JUDGMENT OF THE COURT
The appeal before us raises a straightforward question: can a party to a contract of insurance be given special damages arising from loss of profits or loss of income?
The question arises in this way. Solomon Kinara who does business in the name of Kisii Physiotherapy Clinic, the respondent herein, held a “burglary policy” with Madison Insurance Company Ltd, the appellant. The respondent described himself in his plaint dated 16th March, 2001 and filed in the High Court of Kenya at Kisii on 20th March, 2001 as a duly qualified physiotherapist and that he practised his art at New Sansora Complex in Kisii town. He had in his clinic certain articles of his trade which he listed as:
Traction Machine KShs 540,000/-
Ultrasonic Machine KShs 300,000/-
Rehabilitator KShs 10,000/-
Radio Cassette KShs 9,000/-
Pulley System KShs 10,000/-
Universal Adaptor KShs 2,000/-
TOTAL KShs 871,000/-
His contention was that he had insured those items, together with others, against burglary and tha…