Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 83 of 1995· [1996] KECA 202 (KLR)

Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein

Court of Appeal of Kenya
26 January 1996
RKR.O. KwachROR.S.C. OmoloASA.B. Shah
0 words in judgment
View original judgment Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed Bamburi Cement unlawfully blocked a transporter's business, but slashed his damages from Shs.3.78 million to Shs.40,000 because he couldn't prove his losses.

What this practically means

#

Executive summary

#
The Court of Appeal at Mombasa (Kwach, Omolo and Shah JJ.A.) heard Bamburi Portland Cement Company Limited's appeal against a High Court judgment (Wambilyangah, J.) awarding the respondent, a cement transporter, Shs.3,780,000/- as special damages after Bamburi barred his lorries from its Bamburi plant from 11th August 1992 to coerce payment of a debt he owed to Kencem Ltd, Bamburi's separate marketing subsidiary. All three judges delivered separate judgments but were unanimous. On liability, the court affirmed the trial judge: Bamburi, a monopoly cement manufacturer, knew of the respondent's customer contracts and intentionally prevented their performance, amounting to unlawful inducement of breach of contract; the elements of the tort are the act, the intent and the resulting damage, and an owner's right to exclude persons from premises did not justify this mode of exclusion. On damages, the appeal succeeded: special damages must be specifically pleaded and strictly proved, and the respondent's unsupported oral evidence, unaccompanied by audited accounts or tax returns, could not sustain the award; the respondent also failed to mitigate by delaying his injunction application. The court set aside Shs.3,780,000/- and substituted nominal damages of Shs.40,000/- (Shs.1,000/- per day for 20 working days over two months). Shah JA additionally declared Order 21 r.7(4) of the Civil Procedure Rules ultra vires section 94 of the Civil Procedure Act. Costs: appellant received two-thirds of appeal costs; respondent received superior court costs based on the reduced award.

Key legal issues

#
01

Liability for inducing breach of contract

Holding

The appellant, knowing the respondent had customers whose contracts could only be performed with continued access to its premises, capriciously and unlawfully barred the respondent's lorries to coerce payment of a debt owed to a separate legal entity (Kencem), thereby intentionally invading the respondent's contractual rights.

Reasoning

The appellant knew of the respondent's customers, as its own sales manager admitted. Kencem was a separate legal entity and had not authorised the appellant to act as debt-collector; Kencem's advocates were already collecting the debt. The appellant's letters to the respondent's customers showed knowledge and intention. Whether framed as inducement, procurement or interference, the conduct was unlawful arm-twisting.

p. 7
02

Proof of special damages

Holding

The award of Shs.3,780,000/- as special damages was wrong: the damages were neither specifically pleaded nor strictly proved, and the respondent's unsupported oral evidence of daily earnings could not sustain the award.

Reasoning

The respondent claimed Shs.24,000/- per day but produced no audited accounts or tax returns despite asserting he had them. It cannot be assumed that substantial business yields profits; overheads were not considered. Special damages must be strictly proved and the trial judge had no discretion in the matter.

p. 8
03

Mitigation of damages

Holding

The respondent failed to mitigate by waiting over two months to file suit and six months to apply for an injunction which was ultimately granted by consent; damages were limited to a two-month period at a nominal daily rate.

Reasoning

Had the respondent moved the court expeditiously, he would have obtained access for his lorries within about two months. His lethargy in prosecuting a claim of Shs.24,000/- per day undermined his own case. The duty to mitigate rests on the party suffering the damage.

p. 8
04

Right to exclude persons from premises

Holding

While an owner may generally exclude persons without legitimate business on his premises, that right did not avail the appellant whose mode of exclusion intentionally caused breaches of the respondent's contracts with third parties.

Reasoning

The respondent came to the premises for a mutually beneficial commercial purpose; the appellant knew stopping him would cost him customers and business. The wrong lay in the mode and purpose of the denial of entry, not in the right of exclusion itself.

p. 7
05

Validity of Order 21 rule 7(4) of the Civil Procedure Rules

Holding

Order 21 rule 7(4) of the Civil Procedure Rules, purporting to confer on registrars a power reserved by section 94 of the Civil Procedure Act exclusively to the High Court, is ultra vires the Act.

Reasoning

Section 94 of the Civil Procedure Act requires leave of the High Court for execution of a decree before taxation; the rule cannot confer on the registrar and deputy registrar a power the statute reserves exclusively to the High Court.

p. 8

Legal principles established

#
  • Special damages must be both specifically pleaded and strictly proved; a trial judge has no discretion to award unproved special damages.
  • The tort of unlawful procurement of breach of contract requires the act, the intent and the resulting damage; the claimant must show an intentional invasion of contractual rights, not merely that breach was the natural consequence of the defendant's conduct.
  • An act of inducement by itself is not actionable; the procurer must act with the requisite knowledge and intention.
  • A party suffering damage is under a duty to mitigate, including by promptly seeking injunctive relief.
  • Order 21 rule 7(4) of the Civil Procedure Rules is ultra vires section 94 of the Civil Procedure Act, which reserves the power to grant leave for execution before taxation exclusively to the High Court.

Court orders

#
  1. 1.Appeal against liability dismissed
  2. 2.Appeal against assessment of damages allowed
  3. 3.Award of Shs.3,780,000/- set aside and substituted with nominal damages of Shs.40,000/-
  4. 4.Appellant awarded two-thirds of the costs of the appeal
  5. 5.Respondent awarded costs in the superior court, such costs to be based on the award made on appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder 39 rr 1 and 2
  • Civil Procedure RulesOrder 21 r 7(4)
  • Civil Procedure Actsection 94

Cases cited (2)

  • Emerald Construction Co. Ltd vs Lowthian
    [1966] 1 WLR 691
  • Allen v. Flood & Taylor
    [1898] AC 1
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 749 of 1992
Jurisdiction invoked
First appellate appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the High Court at Mombasa)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (15)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein", Case Analysis (1996). Civil Appeal 83 of 1995. Source:

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