Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 192 of 1994· [1997] KECA 79 (KLR)

Mount Kenya Safari Club Limited v Donald Jenkins

Court of Appeal of Kenya
21 March 1997
4,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

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

#
The Court of Appeal at Nairobi (Gicheru, Tunoi and Pall, JJA) heard the appellant Mount Kenya Safari Club Limited's appeal against, and the respondent Donald Jenkins' cross-appeal on, a High Court decree of 14th December 1992 by Hancox CJ awarding damages for a left shoulder dislocation the respondent suffered diving into the appellant's swimming pool at Nanyuki on 17th March 1984. The respondent was subsequently injured in a crash of the Flying Doctor aircraft evacuating him, and the trial judge attributed only the shoulder injury to the pool accident, apportioning total special damages of US$192,572.61 and K.Shs.21,437/- equally between the two accidents and awarding general damages of the equivalent of US$60,000. The appellant contended the awards were excessive and wrongly expressed in foreign currency; the respondent cross-appealed, seeking findings that wrist, thumb and spinal injuries also flowed from the pool accident and an award for loss of future earnings. The Court affirmed the finding that only the left shoulder injury was attributable to the pool accident and declined to disturb the general damages award, holding it could not be said to be a wholly erroneous estimate. However, it held equal apportionment of special damages was erroneous: since the respondent was right-handed, the shoulder injury should attract one-third, not one-half, of the special damages, reducing the award to US$64,190.87 and K.Shs.7,145/65. The cross-appeal failed because no evidence or submission on loss of future earnings was canvassed at trial. The appeal was allowed only to that limited extent with one quarter of the costs; the cross-appeal was dismissed with costs to the appellant.

Key legal issues

#
01

Apportionment of special damages between two successive accidents

Holding

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.

Reasoning

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.

p. 6
02

Interference with award of general damages on appeal

Holding

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.

Reasoning

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.

p. 6
03

Loss of future earnings not pleaded or canvassed at trial

Holding

The cross-appeal ground on loss of future earnings failed because no evidence or submission was led on that head at trial.

Reasoning

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.

p. 6

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. 1.The appellant's appeal allowed only to the limited extent of varying the award of special damages
  2. 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. 3.The appellant's appeal allowed with one quarter of the costs of the said appeal
  4. 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.