Kimaru v Machira (Civil Appeal 22 of 2021)  KEHC 2354 (KLR) (23 March 2023) (Judgment)
Neutral citation:  KEHC 2354 (KLR)
Republic of Kenya
Civil Appeal 22 of 2021
CM Kariuki, J
March 23, 2023
Philip Gichuki Kimaru
Machira Gichuhi Machira
(Being an appeal against the Judgment of Honourable S N MWANGI Senior Resident Magistrate delivered on 15thSeptember 2021 in the Chief Magistrate Court at Nyahururu Civil Case No. 115 of 2017)
1.This an appeal arising from claim from refund of purchase price plus damages for breach of contract and loss of business, plus interest and costs.
2.The matter was heard and the Plaintiff/Respondent was awarded Ksh. 700,000 as refund of;
3.The appellant being aggrieved lodged instant appeal and set out in the record of appeal.
4.Parties Submissions were filed and exchanged to canvass appeal.
6.The appellant submitted that, the evidence on record was clear that it is the Respondent who indeed breached the agreement and the trial court was therefore wrong in ordering that the Appellant refunds a sum of Kshs. 700,000/= plus 20% damages for breach of contract to the respondent.
a. Award on General Damages of Kshs. 100,000/= for breach of contract.
7.The aforesaid award was erroneous and not available in the instant case.And relies on the case of Kenya Power & lighting Co. Ltd v Abel M. Momanyi Birundu  eKLR’,and Kenya Tourist Development Cooperation v Sundowner lodge Limited  eKLR. which held general damages are not allowable in addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication.
8.The court to set aside the award of Kshs. 100,000/=, if the Appeal on (a) above shall not succeed.
C Award of Kshs. 1,825,000 as loss of business
9.He submitted that, this award was erroneous, a claim for loss of business qualifies to a claim for special damaged which must be specifically pleaded and strictly proved. He relies on Richard Okuku Oloo v South Nyanza Sugar Co Ltd  eKLR,Jivanji case (supra),Coast Bus Service Limited v Murunga & others Nairobi CA no. 192 of 1992 (UR) and
10.The Respondent did not plead Special damages for loss of business in his plaint dated 11/5/2017 found in page 4 and 5 of the Record of Appeal. The daily earnings that were to be expected from the matatu business alluded to were not pleaded in the plaint with specifications. The claim for loss of business was not proved to the required standards.
11.The records produced were not sufficient proof.
12.Thus the court is urged toto allow the Appeal in its entirety with costs for the lower court and the Appeal being awarded to the Appellant.
14.The respondent submit that, timeline in the sale agreement was of essence on purchase price and possession. no consideration time line was breached as in this case,as the Appellant had received money and had failed and or neglected to deliver the motor vehicle. In fact, he took it into hiding where he knew the Respondent would not find it as he knew only of his Nairutia home and it dilapidated in value as he watched while he went ahead to keep the Respondent’s money and in blatant breach of their contract.
15.The only proof of the Appellant’s intention to defraud the Respondent is very simple. He received the money, lied for days on the about the whereabouts of the motor vehicle while it was parked in his homestead and never once asking the Respondent to even come collect the Motor Vehicle from the homestead or at all. Thus appellant breached contract.
16. Issue 1: award on general damages of Kshs. 100,000/= for breach of contract
17.The respondent relies on the case of Gideon Mutiso Mutua v Mega Wealth International Limited  which held that the general law of contract is that where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things from such a breach of contract itself or such as may be reasonably supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of the breach of it.
18.He submitted that court ought uphold that the Respondent was entitled to general damages for breach of contract by the Appellant.
19. Issue Iiaward of Kshs. 1,825,000 as loss of business.
20.He submits that, he did indeed prove the amount the suit motor vehicle would have earned him had the defendant given him the possession of the same, and relied on the case of Wambua v Patel &Another KLR 336, where the court had found the plaintiff had not kept proper records of what he earned and still was awarded special damages claimed. .
21.He submits that, the loss of business was specifically pleaded as the same is in the plaint as prayer ii and the same was strictly proved since the Respondent was not in possession of the suit motor vehicle, he could not have used it to prove loss of business.
