African Highland Produce Limited v John Kisorio

Court of Appeal, at Nakuru September 28, 2001

Tunoi, Owuor & Keiwua JJ A

Civil Appeal No 264 of 1999

(Appeal from the Judgment and decree of the High Court of Kenya

at Eldoret (Lady Justice Nambuye) dated 4th October, 1999 in

HCCC No 312 of 1997)

Damages - mitigation of damages – the guiding principles of law in mitigation of damages or loss - scope and extent of the plaintiff’s duty to mitigate his loss - what is reasonable for a plaintiff to do to mitigate his loss - incidence of the burden of proving what is reasonable.

The respondent was a businessman operating in Eldoret and Nairobi. At the material time, he owned a motor vehicle of the BMW brand which was used to take his young children to school in Nairobi. On 13th April, 1997, the vehicle was involved in an accident and it was extensively damaged. The appellant admitted total liability for the accident. After the damage to his car, the respondent hired a luxurious Land Cruiser vehicle for the use of his children for which he paid Kshs 6,800 per day for six months. In the suit he had filed in the High Court against the appellant, the respondent had told the court that the reason for his failure to pay for his repaired car and to collect it within a reasonable time, which could have been 21 days, was that the appellant had broken several promises to pay for the damage. The High Court (Nambuye J) found that the respondent had failed to mitigate his loss and allowed Kshs 716,000 out of his total claim of Kshs 1,432,000 for loss of use of the BMW vehicle. The appellant appealed.

Held:

1. It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues. He cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintiff realises that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those of the defendant.

2. The plaintiff is under no obligation to injure himself in his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to minimise the damages, or embark on dubious litigation.

3. The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.

4. The respondent had not taken reasonable steps to mitigate his loss. He had not acted prudently. He acted unreasonably and the High Court erred in granting him any loss of user for more than 21 days which was the period necessary to effect in full all repairs on his car.

Appeal allowed, award of Kshs 716,000 for loss of user set aside and substituted with an award of Kshs 142,800 (Kshs 6,800 per day for 21 days).

Cases

No cases referred to.

Texts

Simonds, V (Ed) (1953) Halsbury’s Laws of England London:

Butterworths & Co Ltd 3rd Edn Vol II p 289

Statutes

No statutes referred.