Oisebe v Kenya Power and Lighting Company Ltd
The bottom line
#Kenya's Court of Appeal confirmed you cannot win general damages for breach of contract in Kenya—only strictly proven, quantified financial losses.
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 entitled to general damages for breach of contract, loss of business and profit
- 2.Whether special damages were proved
- 3.Whether the first appellate court erred in ordering that the amount of Kshs.134,741 in the counter claim be shared on 50:50 basis
- 4.Whether the first appellate court correctly struck out the cross appeal
Key legal issues
#Entitlement to general damages for breach of contract
The appellant was not entitled to general damages for breach of contract, loss of business and profit; such a claim falls in the category of special damages and the first appellate court properly set aside the award.
The Court restated that general damages are not normally awarded for breach of contract because the law aims at strictly compensating quantifiable financial losses rather than punishing the party at fault. Departure is only warranted in exceptional circumstances where the loss cannot be reasonably quantified at filing. The claim for loss of business and profit was in the nature of special damages requiring strict proof, which was not met.
Proof of special damages
The special damages claims (overpayment of 625 units monthly and Kshs. 64,602.10 billed during disconnection) were not strictly proved and were properly dismissed.
Applying Hahn v Singh, special damages must be specifically pleaded and strictly proved. The appellant did not prove the discrepancy between the check meter and faulty meter, that the meter was faulty from 1987, or that he paid the Kshs. 64,602.10. Although the respondent should not have billed for months when supply was disconnected, no evidence of payment was produced.
50:50 sharing of the counterclaim amount of Kshs. 134,741
The Court found no reason to interfere with the first appellate court's order that the Kshs. 134,741 counterclaim be shared equally, as both parties were at fault.
Each party had obligations: the respondent to supply electric power and render accurate bills, the appellant to pay for consumption. The respondent took about 9 months to discover the defect and 10 months to communicate it, and removed the check meter after 6 years instead of 7 days. The appellant had not shown he made payments. Equal sharing was a fair and equitable way of balancing the fault.
Striking out of the cross appeal
The cross appeal, filed more than one year after the appeal without leave or extension of time, was incompetent and properly struck out.
The Civil Procedure Act and Rules do not provide for cross-appeals or their timelines, unlike the Court of Appeal Rules requiring a notice of cross appeal within thirty days. Applying Shah Hemraj Bharmal, inordinate delay without sufficient reason mandates refusal. The cross appeal was filed after directions had been issued and was an afterthought.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law only and will not interfere with findings of fact unless the courts below considered matters they should not have, failed to consider relevant matters, or the decision is perverse.
- General damages are not recoverable for breach of contract; a party claiming breach of contract should seek special damages, with departure from the general rule only in exceptional circumstances where the loss cannot be reasonably quantified at the time of filing suit.
- Special damages must not only be specifically pleaded but strictly proved, as they are not the direct, natural or probable consequence of the act complained of and may not be inferred from the act.
- In the absence of timelines for cross-appeals under the Civil Procedure Act and Rules, a party intending to file a cross appeal must do so within 30 days after being served with the record of appeal or so soon thereafter, or seek leave; failing which the cross appeal risks being struck out as filed out of time.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCCA No. 17 of 2019
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law (Court of Appeal jurisdiction on second appeals)
Relief refused
#Setting aside the first appellate court's judgment and reinstating the trial court's judgment and decree
The appeal was found to be bereft of merit; the first appellate court's findings on damages, special damages, the 50:50 counterclaim apportionment and striking out the cross appeal were all upheld
Costs
The appeal was dismissed with costs to the respondent.
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 Court, on second appeal, con nes itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
the law aims at strictly compensating quanti able nancial losses arising from breach of contract rather than punishing the party at fault by awarding general damages and therefore the court would expect a party claiming breach of contract to seek special damages rather than general damages.
special damages must not only be claimed speci cally, they must also be proved strictly for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.
the party intending to le a cross appeal must do so within 30 days after being served with the record of appeal or so soon thereafter or seek leave of the court to le the cross appeal. A party who fails to do so, risks his or its cross appeal being struck out for having been led out of time.
Upon considering the whole appeal, we nd that it is bereft of merit and is hereby dismissed with costs.
Issues in the judgment
#Typographical error in the date of filing of the first appeal
Inconsistent dates for the cross appeal between the summary of the cross-appeal and the analysis
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.
- ISL Kenya Limited v Export Processing Zones Authority17 Sept 2026applied
Cite this brief
#Cite this brief
Caselaw, "Oisebe v Kenya Power and Lighting Company Ltd", Case Analysis (2026). Civil Appeal E166 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1662/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.