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Court of AppealPartially AllowedCivil Appeal No. 179 of 2010

Kenya Commercial Bank Limited v Sheikh Osman Mohammed [2013] KECA 61 (KLR)

Court of Appeal
20 December 2013
3,274 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 threw out a Kshs. 4.5 million award because the claimant never properly pleaded or proved his loss of income.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of Khaminwa J (High Court, H.C.C.C. No. 191 of 2004, delivered 4 May 2009), which ordered the bank to release title documents and a logbook, awarded the respondent Kshs. 220,908.21 as an overpayment of his loan, and further awarded Kshs. 4,500,000.00 as general damages and mesne profits for loss of use of a detained lorry, with interest from the date of filing suit. The appeal attacked only the Kshs. 4,500,000.00 award and the interest order. The Court held that the pleadings complained only of detention of title documents, not the vehicle, and that the respondent's testimony about the lorry's disappearance and monthly income was at variance with the pleadings, causing the trial judge to speculate about the nature of the claim. The Court affirmed that a court must not surmise a plaintiff's claim and that damages in detinue, while general in nature, require proof of the loss suffered. Because the loss of income claim was ascertainable and quantifiable, it had to be specifically pleaded and proved; no evidence supported the award, which simply mirrored the vehicle's asserted value. The Court allowed the appeal and set aside the High Court judgment to the extent of the Kshs. 4,500,000.00 award, declined to determine the interest question as unnecessary, and awarded the appellant half costs of the appeal. The release of securities and the refund of Kshs. 220,908.21 remained undisturbed.

Questions the Court framed

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

  1. 1.Whether the award of Kshs. 4,500,000.00 for general damages and mesne profits for loss of use of the vehicle was made in error
  2. 2.Whether the claim for damages for loss of user was specifically pleaded and proved, and if not, whether the award was made in error
  3. 3.Whether the judge erred in awarding interest on general damages from the date of filing suit as opposed to from the date of judgment

Key legal issues

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01

Whether damages for loss of use of a detained vehicle may be awarded without specific pleading and proof

Holding

No. The claim was ascertainable and quantifiable and therefore had to be specifically pleaded and proved; absent evidence the award was made in error

Reasoning

The court held the loss of income claim was quantifiable and so fell within the rule on special damages. The respondent pleaded only that his lorry 'used to earn him a lot of money per month' and testified to Kshs. 100,000.00 per month, but neither figure was supported by documents or other evidence. The trial judge's award of Kshs. 4,500,000.00 merely mirrored the value of the vehicle, not proved loss of use, and thus was founded on speculation rather than evidence.

02

The nature of remedies in detinue and the requirement of proving loss from detention

Holding

Detinue permits general damages for detention including loss of use, but the plaintiff must still prove the loss suffered

Reasoning

Relying on Diplock L.J in General and Finance Facilities Ltd v Cooks Car (Romford) Ltd, the court confirmed that a detinue claimant may recover the value of the chattel or its return plus damages for detention, and following Strand Electric v Brisford Entertainments that profit-earning chattels can ground full-hire damages. However, the Indian case of Naganagowda Veeranagouda Patil confirms the plaintiff bears the burden of proving the loss. The respondent proved nothing beyond the vehicle's asserted value.

p. 5
03

The role of pleadings in defining a plaintiff's case

Holding

Evidence at variance with pleadings cannot found an award; courts must not surmise the nature of a claim

Reasoning

The re-amended plaint complained only of detention of title documents, not of the vehicle itself, yet testimony asserted the bank took the lorry. This variance led the trial judge to speculate that there had been a constructive conversion. The Court held pleadings exist to inform the opposing party and the court of the case to be met, so that issues for determination are clear; a judge who surmises a claim errs in principle.

p. 5
04

Interest on general damages

Holding

Interest on general damages is generally awarded from the date of judgment, but the court declined to decide the question as moot after setting aside the principal award

Reasoning

The court stated the principle that the award of interest is discretionary but is ordinarily granted from the date of judgment, being the date when the principal obligation to pay is established, citing Prem Lata v Peter Musa Mbiyu. Since the Kshs. 4,500,000.00 award was set aside, there remained no general damages award on which interest could run, so the issue did not require determination.

p. 6

Legal principles established

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  • Special damages and claims for loss of profits must be specifically pleaded and proved before an award can be made
  • A plaintiff claiming damages in detinue must show the loss suffered as a result of the wrongful detention of the goods
  • A court may not speculate or surmise as to the nature of a plaintiff's claim; pleadings must clearly define the case

Court orders

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  1. 1.Appeal allowed and judgment of the High Court set aside to the extent of the award of Kshs. 4,500,000.00
  2. 2.Appellant awarded half costs of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 191 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific provision invoked in the judgment)

Relief refused

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Setting aside the award of Kshs. 220,908.21 and the order for release of title documents

Those reliefs were not challenged on appeal and stood; the appeal was confined to the Kshs. 4,500,000.00 award and interest

p. 4

Determining the interest question

Having set aside the principal award, the interest question became unnecessary to decide

p. 6

Costs

The appellant will have half costs of the appeal.

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.

For those reasons we consider that the appeal has merit and allow the same and set aside the judgment of the High Court to the extent of the award for Kshs. 4,500,000.00.
p. 6Final orders - partial setting aside of the High Court award
The appellant will have half costs of the appeal.
p. 6Costs order
It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim.
p. 5Function of pleadings
In order to recover damages of detinue, the plaintiff must show the loss suffered as a result of the defendant’s wrongful detention of his goods.
p. 5Burden of proof in detinue
the respondent should have been able to place material before the trial court demonstrating, on a balance of probabilities the loss he suffered
Pleading and proof of quantifiable loss

Issues in the judgment

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minor

The judgment inconsistently renders the overpayment figure, alternating between Kshs. 220,908.21 and Kshs. 220,909/21

minor

The trial judge's name is spelled inconsistently ('Khaminwa' in the appeal header, 'Khamniwa' in the body)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Commercial Bank Limited v Sheikh Osman Mohammed [2013] KECA 61 (KLR)", Case Analysis (2013). Civil Appeal No. 179 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/61/eng@2013-12-20

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