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Court of AppealDismissedCivil Appeal No. 212 of 1998

ABUDI ALI MAHADHI vs RAMADHANI SAIDI & FREIGHT FORWARDERS LIMITED [1999] KECA 138 (KLR)

Court of Appeal of Kenya
30 July 1999
CHChesoniLALakhaOWOwuor
1,200 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a haulier's damages claim because special damages like loss of vehicle use must be specifically pleaded and strictly proved.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Lakha, J.A. writing the judgment; Chesoni, C.J. and Owuor, J.A. on the bench) dismissed the appeal of the unsuccessful plaintiff against the judgment of Wambiliangah, J. delivered on 18 November 1995 in H.C.C.C. No. 424 of 1992, dismissing his suit with costs. The plaintiff alleged that in May 1988 he let two vehicles with trailers to the defendants to transport food from Mombasa to Sudan, and claimed damages for breach of the hire agreement, including loss of use and loss of vehicle value. The trial judge found that vehicle KPP 484 had been sold before the accident and that the defendants bore no responsibility for the events in war-torn Southern Sudan that prevented the return of KKW 645, and dismissed the suit. On appeal, the Court applied Peters v Sunday Post Ltd, holding that although it may re-evaluate evidence on a first appeal, it is a very strong thing to disturb a trial judge's findings of fact, and found nothing to justify interference. The Court further held, applying Ouma v Nairobi City Council and Kenya Bus Services v Mayende, that the claims for loss of use and loss of vehicle value were special damages which must be pleaded and strictly proved; they were neither pleaded nor proved. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal should interfere with the trial judge's findings of fact that the vehicle KPP 484 had been sold before the accident and that the defendants were not liable for loss of use of KKW 645
  2. 2.Whether the plaintiff's claim for loss of use and loss of value of the vehicles, being special damages, was pleaded and strictly proved

Key legal issues

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01

Appellate interference with trial judge's findings of fact

Holding

The Court declined to interfere; the trial judge saw and heard the witnesses and his conclusions were fully borne out by the evidence.

Reasoning

The burden lay on the appellant to show there was no evidence supporting the trial judge's conclusions, that the judge misapprehended the evidence, or that his appreciation of it was plainly wrong. Applying the Peters v Sunday Post principles, counsel's submissions disclosed nothing justifying interference with findings that the vehicle had been sold and that the defendants bore no blame for the loss of use.

p. 2
02

Pleading and proof of special damages

Holding

Claims for loss of use and loss of value of the vehicles were special damages which had to be strictly pleaded and proved; neither was done, so no award could be made.

Reasoning

The claim as governed by the pleadings was for special damages which had not been pleaded at all. Following Ouma v Nairobi City Council, Kenya Bus Services v Mayende and Bonham Carter v Hyde Park Hotel, special damages must be pleaded and strictly proved with certainty and particularity; merely listing or asserting items of loss is insufficient.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal will not interfere with a trial judge's findings of fact unless there was no evidence to support them, the judge misapprehended the evidence, or his appreciation of it was plainly wrong.
  • Special damages must be both specifically pleaded and strictly proved; a claim not pleaded cannot sustain an award.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

CH
majority
LA
majority

Wrote the judgment

Wrote the judgment of the Court dismissing the appeal, upholding the trial judge's findings of fact and the requirement that special damages be pleaded and strictly proved.

Accordingly, and for the reasons above stated, this appeal must fail and I would dismiss it with costs.p. 3
OW
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 424 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly stated in the judgment)

Relief refused

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Reversal of the dismissal of the plaintiff's suit for damages for breach of the hire agreement

The trial judge's findings of fact were fully borne out by the evidence, and the claims for loss of use and loss of vehicle value were special damages neither pleaded nor strictly proved

p. 2

Costs

Appeal dismissed with costs to the respondents

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.

while this Court has the jurisdiction to re-assess and re-evaluate the evidence on a first appeal, it is a very strong thing indeed for the court to interfere with a trial judge's findings on facts
p. 2First appeal - findings of fact
It has been held time and again by this Court that special damages must be pleaded and, of course, strictly proved.
p. 2Special damages - pleading and proof
Accordingly, and for the reasons above stated, this appeal must fail and I would dismiss it with costs.
p. 3Disposition

Issues in the judgment

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minor

The judgment is delivered as 'JUDGMENT OF THE LAKHA, J.A.' in the first person ('I have heard nothing', 'I would dismiss it') although the coram lists three judges; the judgment does not expressly state it is with the concurrence of Chesoni, C.J. and Owuor, J.A.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "ABUDI ALI MAHADHI vs RAMADHANI SAIDI & FREIGHT FORWARDERS LIMITED [1999] KECA 138 (KLR)", Case Analysis (1999). Civil Appeal No. 212 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/138/eng@1999-07-30

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