Uchumi Supermarket Ltd v Toigoi Investment Limited [2016] KECA 104 (KLR)
The bottom line
#Kenya's Court of Appeal cut Uchumi Supermarket's fire damage bill from Kshs. 37.3 million to Kshs. 22.5 million but still held it liable for negligence.
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 defendant established that the fire was caused by the negligence of the appellant
- 2.Whether the respondent contributed to the damage caused to the building
- 3.Whether the doctrine of res ipsa loquitur is applicable in the circumstances of the case
- 4.Whether the appellant was exempted from liability under Section 3 of The Fires Prevention (Metropolis) Act, 1774
- 5.Whether the awards for damages made to the respondent are sustainable
Key legal issues
#Whether the fire was caused by the appellant's negligence
Yes. The trial Judge's finding that the fire was caused by the negligence of the appellant's employees using a cooking stove was amply supported by the evidence and not perverse, so it stands.
The Court reviewed the testimony of the Chief Fire Officer, a tenant, a loss adjuster, a forensic expert (PW12) and the respondent's director, all of which pointed to a stove found at the back of the store and cooking activities during the lunch hour. Applying the balance-of-probabilities standard under Section 107 of the Evidence Act, the Court held it more probable than not that the unextinguished fire at the stove area caused the blaze. The appellant's failure to call the employees in that section to rebut the explanation weighed against it.
Whether res ipsa loquitur applied
No. Although the Court upheld liability, it held that res ipsa loquitur was not applicable because fires can occur accidentally without negligence.
All the witnesses accepted that a fire can occur accidentally without negligence. Relying on Sochacki v Sas, where Lord Goddard refused to apply the doctrine, and on H & N Emanuel Ltd v Greater London Council on spontaneous combustion, the Court held that the mere occurrence of a fire does not invariably raise a presumption of negligence. The inference of negligence could not be drawn from the circumstances alone; liability was sustained instead on direct proof on a balance of probabilities.
Whether Section 3 of The Fires Prevention (Metropolis) Act, 1774 exempted the appellant
No. The statutory immunity applies only to accidental fires, not fires caused by negligence.
The Court endorsed the trial Judge's reliance on the English authority H & N Emanuel Ltd v Greater London Council, holding that the proviso in Section 3 covers only fires that begin or spread by accident without negligence. Since the cause of the fire was established to be negligence, the appellant could not invoke the protection of the 1774 Act, which is an English statute of general application in Kenya.
Whether the damages awards were sustainable
Partly. The award of 35% of the building's value (Kshs. 31,500,000.00) was set aside as unsupported by the pleadings and evidence and replaced with the Kshs. 17,500,000.00 reinstatement estimate; loss of rent was reduced to 10 months; debris removal was upheld.
No claim had been pleaded for a percentage of the building's value; the pleaded claim was for reconstruction costs. Of the competing estimates, the Kshs. 17,500,000.00 figure based on priced Bills of Quantities for reinstatement of the fire damage was the most accurate. The 12-month loss-of-rent award was reduced to 10 months, consistent with the contractors' completion estimates of 35 and 45 weeks. The Kshs. 1,500,000.00 debris claim was specially proved.
Interest on special damages given the delayed judgment
Interest was to run from the date of the High Court judgment rather than the date of filing suit, because the delay of over four years in delivering judgment was not the parties' fault.
Although interest on special damages ordinarily runs from the date of filing suit, the Court considered the more than four-year delay in delivering the High Court judgment. Since that delay occurred for reasons for which the parties were not responsible, it would be unjust to burden the appellant with interest accruing over that period; interest should accrue from the date of delivery of the judgment on 31st October 2012 until payment in full.
Legal principles established
#- Section 3 of The Fires Prevention (Metropolis) Act, 1774 protects only against accidental fires; it affords no protection where the fire is caused by negligence.
- The occurrence of a fire does not invariably give rise to an inference of negligence; res ipsa loquitur does not apply merely because a fire broke out, since fires can occur accidentally without negligence.
- An appellate court may only interfere with a trial court's findings of fact if they are unsupported by, or perverse on, the evidence.
- A party cannot raise contributory negligence for the first time on appeal where it was not pleaded or canvassed before the trial court.
Court orders
#- 1.Set aside the trial Judge's award of Kshs. 31,500,000.00 for reconstruction and substitute an award of Kshs. 17,500,000.00
- 2.Substitute the award of Kshs. 4,251,960.00 for loss of rent with an award of Kshs. 3,543,330.00 (10 months at Kshs. 354,330.00 per month)
- 3.Uphold the award of Kshs. 1,500,000.00 for removal of debris
- 4.Substitute the total award of special damages of Kshs. 37,251,960.00 with an award of Kshs. 22,543,330.00
- 5.Order interest at 12% p.a. from the date of delivery of the High Court judgment on 31/10/2012 until payment in full, instead of from the date of filing suit
- 6.Direct payment of Kshs. 12,369,952.00 to Kenindia Assurance Company Ltd in settlement of the subrogation claim as ordered by the High Court
- 7.Award the respondent the costs of the suit in the High Court
- 8.Award the appellant half the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- HCCC No. 164 of 2000
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and Appellate jurisdiction Act (not expressly stated in the judgment)
Relief refused
#Apportionment of loss on the basis of contributory negligence
Raised for the first time on appeal; not pleaded nor canvassed before the High Court
Application of the doctrine of res ipsa loquitur
Fires can occur accidentally without negligence, so the occurrence of a fire does not invariably raise a presumption of negligence
Costs
The respondent shall have the costs of the suit in the High Court; half costs of the appeal are awarded to the appellant as it partially succeeded.
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.
In conclusion, the Judgment of the High Court awarding the respondent Kshs.37,251,960/= is hereby set aside and substituted with Judgment in favour of the respondent against the appellant for Kshs.22,543,330/= only.
Out of the judgment amount, Kshs. 12,369,952.00 together with interest at 12% p.a from the date of delivery of the Judgment in the High Court on 31/10/2012 until payment in full will be paid to Kenindia Assurance Company Ltd in settlement of subrogation claim as ordered by the High Court.
The appellant shall pay the respondent's costs of the suit in the High Court. Half costs of the appeal are awarded to the appellant.
we can only interfere with the trial court's findings on those issues if we are satisfied that those findings are perverse as not being supported by evidence or that they are not supportable on the evidence on record
That authority stands for the proposition that Section 3 of The Fires Prevention (Metropolis) Act, 1774 "covers all cases where fire begins or spreads by accident without negligence."
It cannot therefore be said that the occurrence of a fire must invariably lead to the inference of negligence.
Issues in the judgment
#The judgment inconsistently records the Kenindia subrogation amount: paragraph 5 states the insurer indemnified the appellant for Kshs. 12,369,052, while the consent recorded at trial and the final orders refer to Kshs. 12,369,952.
The respondent's pleaded claim for loss of rent is stated at Kshs. 372,000.00 per month, but the judgment awarded Kshs. 354,330.00 per month without reconciling the figures.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gerald Kanyago Muthakia v Dedan Kimathi University of Technology [2021] KEELRC 1331 (KLR)[2021] KEELRC 1331 (KLR)30 Jun 2021
Cite this brief
#Cite this brief
Caselaw, "Uchumi Supermarket Ltd v Toigoi Investment Limited [2016] KECA 104 (KLR)", Case Analysis (2016). Civil Appeal No. 318 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/104/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.