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Court of AppealPartially AllowedCivil Appeal No 27 of 1985· [1988] KECA 143 (KLR)

Samwel Kanogo Ritho v John Mwangi Kariithi & Another

Court of Appeal
12 October 1988
JNJ.O. NyarangiFAF.K. ApalooJMJ.R.O. Masime
1,322 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a court which grants an injunction for breach of contract can also award damages, and awarded over Kshs 510,000.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a decision of the High Court (Trainor, J) in a contract dispute. The trial judge had found that the appellant and the first respondent were party to a contract and that the first respondent was in breach. He refused specific performance as sought and declined to award damages on the ground that none had been proved, holding the damages position 'ephemeral' and any assessment anticipatory; he did, however, grant an injunction restraining the respondent from interfering with the appellant's development of the suit premises. On appeal, the specific performance grounds were abandoned because the first respondent had voluntarily executed a transfer of the suit premises to the appellant, leaving only the refusal of damages. The appellant argued that, having granted the injunction, the judge erred in not awarding damages, invoking section 3(1)(c) of the Judicature Act which imports equitable doctrines into Kenya. Relying on Leeds Co-operative Society Ltd v Slack on Lord Cairn's Act and on this Court's earlier decision in Openda v Aann, the Court of Appeal held that a court with jurisdiction to entertain an injunction application may award damages in addition to or in substitution for the injunction, and that a party can claim damages in lieu of specific performance. The Court held the appellant entitled to damages under both heads of his claim, set aside the part of the High Court judgment dismissing the damages claim, and substituted awards of Kshs 250,000 for increased construction costs and Kshs 260,250 for loss of rent. The appellant received the costs of the appeal and interest on the decretal amount at court rates. The appeal was partially allowed.

Key legal issues

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01

Jurisdiction to award damages in lieu of or in addition to an injunction

Holding

The court, having jurisdiction to entertain an application for an injunction against breach of contract, may award damages to the injured party in addition to or in substitution for the injunction

Reasoning

Section 3(1)(c) of the Judicature Act imports the doctrines of equity into Kenya. Lord Cairn's Act, as construed in Leeds Co-operative Society Ltd v Slack, empowers a court entertaining an injunction application to award damages either additionally or in substitution. Damages in addition compensate past injury; damages in substitution cover future injury too. The Court of Appeal had earlier reinforced this in Openda v Aann.

p. 2
02

Entitlement to damages for increased construction costs and loss of rent

Holding

The appellant was entitled to damages under both heads - increased cost of construction and loss of rent - notwithstanding the trial judge's view that damages were too speculative

Reasoning

The trial judge had found breach of contract and granted an injunction against interference. The appellant discontinued development due to the respondent's interference and suffered increased construction costs and lost rent on resumption. On the authorities, the court held the appellant entitled to damages under both heads, quantifying them at Kshs 250,000 and Kshs 260,250 respectively.

p. 2

Legal principles established

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  • A party can claim damages in lieu of specific performance under the equitable principles imported by the Judicature Act
  • Where a court grants an injunction to protect a plaintiff from a defendant's interference, it may award damages in addition to or in substitution for the injunction

Court orders

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  1. 1.Set aside that part of the High Court judgment which dismissed the appellant's claim for damages
  2. 2.Award damages of Kshs 250,000 being the difference in the cost of building between 1978 and 1982
  3. 3.Award Kshs 260,250 being loss of rent for the five flats at Kshs 1,375 per flat per month from January 1, 1979 to February 28, 1982
  4. 4.Appellant to have costs of the appeal and interest on the decretal amount at court rates
On appeal from
High Court
null
Jurisdiction invoked
First appeal to the Court of Appeal (no specific constitutional/statutory provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samwel Kanogo Ritho v John Mwangi Kariithi & Another", Case Analysis (1988). Civil Appeal No 27 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/143/eng@1988-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.