established
#- An appellate court will not interfere with an award of general damages unless it is shown to be an inordinately high or low figure amounting to a wholly erroneous estimate of the damages.
- A trial judge cannot be faulted for failing to award damages for loss of future earnings where no evidence or submission on that head was canvassed at trial.
- Where injuries from separate accidents are distinct in nature and severity, special damages should be apportioned between the accidents according to the relative attribution of the injuries rather than split equally.
Court orders
#- 1.The appellant's appeal allowed only to the limited extent of varying the award of special damages
- 2.Special damages varied: the respondent awarded one-third instead of one-half of the total special damages, being US$64,190.87 instead of US$96,286.30 and K.Shs.7,145/65 instead of K.Shs.10,718/50
- 3.The appellant's appeal allowed with one quarter of the costs of the said appeal
- 4.The respondent's cross-appeal dismissed with costs to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 4989 of 1987
- Jurisdiction invoked
- First appeal against the decree of the High Court (H.C.C.C. No. 4989 of 1987) under the Court's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mount Kenya Safari Club Limited v Donald Jenkins", Case Analysis (1997). Civil Appeal 192 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/79/eng@1997-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.