Scorpio Elegance Limited v Kenya Power & Lighting Limited
The bottom line
#Kenya's Court of Appeal held Kenya Power liable for negligently damaging a farmer's borehole pump, awarding documented special damages but refusing general damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent negligently breached the installation agreement, causing damage to the borehole pump
Yes. The respondent failed to adhere to the supply drawings (missing support poles, failure to lay underground cable at the 66 KVA crossing, failure to adjust conductor spacing), causing the line clash that damaged the pump starter; the trial judge misapprehended the evidence in finding otherwise.
The court re-evaluated the evidence as a first appellate court under rule 29(1). It found Grayson's reports showed he did inspect the pump site, and both plaintiff's and defence witnesses confirmed damage to the starter. The only intervening event capable of causing the damage was the line clash caused by the respondent's failure to follow the design specifications, so negligence and causation were proved on a balance of probabilities.
Whether the special damages of Kshs. 66,000 and Kshs. 98,000 were specifically pleaded and proved
Yes, those two heads were proved by documentation and testimony, reversing the trial court on those amounts.
Documentation was produced supporting both claims, and Margaret Wanjiru testified she paid Mburu Borehole Services Kshs. 98,000 and Davis & Shirtliff Limited Kshs. 66,000. The consultant's fee, however, was not pleaded in the plaint and was refused, as was the unpleaded agronomist's loss-of-profits claim.
Whether general damages were recoverable
No. General damages cannot be awarded in a claim founded on breach of contract.
The court agreed with the trial judge that damages for breach of contract must be specifically pleaded and proved with certainty; the court cannot speculate or assume the exact loss. The agronomist's loss-of-profits claim, though in the nature of special damages, was neither pleaded nor proved.
Legal principles established
#- Special damages must be claimed specifically and proved strictly; general damages are those the law presumes as the direct natural and probable consequence of the act complained of
- An appellate court will not normally interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a demonstrably wrong principle
- General damages cannot be awarded for breach of contract; loss must be specifically pleaded and proved with certainty
Court orders
#- 1.Special damages awarded comprising: cost of spares to replace the damaged parts of the pump Sh.66,000/- and cost of labour to refit the pump Shs. 98,000/-
- 2.Interest on special damages at court rates from the date the suit was filed
- 3.The appellant shall have the costs in the High Court
- 4.Each party shall bear their own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3372 of 1992
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 29(1)), the appeal being as of right from the High Court's final judgment
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.
- Christopher Otieno v Load Trailers (E.A.) Limited [2020] KEELRC 960 (KLR)[2020] KEELRC 960 (KLR)29 May 2020
Cite this brief
#Cite this brief
Caselaw, "Scorpio Elegance Limited v Kenya Power & Lighting Limited", Case Analysis (2019). Civil Appeal No. 73 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/732/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.