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Court of AppealAllowedNot stated in the judgment

Antique Auctions Ltd v Pan African Auctions Ltd [1993] KECA 80 (KLR)

Court of Appeal of Kenya
29 September 1993
3,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that credible oral evidence can prove special damages in a civil claim, without needing documents.

What this practically means

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Executive summary

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The appellant, Antique Auctions Limited, was the tenant of the ground floor of Uniafric House, Nairobi, under a lease in which the landlord, Pan African Insurance Company Limited, covenanted to maintain the structure and drains in good repair. Floods of sewage and rainwater repeatedly damaged antique goods held for sale, and the tenant sued for special damages of Shs 68,535/- and general damages. The Senior Resident Magistrate awarded Shs 60,185/- special damages, Shs 14,815/- general damages and costs. The landlord's appeal to the High Court succeeded on special damages and costs but general damages were upheld, prompting this second appeal. The Court of Appeal, per Gachuhi JA with Cockar JA concurring, held that the special damages were properly pleaded and strictly proved: particulars and dates were given, prior similar claims had been paid without resistance, and the evidence of the tenant's director was credible and accepted by the trial magistrate. Strict proof does not require documentary corroboration; credible oral evidence suffices, as in Kampala City Council v Nakaye, a decision the first appellate judge lacked the benefit of. Citing Watt or Thomas v Thomas, the court held that an appellate court should not disturb a trial judge's credibility findings unless plainly unsound. The plea of failure to mitigate failed for want of any suggestion how the tenant could have mitigated. The appeal was allowed with costs, the High Court's judgment set aside, and the trial court's judgment restored.

Questions the Court framed

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

  1. 1.Whether the appellant's claim for special damages was properly pleaded and strictly proved.
  2. 2.Whether special damages can only be proved by documentary/corroborative evidence or may be proved by the credible oral evidence of a witness.
  3. 3.Whether the first appellate judge was entitled to disturb the trial magistrate's findings on the credibility of the appellant's witness and on quantum.
  4. 4.Whether the respondent established a failure to mitigate the loss.

Key legal issues

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01

Proof of special damages

Holding

The appellant's special damages were properly pleaded (items and dates itemised) and proved to the required standard by the credible evidence of its director, whose past similar claims had been paid by the respondent without resistance.

Reasoning

Special damages must be specifically pleaded and strictly proved. Strict proof was met here: particulars of breach and damaged items were pleaded, prior similar claims were settled without dispute, and the valuation evidence was credible and a minimum claim. Documentary corroboration is not the only mode of proof; credibility of the witness suffices, as in Kampala City Council v Nakaye.

p. 4
02

Credibility findings on appeal

Holding

The trial magistrate, who saw and heard the witness, was the best judge of credibility; the first appellate judge erred in rejecting findings the magistrate had accepted without basis that they were plainly unsound.

Reasoning

Following Watt or Thomas v Thomas, an appellate court attaches great weight to a trial judge's findings of fact and credibility and should not disturb them unless plainly unsound. The trial magistrate expressly believed the witness; the first appellate judge's contrary view could not stand, particularly as he lacked the benefit of Kampala City Council v Nakaye.

p. 5
03

Mitigation

Holding

The respondent's plea of failure to mitigate failed; no suggestion was put forward as to how the tenant could have mitigated, and the tenant had complained and the business relationship continued.

Reasoning

The respondent alleged in its defence that the plaintiff failed to mitigate, but led no evidence or suggestion of how mitigation was possible; the tenant had complained whenever floods occurred and the repairs were the landlord's covenant duty. Porter v Jones supports that ordinary use of the premises is not unreasonable conduct breaking the chain of causation.

p. 3
04

Landlord's liability for breach of repair covenant

Holding

A landlord in breach of a covenant to repair is liable for damage to the tenant's chattels occurring after notice or actual knowledge of the want of repair; the respondent admitted breaches through its witness and carried out repairs in 1983.

Reasoning

Halsbury's Laws states the landlord is liable for damage to the tenant's chattels caused by default in repair after notice. Correspondence from 1975 to 1981 put the landlord on notice; its property supervisor admitted the defects and repairs were only done in 1983, confirming breach of clause 3(b).

p. 2

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved, but strict proof does not require documentary corroboration; credible oral evidence believed by the trial court may suffice.
  • An appellate court will not disturb a trial judge's findings on the credibility of witnesses, who saw and heard them, unless the judgment is plainly unsound.
  • Evidence in proof of special damages must show the same particularity as is required for its pleading.

Court orders

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  1. 1.Appeal allowed with costs.
  2. 2.The High Court's appellate judgment set aside.
  3. 3.The trial court's judgment restored.

The bench

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

majority

Wrote the judgment

Wrote the principal judgment allowing the appeal, holding that the tenant's special damages were properly pleaded and proved by credible evidence, and that the first appellate judge erred in disallowing them.

It is my view that this appeal be allowed with cost. I would therefore, set aside the appellate judgment and restore the trial court’s judgment.p. 5
concurring

Concurred with Gachuhi JA's draft judgment.

Cockar JA: I have perused the draft judgement of the Gachuhi JA. I concur with it.p. 6
On appeal from
High Court
Not stated
Jurisdiction invoked
Second appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(3) referred to for delivery by two members); specific appellate statutory provision not cited in the judgment.

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.

It is my view that this appeal be allowed with cost. I would therefore, set aside the appellate judgment and restore the trial court’s judgment.
p. 5Final orders/disposition
In the case of special damage, such claim of the loss must be specifically pleaded and strictly proved. Proof of damages is by evidence and the Court will decide each case on balance of probability.
p. 2Standard of proof of special damages
When a question of fact has been tried by a Judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach great importance to his opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound.
p. 5Appellate deference to trial court's credibility findings
Special damages, on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and, therefore, they must be claimed specifically and proved strictly.
p. 3Nature of special damages (MacGregor on Damages)
Where the landlord is guilty of a breach of covenant to repair the demised premises, he is not liable for any damage suffered prior to the receipt by him of the notice to repair or to the time at which he has actual knowledge of the want or repair
p. 2Landlord's liability for breach of repair covenant

Issues in the judgment

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minor

The judgment does not state the case number of the appeal, the neutral citation, or the identity and case number of the High Court decision appealed from.

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, "Antique Auctions Ltd v Pan African Auctions Ltd [1993] KECA 80 (KLR)", Case Analysis (1993). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/80/eng@1993-09-29

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