Antique Auctions Ltd v Pan African Auctions Ltd [1993] KECA 80 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that credible oral evidence can prove special damages in a civil claim, without needing documents.
What this practically means
#Executive summary
#Key legal issues
#Proof of special damages
The appellant's special damages were properly pleaded (items and dates itemised) and proved to the required standard by the credible evidence of its director, whose past similar claims had been paid by the respondent without resistance.
Special damages must be specifically pleaded and strictly proved. Strict proof was met here: particulars of breach and damaged items were pleaded, prior similar claims were settled without dispute, and the valuation evidence was credible and a minimum claim. Documentary corroboration is not the only mode of proof; credibility of the witness suffices, as in Kampala City Council v Nakaye.
Credibility findings on appeal
The trial magistrate, who saw and heard the witness, was the best judge of credibility; the first appellate judge erred in rejecting findings the magistrate had accepted without basis that they were plainly unsound.
Following Watt or Thomas v Thomas, an appellate court attaches great weight to a trial judge's findings of fact and credibility and should not disturb them unless plainly unsound. The trial magistrate expressly believed the witness; the first appellate judge's contrary view could not stand, particularly as he lacked the benefit of Kampala City Council v Nakaye.
Mitigation
The respondent's plea of failure to mitigate failed; no suggestion was put forward as to how the tenant could have mitigated, and the tenant had complained and the business relationship continued.
The respondent alleged in its defence that the plaintiff failed to mitigate, but led no evidence or suggestion of how mitigation was possible; the tenant had complained whenever floods occurred and the repairs were the landlord's covenant duty. Porter v Jones supports that ordinary use of the premises is not unreasonable conduct breaking the chain of causation.
Landlord's liability for breach of repair covenant
A landlord in breach of a covenant to repair is liable for damage to the tenant's chattels occurring after notice or actual knowledge of the want of repair; the respondent admitted breaches through its witness and carried out repairs in 1983.
Halsbury's Laws states the landlord is liable for damage to the tenant's chattels caused by default in repair after notice. Correspondence from 1975 to 1981 put the landlord on notice; its property supervisor admitted the defects and repairs were only done in 1983, confirming breach of clause 3(b).
Legal principles established
#- Special damages must be specifically pleaded and strictly proved, but strict proof does not require documentary corroboration; credible oral evidence believed by the trial court may suffice.
- An appellate court will not disturb a trial judge's findings on the credibility of witnesses, who saw and heard them, unless the judgment is plainly unsound.
- Evidence in proof of special damages must show the same particularity as is required for its pleading.
Court orders
#- 1.Appeal allowed with costs.
- 2.The High Court's appellate judgment set aside.
- 3.The trial court's judgment restored.
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(3) referred to for delivery by two members); specific appellate statutory provision not cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antique Auctions Ltd v Pan African Auctions Ltd [1993] KECA 80 (KLR)", Case Analysis (1993). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/80/eng@1993-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.