Abdalla Hussein Kilo V Kombo Kassim Omar & Another  EKLR
|Civil Appeal 49 of 1984||21 Oct 1986|
James Onyiego Nyarangi, Harold Grant Platt, Alan Robin Winston Hancox
Court of Appeal at Mombasa
Abdalla Hussein Kilo v Kombo Kassim Omar & Ida-Sa-Godana Ranching Co-op Society
Abdalla Hussein Kilo v Kombo Kassim Omar & another  eKLR
Kilo v Omar & another
Court of Appeal, at Mombasa October 21, 1986
Hancox, Nyarangi and Platt JJA
Civil Appeal No 49 of 1984
(Appeal from the High Court at Mombasa, Bhandari J)
Damages – general damages – for pain, suffering and loss of amenities – assessment of – when award for damages may be set aside - fracture of right upper arm, dislocation of right elbow – loss of movement and gripping power in arm – quantum of damages.
Damages – mitigation of damages – party on whom burden of proving mitigation rests – refusal by claimant to undergo surgery – whether such refusal constitutes failure to mitigate damages.
The appellant, who was a passenger in a motor vehicle owned by the second respondent and driven by the first respondent, was injured when the vehicle was involved in an accident. He suffered a fracture and dislocation of the right upper arm and elbow respectively which led to reduced arm movement and loss of gripping power. The injuries apparently worsened after the appellant failed to undergo a surgical operation.
The appellant, who was right-handed, 50 years old and due for retirement in another five years, remained employed after the accident. In his suit against the respondents for general damages, he was awarded Shs 30,000 as general damages for pain, suffering and loss of amenities. The appellant appealed contending that the award was so low as to be erroneous.
1. Before an award for general damages can be set aside, it must be shown that there was an error in assessing the award and it is not sufficient merely to show that the court would have made a somewhat higher award.
2. The burden of proof of damages is upon the plaintiff but if a defendant seeks to show that the plaintiff ought to have mitigated his loss, the burden may pass to the defendant and the normal measure of damages will not be cut down unless the defendant succeeds in showing that the plaintiff ought reasonably to have taken mitigating steps.
3. The refusal by a physically injured plaintiff to undergo a dangerous and risky surgical operation does not constitute a failure to mitigate damages but where the operation cannot be regarded by reasonable men to be a risky one, then a refusal to allow it would constitute such failure. There was no evidence to show that the plaintiff had taken the wrong decision in not having the surgical operation.
4. The court had not considered the appellant’s likely pain and suffering froms a future surgical operation.
5. The award for general damages was too low and would be reassessed at Shs 80,000.
1. Ilanga (Henry Hidaya) v Manyoka (Manyema)  EA 705 at P 713
2. Mcauley v London Transport Executive  2 Lloyds Rep 500
3. Steele v George (Robert) & Co Ltd  AC 497; 1 All ER 447
4. Richardson v Redpath, Brown & Co Ltd  AC 62; 1 All ER 110
5. Marcroft v Scruttons  2 Lloyds Rep 395
McGregor, H. McGregor on Damages London: Sweet & Maxwell 17th Edn p 825
No statutes referred.
Mr Jiwaji for the Appellant
Mr Ghalia for the Respondent