Thabiti Finance Company Limited (In Liquidation) & another v Augustine Riwa Abiero [2004] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a KSh 3.5 million award to a landowner whose property was fraudulently sold, confirming compensation at full value.
What this practically means
#Executive summary
#Key legal issues
#Distinction between general and special damages in fraud claims
The damages recoverable were general, not special, because the loss was not quantifiable before trial and special damages were never pleaded
The court revisited the prayers in the plaint, which sought general damages for fraud. Applying the classic formulation, general damages are presumed consequences of the wrong while special damages are exceptional and must be specially claimed and strictly proved. Since the particulars of special damages were not pleaded and the plaintiff did not know his actual loss until trial, the claim was for unliquidated damages whose quantification fell to the court at trial.
Distinguishability of Sande v Kenya Co-operative Creameries
Sande was distinguishable because in that case the appellant knew of and could quantify its loss at the time of filing its defence, unlike the present plaintiff
Counsel for the appellants urged the court to follow Sande. The court held that case had no relevance: the appellant there had suffered a definite, quantifiable loss when it filed its defence, whereas the respondent here could only testify to the value of the suit property and the offer of Shs 3,500,000 received before trial. The case was therefore distinguished and could not be applied.
Measure of damages where the land cannot be returned
Following John Wambugu Njoroge v KCB, the correct measure is the monetary value of the property at the time of deprivation
The court endorsed the principle in John Wambugu Njoroge v Kenya Commercial Bank that a party wrongfully deprived of land who cannot have its return is entitled to be put, in terms of money, in the position he occupied immediately before the deprivation. Shs 3,500,000 represented the value of the suit property before the respondent was deprived of it, so the learned Judge acted correctly.
Legal principles established
#- Special damages are exceptional losses that must be specifically claimed and strictly proved, whereas general damages are presumed to be the direct natural or probable consequences of the wrong
- Where a plaintiff could not know the extent of his loss until trial, the claim is one for unliquidated damages and no question of specially pleaded and proved special damage arises
- A party deprived of land fraudulently is entitled, where return of the land is impossible, to be compensated in money so as to be put in the position he was in immediately before the wrongful deprivation
Court orders
#- 1.The appeal is dismissed with costs
- 2.The first appellant shall pay the costs of the appeal and of the suit in the superior court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1025 of 2000
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal Act, appeals as of right from the High Court in civil matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thabiti Finance Company Limited (In Liquidation) & another v Augustine Riwa Abiero [2004] KECA 89 (KLR)", Case Analysis (2004). Civil Appeal No. 251 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/89/eng@2004-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.