[2004] KEHC 2243 (KLR)
The trial magistrate erred in awarding general damages for breach of contract and for loss of use of the motor vehicle. Established case law holds that general damages are not recoverable for breach of contract, and damages for loss of use must be claimed as special damages, which must be specifically pleaded and...
Source-derived case information.
- Citation
- [2004] KEHC 2243 (KLR)
- Parties
- Appellant: Eliud Ngugi Mungai; Respondent: Samuel Kangau Njenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 561 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- ARM Visram
- Legal Topics
- Damages for Breach of Contract, Special Damages Pleading, Loss of Use of Motor Vehicle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Ngugi Mungai
Appellant
Samuel Kangau Njenga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether general damages can be awarded for breach of contract.
- 2 Whether damages for loss of use of a motor vehicle are claimable as general or special damages.
- 3 Whether the trial magistrate had jurisdiction to award general damages for breach of contract and loss of use.
Ratio Decidendi
The trial magistrate erred in awarding general damages for breach of contract and for loss of use of the motor vehicle. Established case law holds that general damages are not recoverable for breach of contract, and damages for loss of use must be claimed as special damages, which must be specifically pleaded and strictly proved. The respondent's claim for general damages was therefore not legally sustainable, and the lower court's judgment awarding such damages was set aside. The appellant's appeal was allowed on this basis without the need to consider other grounds of appeal.
Court Disposition
appeal allowed
Orders
- The appellant's appeal is allowed.
- The decree of the lower court is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 561 OF 1999
ELIUD NGUGI MUNGAI ………………….…………….. APPELLANT
VERSUS
SAMUEL KANGAU NJENGA ………………………… RESPONDENT
JUDGMENT
In Joseph Ungadi Kedera vs Ebby Kangisha Kavai (Personal Representative of Ephraim Kavai (Deceased)C A No 239 of 1997 the Court of Appeal said as follows:
“There can be no general damages for breach of contract”
The same court held in Waweru vs Ndiga(1983 ) KLR 236 that damages for loss of use of a motor vehicle can be claimed as special damages and not general damages. It is now well settled beyond peradventure that where a party claims special damages, he must plead and prove them strictly (See Coast Bus Service Ltd vs Murunga & Others C A No 192 of 1992 ; P. R. Siree & Another vs Lake Turkana El Molo Lodges Limited C A No 229 of 1998; Mary Mukiri vs Njoroge Kiania C A No 48 of 1996 , and Duncan Manwel Murigi (A minor suing through his father and next frien d Ngovi Mwasa) vs Kenya Railways Corporation HCCC No 2442 of 1999 .
The Respondent in this appeal filed the claim in the lower court on 17th January, 1996 seeking Judgment against the Appellant as follows:
“1. An order for the release of motor vehicle regi stration number KTA 725 with all the missing parts duly replaced and in good working condition
2. General damages for the loss of use of the said motor vehicle
3. General damages for breach of contract
4. (Costs)
5. (Interest)
6. (Other relief).”
After the motor vehicle was released pursuant to an order of the court, the Respondent amended his Plaint in which he sought the same prayers in the original Plaint save for prayer No 2 which was amended by adding the following words after the word “motor vehicle”, that is “at Kshs.1,000/= per day from March 1995 until the motor vehicle is released to the … (Respondent) in good working condition.”
At the conclusion of the trial, the lower court entered Judgment for the Respondent by awarding him Kshs.19,647. 65 as general damages for breach of contract and Kshs.92,100/= for loss of use.
The Appellant was aggrieved by the decision of the lower court and appealed to this court. The appeal was based on 14 grounds set out in the Memorandum of Appeal but, for the reason that will become apparent (if it is not so by now), I see no reason to reproduce them here.
The case law cited earlier is very clear that the Trial Magistrate did not have jurisdiction to award general damages for loss of use nor for breach of contract. The Judgment entered for the Respondent is, therefore, wrong and must, if for no other reason, be set aside. On this conclusion alone, I see no useful purpose of considering the arguments of counsel on other matters.
I, therefore, allow the Appellant’s appeal and set aside the decree of the lower court. The Appellant will have the costs of this appeal and in the court below.
Dated and delivered at Nairobi this 19th day of May, 2004.
ALNASHIR VISRAM
JUDGE