[2004] KEHC 707 (KLR)
The court found that the defendant breached the catering contract by terminating it without the contractually required three months notice. The plaintiff was entitled to compensation for the loss of earnings she would have made during the notice period and the remaining contract term, as the purpose of damages in...
Source-derived case information.
- Citation
- [2004] KEHC 707 (KLR)
- Parties
- Plaintiff: Rose Mbula Ojwang t/a Faida 2002 Caterers; Defendant: Baraka Apparel EPZ (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 682 of 2003
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Breach of Contract, Damages Assessment, Termination of Contract, Contractual Obligations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Mbula Ojwang t/a Faida 2002 Caterers
Plaintiff
Baraka Apparel EPZ (K) Limited
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant breached the catering contract by terminating it without giving the required three months notice.
- 2 Whether the plaintiff is entitled to compensation for the remainder of the contract period due to the defendant's unilateral termination.
- 3 Whether the plaintiff is entitled to recover terminal dues paid to her employees and general damages for distress and anguish.
Ratio Decidendi
The court found that the defendant breached the catering contract by terminating it without the contractually required three months notice. The plaintiff was entitled to compensation for the loss of earnings she would have made during the notice period and the remaining contract term, as the purpose of damages in contract law is to place the innocent party in the position they would have been in had the contract been performed. The court rejected the claim for terminal dues paid to employees, reasoning that such payments would have been necessary even if the contract had run its full course. The claim for general damages for distress and anguish was also rejected due to insufficient proof...
Court Disposition
Judgment for the plaintiff.
Orders
- Judgment for the plaintiff as against the defendant for Kshs 865,929 and Kshs 1,443,215 for the eight months contract period.
- Costs of the suit to the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
CIVIL SUIT NO. 682 OF 2003
ROSE MBULA OJWANG
T/A FAIDA 2002 CATERERS …………………………………………….PLAINTIFF
VERSUS
BARAKA APPAREL EPZ (K) LIMITED ………….....…………………. DEFENDANT
J U D G M E N T
The defendant’s counsel had been served with the hearing notice but when this case came up for hearing despite the court having waited up to 10. 00 a.m. the defendant counsel failed to attend court. The case proceeded exparte.
The Plaintiff stated in evidence that she is the proprietor of FAIDA 2002 CATERERS. The said firm entered into a contract with the defendant whereby the firm was to supply the defendant’s employees with meals. The contract provided the time and costs of the meals. The contract, which commenced on 8 April 2002, was to expire after one year but under clause 5 parties could terminate by giving three months notice.
The plaintiff was serving 800 employees of the defendant and to enable her to carry out the contract the plaintiff had employed 28 employees and had invested Kshs 2, 456, 991. The plaintiff’s exhibits showed the menu of food supplied to the defendant’s employees and the record of the persons who eat the lunch.
For the first year there was no incident and the parties carried out their respective obligations. It was on the renewal of the contract that the plaintiff encountered problems with the defendant; for example the plaintiff’s invoice of June and July 2003 had not been settled by July 14th 2003 and a demand was made to the defendant. The defendant also began to make unilateral changes to the contract by stopping the provision of lunch for certain categories of employees. Finally by letter dated July 21, 2003 the defendant cancelled the plaintiff’s catering services without giving the 3 months notice.
The plaintiff is her evidence said that the average she would have earned for the period of 3 months was kshs 865, 929.
For the five remaining months to the end of the contract period the plaintiff stated she would have earned Kshs 1, 443, 215/-. The plaintiff’s employees had their employment terminated and as a consequence the plaintiff paid them terminal dues of kshs 217, 185.
As a consequence of unilateral termination of the contract by the defendant the plaintiff, who had purchased equipment to carry out the contract could not get alternative contract to utilize them and this, so said the plaintiff, led her to mental anguish and agony, distress and wasted investment and lost business opportunity.
In a case such as this one where a party successfully proves breach of contract the court’s function is to place the innocent party as far as money can do it, in as good a situation as if the contract had been performed.
I am satisfied that the plaintiff is entitled to be compensated for the remainder period of the contract and accordingly the plaintiff has proved the amount for 3 months being kshs 865, 929 and for 5 months kshs 1, 443, 215/-.
I do not accept that he plaintiff would be entitled to recover the terminal dues payable to the workers since the contract with the defendant was only for one year if the contract was not renewed, the workers would have had their services terminated. I therefore reject the claim for kshs 217, 185/-
The plaintiff’s claim for general damages for distress and anguish was not sufficiently proved. When one talks of distress and mental anguish I think it ought to be proved with perhaps medical report and there has to be direct connection to the defendants acts for it to succeed. The court appreciates that the plaintiff must have been disappointed, indeed she stated so in evidence, with the defendant’s premature termination; but the court cannot award damages for this.
Accordingly the judgment of this court is as follows: -
1) Judgment for the plaintiff as against the defendant for kshs 865, 929 and kshs 1, 443, 215 for the eight months contract period. Costs of this suit to the plaintiff.
Dated and delivered this 9th December 2004.
MARY KASANGO
AG JUDGE