22. Issues, analysis, and determinationThe court has gone through the record, proceedings, pleadings, and submissions, and thus the court finds the issues are; whether there was a breach of the Agreement/Contract dated 17th October 2016.If the above is in the affirmative, what were the remedies to the aggrieved party or to the innocent party? What is the order as to costs?
23.In Gitobu Imanyara & 2 others v Attorney General  eKLR, the Court of Appeal held:
24.In Nkube v Nyamiro  KLR 403, the same court stated:
25.The parties entered into an agreement aforesaid with the terms;Prices Kshs. 700,000 paid immediately and possession same day of the transaction.
26.Other terms of the contract are:
27.Despite payment of the purchase price as agreed, the possession was not given as per the contract. From amendment to the agreement or subsequent agreement was made to vary the terms.
28.Thus, by a plaint dated 11/5/2017 a suit No. 115 of 2017 was lodged claiming.
- Refund of consideration/purchase price.
- Damages for breach of contract
- Loss of business from date of Agreement until refund of consideration interest and costs,
29.Prior to instituting above suit, the Respondent issued demand notice claiming - vide letter of 1/11/2016:
- Refund of purchase price Ksh. 700,000/=
- Damages Kshs 140,000/=
- Collection charges Kshs. 50,400
- Total 890,000/=
30.In defense dated 15/6/2017, states in part that payment of Kshs. 700,000/= price to the Respondent was done on the execution of the agreement, and the possession of the motor vehicle subject to the Agreement was to be done the same day of the agreement.
31.The statement of the Appellant filed states that the same possession was given. Thus, the claim was denied in his evidence as a court-recorded appellant testimony thus;
32.The words of the appellant and the Agreement are incongruent, and thus, the written Agreement prevails. He never answered the demand letter to give his version of why possession was not given as agreed.
33.Thus, the terms of the Agreement were breached by the Appellant by not giving possession of m/v as agreed. On damages, the principles are clear. Special damages must not only be pleaded strictly but also strictly proved.a)What was pleaded?b)What was proved?
34.On penalties, 20% of the purchase price. What is the law?
35.The trial court awarded the following:
36.The court, in arriving at the above decision, held;
37.In Dharamshi v Karsan  EA 41, it was held that general damages are not awardable for breach of contract in addition to the quantified damages as it would amount to a duplication. And Securicor Courier (K) Ltd v Benson David Onyango & another  eKLR, the Court of Appeal reiterated that general damages are not awardable for breach of contract. (See also Provincial Insurance Co. EA Ltd v Mordechai Mwanga Nandwa, (KSM Civil Appeal No 179 of 1995,)
38.The above decisions affirm the position that what is suffered or is believed to have been suffered, the damage that is to be compensated by way of damages, can only be known by the party and it is claimed in specific terms which has to be proved.
39.In the agreement the damages agreed was penalty on penalties of 20% of the purchase price (ksh 700,000) which translates to ksh 140,000. No other damages in the name of general damages could be awarded.
40.On special damages, the case of the Court of Appeal stated in Capital Fish Limited v Kenya Power and Lighting Company Limited (supra):The appellant apart from listing the alleged loss and damage, it did not… lead any evidence at all in support of the alleged loss and damage. As it were, the appellant merely threw figures at the trial court without any credible evidence in support thereof and expected the court to award them. Indeed, there was not credible documentary evidence in support of the alleged special damages.
41.In David Bagine v Martin Bundi  eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited  64 TLR 177), where the court stated that:
42.In Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.
43.In Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another  JELR 48225 (SC) (SC 221/2005 (16/2/2011)), Mahmud Mohammed, JSC. delivering the judgment of the supreme court of Nigeria stated:
44.The principles that run through the decisions referred to above, are clear that special damages must be strictly proved and that courts must not relax this principle. The respondent did not attempt to plead and prove his particularized claims as required by law.
45.Thus, the award of ksh 1,825,000 loss of business was not pleaded and proved to the standard set by the law. Thus, the court holds that the only payable amount to the respondent were;i. Refund of ksh 700, 000 purchase price, agreed damages 20% of the purchase price (ksh 140,000), interest from the date of the filing of the suit to date of payment in full plus costs of the lower court. As to the costs of the appeal parties to bear their costs as the appeal partially succeeded.
DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 23RD DAY OF MARCH 2023...........................CHARLES KARIUKIJUDGE