Antique Auctions Ltd v Pan African Auctions Ltd
Court of Appeal, at Nairobi September 29, 1993
Gachuhi & Cockar JJ A
Civil Appeal No 126 of 1987
Landlord and Tenant – covenant to repair by landlord – no liability for loss incurred prior to receipt of notice to repair.
Damages - special damages – meaning of- proof of special damages-whether special damages may be proved by evidence other than documentation.
The appellant, who was the respondent’s tenant, successfully sued the latter for special and general damages arising out of an alleged breach of covenant by the respondent landlord to maintain in good and tenantable condition its premises leased to the appellant. The appellant pleaded in its plaint that the respondent neglected to keep or maintain parts of the demised premises in good and tenantable condition thereby permitting rainwater from floors above to flood into the premises occasioning the appellant expense, inconvenience and damage to goods belonging to the appellants’ clients.
The trial magistrate, upon conclusion of the trial, awarded the appellant Kshs 60,185 as special damages and Kshs 14,815 as general damages.
The respondent appealed to the High Court against the judgment of the subordinate court but was successful only to the extent of the award of special damages which the High Court disallowed. The appellant consequently appealed to the Court of Appeal against the High Court’s decision.
In his grounds of appeal, the appellant faulted the High Court’s decision on five grounds which included submission that the High Court erred in suggesting special damages could only be accepted if corroborated and in applying high a burden of proof and not deciding on a balance of probabilities.
1. Where a landlord is guilty of breach of covenant to repair the demised premises, he is not liable for any damage suffered prior to the receipt by him of the notice to repair or to the time at which he has actual knowledge of the want of repair.
2. Proof of damages is by evidence and the court will decide each case on a balance of probability.
3. Special damages are such as the law will not infer from the nature of the act. They do not follow ordinary course. They are exceptional in their character and therefore, they must be claimed specifically and proved strictly.
4. The respondent had prior notice of the breach and was put on notice of the instant claim for failure to carry out proper repairs through correspondence before the suit was filed.
5. There was no evidence shown that the defendant disputed the claim specifically or demanded further and better particulars when the suit was filed until it filed its defence.
6. In order for the appellant to succeed, it was bound to plead and prove special damages on the pleadings. Once this was done, it was then the question of how the appellant led the evidence to prove its claim.
7. It is true that special damages must be proved, but it is not acceptable that damages can only be proved by supporting documentary evidence. It all depends on the credibility of the witness.
8. The appellant’s witness gave credible evidence and was believed by the trial Senior Resident Magistrate.
1. Porter v Jones  2 All ER 570
2. Kampala City Council v Nabaye  EA 446
3. Ouma v Nairobi City Council  KLR 297
4. Hahn v Singh  KLR 716; [1982-88] 1 KAR 738
5. Watt (or Thomas) v Thomas  AC 484;  1 All ER 582
1. Hailsham, Lord et al (1981) Halsbury’s Laws of England, London: Butterworths & Co 4th Edn Vol XXVII para 307
2. McGregor, H (1988) McGregor on Damages, London: Sweet and Maxwell 15th Edn pp 1, 21, 23 paras 1790, 1791
Evidence Act (cap 80) section 12