Abson Motors Limited v Dominic B. Onyango Konditi [2018] KECA 161 (KLR)
The bottom line
#The Court of Appeal ruled that a person suing for breach of contract must prove their case themselves, even if the other side stays silent.
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 appellant was liable for breach of contract
- 2.Whether the appellant is liable to pay damages to the respondent and if so, the quantum thereof
Key legal issues
#Whether the appellant was liable for breach of contract
Breach of contract on the part of the appellant was not proved. The tonnage was not a term of the written agreement, the respondent took possession and used the Truck, kept it as his own property and was himself in breach for non-payment of the purchase price.
The written agreement did not specify tonnage. The respondent took possession on 1 October 2011, used the Truck for several trips, and stated he decided to keep the truck as his property. He remained in possession with the Truck registered in his name, while owing Kshs.508,749/= of the purchase price, making him the party in breach. The claim of fraudulent misrepresentation and breach was therefore not made out.
Whether the trial Judge erred in treating the defendant's failure to call evidence as proof of the plaintiff's case
Yes. The burden of proof lay on the respondent under section 107 of the Evidence Act notwithstanding the appellant's failure to call witnesses; the trial court's contrary conclusion was a misdirection.
The High Court held that in the absence of evidence in rebuttal from the defendant, the plaintiff proved his case on a balance of probabilities. The Court of Appeal held this to be a misdirection: the plaintiff asserting the claim bore the burden of proving it, and the defendant's failure to adduce evidence does not shift or discharge that statutory burden.
Whether loss of business and other special damages were strictly proved
No. A single invoice for one week's payment did not meet the required standard of certainty and particularity; towing and repair charges were too remote, with no nexus to the appellant.
The Court applied the rule that special damages must be pleaded and strictly proved, citing David Bagine v Martin Bundi and related authorities. The respondent produced one invoice of Kshs.68,000/= for one week's work for Coca Cola and extrapolated weekly losses from it. Following Total (Kenya) Limited v Janevams Limited and Nyamogo & Nyamogo Advocates v Barclays Bank, this lacked particularity. Towing and repair charges failed the Hadley v Baxendale remoteness test.
Whether the order for refund of the purchase price and release of the security log book was sustainable
No. The respondent retained possession of the Truck, which remained registered in his name, and had an outstanding balance of Kshs.508,749/=; ordering a refund while he kept the Truck was a misdirection, and the log book could not be released while it remained security for the unpaid price.
Mitigation principles (African Highlands Produce Limited v Kisorio) and the equity of the parties' positions required that the respondent not both keep the Truck and receive a refund. The log book for KBF 662S had been deposited as security under clause 7 of the agreement and, the purchase price being unpaid in part, the order for its release could not stand.
Legal principles established
#- On a first appeal, the appellate court is entitled to reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
- The burden of proving a claim rests on the plaintiff notwithstanding the failure of the defendant to call evidence; a defendant's failure to testify does not discharge the plaintiff's burden under section 107 of the Evidence Act.
- Special damages must be specifically pleaded and strictly proved with a degree of certainty and particularity.
- A pro forma invoice or single invoice is not satisfactory proof of loss of business; loss of business must be specifically pleaded and proved.
- A plaintiff who retains the goods purchased and keeps them as his own property cannot obtain a refund of the purchase price; damages cannot include sums due to the plaintiff's own neglect, and there is a duty to mitigate.
Court orders
#- 1.The appeal is allowed with costs
- 2.The judgment of the High Court is set aside
- 3.The respondent's suit is dismissed
- 4.Costs of the suit in the High Court are awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 164 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal from the High Court in a civil case)
Relief refused
#Refund of purchase price and release of security log book by the appellant
Liability for breach of contract was not proved; the respondent remained in possession of the Truck, still owed Kshs.508,749/= of the purchase price, and the log book for KBF 662S was held as security for the unpaid balance
Claim for special damages for loss of business
The claim was pleaded but certainty and particularity of proof were lacking; a pro forma invoice was not satisfactory proof of loss
Towing and repair charges
No nexus between the appellant and the accident; the damage was too remote
Costs
The appeal was allowed with costs; the judgment of the High Court was set aside, the respondent's suit dismissed, and costs of the suit awarded to the appellant.
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.
This being a first appeal, we are entitled to reconsider the evidence, evaluate it and draw our own conclusions but make allowance for the fact that we have not seen or heard the witnesses.
The respondent was the one asserting his claim and under section 107 of the Evidence Act the burden of proof was upon him to prove his claim notwithstanding the failure of the appellant to call any evidence.
A claim for special damages must be specifically pleaded and proved with a degree of certainty and particularity.
The upshot is that we allow the appeal with costs and set aside the judgment of the High Court, and substitute thereto an order dismissing the respondent's suit and awarding costs of the suit to the appellant.
Issues in the judgment
#The judgment states the agreement for sale was entered into on 25th July 2017 in one passage, which is inconsistent with the consistently stated date of 25th July 2011.
The registration number of the vehicle whose log book was deposited as security is variously given as KBF 662S and KBE 662S in the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwaura Karuga v Apollo J. Kharuga & another [2020] KEELC 2224 (KLR)[2020] KEELC 2224 (KLR)28 May 2020
Cite this brief
#Cite this brief
Caselaw, "Abson Motors Limited v Dominic B. Onyango Konditi [2018] KECA 161 (KLR)", Case Analysis (2018). Civil Appeal No. 27 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/161/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.