Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)
The bottom line
#Kenya's Court of Appeal cut a Kshs 100,000 damages award to Kshs 25,000, ruling that breach of contract without proof of actual loss earns only nominal damages.
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 respondents had proved their claim for the equipment delivered at the appellant premises (Kshs 151,050/-)
- 2.Whether the respondents were entitled to general damages for the breach of the contract
Key legal issues
#Proof of the claim for the value of goods delivered
The award of Kshs 151,050/- as the value of the goods delivered was justified on the evidence; grounds 1, 2 and 5 failed.
The respondent's evidence of delivery on 13 April 1981 against a delivery invoice signed by the appellant's General Manager was ample, unchallenged and uncontroverted. Counsel for the appellant conceded from the bar that the value of the equipment was that sum. The respondents having elected to sue for the value of goods delivered and for breach of contract were entitled to that claim.
Entitlement to general damages for breach of contract
The trial judge's award of Kshs 100,000/- general damages was set aside because loss was not proved; Kshs 25,000/- nominal damages substituted; grounds 3 and 4 succeeded.
The distinction between general and special damages is a matter of pleading and evidence. The respondents did not plead special damages and did not quantify the loss flowing from the breach. The trial judge misdirected himself by speculating that the respondents were kept away from other contractual work. Since breach was proved but loss was not, only nominal damages were available, assessed at Kshs 25,000/-.
Liability for breach of the contract
The appellants, not the respondents, were in breach of the contract.
The respondents delivered the equipment and performed additional installation work at the appellants' request, were ready and willing to complete, and made numerous visits and calls seeking payment. The appellants failed to honour their part of the contract and were in breach.
Legal principles established
#- A plaintiff who elects to sue for the value of goods delivered plus breach of contract is entitled to judgment on that specific claim as elected.
- General damages are awarded for loss the law presumes to result from infringement of a legal right; special damages are the precise pecuniary loss specifically pleaded and proved - where actual loss is not proved but a right is infringed, only nominal damages are available.
- Where breach of contract is proved but the actual loss flowing from it is not proved, the remedy is nominal damages, not general damages.
Court orders
#- 1.The award of general damages of Kshs 100,000/- is set aside and substituted with an award of Kshs 25,000/- nominal damages
- 2.Subject thereto, the appeal is dismissed with half costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- High Court Civil Appeal No 1430 of 1983
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (superior court) under the Court of Appeal's appellate jurisdiction
Relief refused
#Upholding of the Kshs 100,000/- general damages award
The respondents failed to plead or prove special damages and failed to prove the actual amount of loss flowing from the breach, so general damages were not available
Appellants' contention that respondents were limited to 50% of the contract price rather than the value of goods delivered
The respondents elected to claim the value of the goods delivered and for breach of contract, and were entitled to that specific claim
Costs
Subject thereto the appeal is dismissed with half costs to the respondents.
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.
The respondents elected to claim for the value of the goods delivered and for the breach of the contract. Having so elected the respondents were entitled to their specific claim.
Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.
But the term nominal damages does not mean small damages.
In the result we allow the appeal to the extent that award of general damages is set aside and substituted therefore an award of Kshs 25,000/- nominal damages. Subject thereto the appeal is dismissed with half costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)", Case Analysis (1992). Civil Appeal from High Court Civil Appeal No 1430 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/48/eng@1992-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.