Timsales Limited v Up&Down; Saw Mills (Kenya) Limited [1985] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal cut damages for a borrowed, damaged saw, ruling owners must buy a replacement after a reasonable wait instead of claiming endless daily losses.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the findings of fact that the saw was in working condition when borrowed and that the defendant was obliged to repair it were supportable
- 2.Whether the plaintiff failed to prove the damages claimed
- 3.Whether the plaintiff failed to mitigate its loss by not purchasing a replacement machine
- 4.Whether interest on damages was wrongly awarded
Key legal issues
#Bailment and duty to repair
The defendant, having borrowed the saw in good working condition and damaged it on its premises, was bound to repair and return it, and the plaintiff was entitled to refuse to take it back until repaired.
The trial court's findings that the machine was in working order when borrowed and that damage was occasioned at the defendant's premises were findings of fact supportable on the evidence. The defendant's delayed return after repair was itself an acceptance of the obligation and liability to repair, so the first, second and fifth grounds of appeal failed.
Mitigation of damages in detention of chattel
Loss-of-user damages are limited to a reasonable period; the plaintiff should have mitigated by purchasing a replacement after ninety days at Kshs 1,500, and damages were substituted accordingly.
The plaintiff had clear warning from its own February 12, 1974 letter that damage was accruing daily. Ninety days was a reasonable period to expect return. Damages of Kshs 30 per day for over two years were exaggerated; the court substituted the price of a replacement machine (Kshs 1,500) plus ninety days' hire (Kshs 2,700).
Interest on damages
Interest at 12% per annum was to run only from March 16, 1982, the date that rate came into force per Practice Note No 1 of 1983, not from the date of filing suit.
The High Court had awarded interest at 12% from May 28, 1974. The Court of Appeal restricted the 12% rate to the period from when it came into force, while still awarding interest on the total substituted sum at court rates.
Legal principles established
#- A bailee of chattel damaged while in its possession is under an obligation and liability to repair it and return it in good working condition, and the owner is entitled to refuse to take it back until repaired.
- An injured party must mitigate loss by purchasing a replacement after a reasonable period (here ninety days); loss-of-user damages cannot run indefinitely until actual return of the chattel.
Court orders
#- 1.Decree of the High Court set aside and substituted with an order for payment of damages of Kshs 1,500, the price of a new machine
- 2.Payment of Kshs 2,700 damages for 90 days at the rate of Kshs 30 per day, with costs thereon
- 3.Interest on the total sum awarded at court rates but calculated at 12% per annum only from March 16, 1982
- 4.Costs of the suit in the High Court, costs of the appeal and costs of the notice of grounds for affirming the decision awarded to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Hancox JA agreed the appeal should be allowed on quantum of damages only, accepting the reasonable mitigation period of ninety days fixed by Madan Ag CJ, and agreed 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 interest, and as regards the costs of the suit, of the appeal and of the notice of grounds for affirming the decision.p. 3
- On appeal from
- High Court at Nakuru
- Civil Suit No 87 of 1974
- Jurisdiction invoked
- Appeal to the Court of Appeal from the High Court (first appeal on facts and law)
Relief refused
#Damages for loss of user at Kshs 30 per day for the full period of detention (over two years) until actual return of the saw
The plaintiff was obliged to mitigate by purchasing a replacement machine after a reasonable period of ninety days; allowing damages for more than two years was exaggerated.
Costs
Plaintiff allowed the costs of the suit in the High Court, costs of this appeal together with costs of the notice of grounds for affirming the decision; costs on the substituted damages award.
Quotable passages
#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 Kshs 1,500 the price of a new machine, Kshs 2,700 damages for 90 days at the rate of Kshs 30 per day, with costs thereon
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
then returning it after having it repaired which was an acceptance of both the obligation and liability to repair it
These were findings of fact which are supportable on the evidence before the court.
I therefore agree that this appeal should be allowed on the quantum damages only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timsales Limited v Up&Down; Saw Mills (Kenya) Limited [1985] KECA 127 (KLR)", Case Analysis (1985). Civil Appeal No 46 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/127/eng@1985-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.