The gist of the appellant’s defence was that 47 and not 53 tyres out of the consignment, were not accounted for; that contrary to the respondent’s assertion, the value of a single tyre was not Ksh 29,000, and finally that the loss was attributable to the negligence of a third party namely a security company which was guarding the warehouse and the appellant intended to join it in the proceedings at a later stage.

          The grounds relied on in this appeal are:

Mr. Jengo, learned counsel for the appellant highlighted the same grounds in his submission and further emphasized that because in the evidence the respondent had conceded that he was not the owner of the goods, no damage or loss could have, in the circumstances been occasioned to the respondent. He submitted that it is the owner of the goods who had incurred the loss and that loss could only be the purchase price of the goods as per the shipping documents or any other relevant documents such as invoices and receipts and since these were never produced, there was no proof of the claim up to the required standard. He further submitted that according to the evidence the claim was for special damages and the same was neither specifically pleaded nor strictly proved at the trial in the superior court and since the evidence tendered had revealed that the respondent’s claim was in negligence and that no particulars of negligence had been given the claim was fatally defective. Mr Jengo relied on various authorities in support of his submission on special damages.

Mr. Oddiaga, learned counsel for the respondent submitted that the appeal was procedurally incompetent having been brought outside the extension of 21 days previously granted by court and consequently rule 83 of the Court’s rules gives the Court power to dismiss such an appeal; that it was not in dispute that the two parties were involved in a commercial relationship and that relationship placed the responsibility on the appellant as a warehousing agent to take care of the goods; that the appellant did admit that it could not account for a total of 47 tyres when it was asked to release them; that it was incorrect for the appellant to contend that the respondent had not pleaded special damages as this was apparent from the contents of paragraph 4 of the plaint, and that as regards proof of the loss the respondent had satisfied the court by way of oral evidence of Mr Mkala that the value of the goods was Kshs. 29,000 per tyre and evidence to this effect was orally given and accepted by the superior court and that in this regard the requirement of the strict proof of special damages did to take away the respondent’s right to inform the Court what it believed to be the current value of the goods and consequently failure to produce documentary evidence or an expert’s opinion on value was not fatal to the claim.

“The plaintiffs claim against the defendant is for the sum of Kshs 1,537,000 being value of 53 tyres at Kshs 29,000 each which goods were handed over to the defendants by plaintiff during and in the course of its business as warehouses in the month of November 1993.”

          And on the issue of price per tyre, the learned Judge delivered himself, thus:

“I have examined the demenour of the plaintiff’s witness Mr. Bakari Mkala. He was firm under intense cross examination. I am convinced that though he did not produce any document to establish that each tyre cost Kshs.29,000 he was telling the truth. I believe that he actually checked with the prices at the market and that the prices were known to him before he came to court”.

          In addition, concerning the contention that the cause of action as per the evidence was negligence, particulars of which had not been rendered, our view is that the averments in paragraph four of the plaint clearly reveal that the two parties were in a contractual relationship of bailment or a contract for storage of goods, the consideration of which was not in dispute. With respect, the appellant having received consideration to store the tyres cannot now turn around and assert that the respondent could not recover damages for the loss of the tyres because the respondent (the other party to the contract) was allegedly not the owner of the tyres. For the purposes of recovery of damages, we think that neither the negligence of the appellant nor the act of a third party which caused the loss would negate recovery of proven damages in the circumstances.      Indeed, at this time and age a party cannot be denied relief because he has not specifically described the formal name for his cause of action. Forms of actions were buried many centuries ago and in our course we have overrun the age of the forms of action into modern formless days where we look at the substance and not the form. As the classic works of Maitland and Pollock would put it “we cannot allow the forms of actions to rule us from their grave”!

          In our view, the respondent had a clear cause of action which in turn attracted the remedy given to it by the superior court which we hereby affirm.

          Accordingly, the appeal is dismissed with costs to the respondent. It is so ordered.

         Dated and delivered at Mombasa this 4^th day of March, 2011.