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Court of AppealPartially AllowedNot stated in the judgment

Timsales Ltd v Up & Down Saw Mills (Kenya) Ltd [1985] KECA 46 (KLR)

Court of Appeal of Kenya
6 November 1985
1,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendant borrowed the plaintiff's portable crosscut saw in good working condition on January 3, 1974 and returned it repaired only on January 27, 1976. The High Court found the damage occurred on the defendant's premises and that he was obliged to repair and return it; judgment was entered for damages at Shs 30 per day for the whole period until return (Shs 19,170), return or replacement of the saw, and interest at 12% from filing suit. On appeal, Madan Ag CJ (with Kneller and Hancox JJA agreeing) upheld the findings of fact, including that the saw was in working order when borrowed and that the defendant bore the obligation and liability to repair it, holding the plaintiff entitled to refuse to take it back until repaired. However, the court held the trial judge erred on mitigation: the plaintiff should have purchased a replacement machine after a reasonable period of ninety days, since the defendant had clear warning and was doing nothing to return the machine. Allowing damages for over two years was unreasonably long and exaggerated. The Court of Appeal set aside the High Court decree and substituted damages of Shs 1,500 (price of a new machine) plus Shs 2,700 for ninety days' loss of user at Shs 30 per day, with interest at 12% per annum only from March 16, 1982 under Practice Note No. 1 of 1982. The appeal succeeded on quantum only; the plaintiff received the costs of the suit, the appeal and the notice of grounds for affirming the decision.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the findings of fact that the saw was in working condition when borrowed, that the burden lay on the defendant to prove reasonable care, and that the defendant promised to repair it were supported by the evidence
  2. 2.Whether the plaintiff failed to prove the damages claimed
  3. 3.Whether the plaintiff failed to mitigate its loss by not purchasing an alternative machine
  4. 4.Whether interest on damages was wrongly awarded

Key legal issues

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01

Mitigation of damages in detinue/contract

Holding

The plaintiff was obliged to mitigate by purchasing a replacement machine after a reasonable period of 90 days; damages for loss of user could not run for the full period until actual return of the saw.

Reasoning

The court held that once it was clear the defendant was doing nothing to return the machine, the plaintiff could not simply continue claiming Shs 30 per day for over two years. A reasonable expectation of return was 90 days, after which the plaintiff should have bought a replacement for Shs 1,500. The trial judge's allowance of damages beyond that period was wrong and exaggerated, so the decree was set aside and substituted on quantum.

p. 2
02

Findings of fact on appeal

Holding

The trial judge's findings that the saw was in working order when borrowed and that the defendant had the obligation and liability to repair it were supportable on the evidence and without merit on appeal.

Reasoning

The defendant conceded borrowing the saw, kept it over two years and returned it repaired, which the court treated as acceptance of the obligation and liability to repair. Findings of fact supported by the evidence could not be disturbed. The plaintiff was entitled to refuse to take the saw back until repaired.

p. 2
03

Interest on damages

Holding

Interest was properly awarded but should be calculated at 12% per annum only from March 16, 1982 when that rate came into force under Practice Note No. 1 of 1982.

Reasoning

The appeal ground on interest was partly sustained: the court varied the interest award to run at 12% per annum only from the date that rate came into force under Practice Note No. 1 of 1982, rather than from the date of filing suit as the trial judge had ordered.

p. 2

Legal principles established

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  • A party whose property is damaged must mitigate its loss within a reasonable time, including by purchasing a replacement rather than claiming loss of user indefinitely.
  • Findings of fact of a trial judge which are supportable on the evidence will not be disturbed on appeal.

Court orders

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  1. 1.Set aside the decree of the High Court
  2. 2.Substituted an order for payment of damages of Shs 1,500 being the price of a new machine
  3. 3.Substituted damages of Shs 2,700 for 90 days at the rate of Shs 30 per day, with costs thereon
  4. 4.Interest on the total sum awarded at court rates, calculated at 12% per annum only from March 16, 1982 as stated in Practice Note No. 1 of 1982
  5. 5.Plaintiff awarded the costs of the suit in the High Court, costs of the appeal and costs of the notice of grounds for affirming the decision

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CM
majority

Wrote the judgment

Wrote the lead judgment: dismissed the grounds attacking the findings of fact (condition of the saw, burden of care, promise to repair), but held the learned judge erred on mitigation; damages should be limited to the price of a replacement machine plus 90 days' hire at Shs 30 per day, with interest and costs.

In my view, the plaintiff therefore ought to have mitigated the damage by purchasing another machine, say after the expiry of ninety days, which I consider to be a reasonable periodp. 2
concurring

Wrote the judgment

Wrote a separate concurring judgment agreeing the appeal should be allowed on quantum only and endorsing the 90-day reasonable period and the orders on interest and costs.

I therefore agree that this appeal should be allowed on the quantum damages only. I also agree with the orders that Madan Ag CJ, proposed as regards interestp. 3
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal (statutory appellate jurisdiction; no specific provision cited in the judgment)

Relief refused

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Damages at Shs 30 per day for the full period until actual return of the saw (January 4, 1974 to January 27, 1976)

The plaintiff ought to have mitigated its loss by purchasing a replacement machine after a reasonable period of 90 days; allowing over two years' damages was unreasonably long and exaggerated

p. 2

Costs

Plaintiff to have the costs of the suit in the High Court, costs of the appeal and costs of the notice of grounds for affirming the decision; the substituted damages of Shs 1,500 and Shs 2,700 to carry costs thereon.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I would set aside the decree of the High Court, and substitute therefore an order for payment of damages Shs 1,500 the price of a new machine, Shs. 2,700 damages for 90 days at the rate of Shs 30 per day, with costs thereon
p. 2Final orders - substituted quantum of damages
In my view, the plaintiff therefore ought to have mitigated the damage by purchasing another machine, say after the expiry of ninety days, which I consider to be a reasonable period during which time the plaintiff could expect the defendant to return the machine.
p. 2Duty to mitigate - reasonable period fixed at ninety days
These were findings of fact which are supportable on the evidence before the court.
p. 2Non-interference with findings of fact on appeal
I therefore agree that this appeal should be allowed on the quantum damages only.
p. 3Scope of the allowance of the appeal
It is irrelevant that the machine was returned to the plaintiff more than two years later. It had not been returned to him when he became entitled to acquire an alternative machine.
p. 2Actual return does not extend damages past the mitigation date

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Timsales Ltd v Up & Down Saw Mills (Kenya) Ltd [1985] KECA 46 (KLR)", Case Analysis (1985). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/46/eng@1985-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.