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Court of AppealPartially AllowedCivil Appeal 106 of 2006· [2009] KECA 461 (KLR)

Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority

Court of Appeal of Kenya
13 November 2009
PWP. N. WakiJOJ. W. Onyango OtienoAVAlnashir Visram
5,425 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed KRA illegally seized a truck but cut the payout to Kshs 500,000 because the company couldn't strictly prove its bigger losses.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Waki, Onyango Otieno and Visram, JJA) heard a first appeal against a High Court judgment (Maraga, J., dated 10th March 2006) which had found the Kenya Revenue Authority liable for illegally seizing and detaining the appellant's truck and trailer from 22nd July 1998 to 18th October 1999, yet dismissed the suit entirely with costs because neither special damages claim was proved and general damages, though pleaded, were not prayed for. The Court affirmed the finding of liability, there being no cross-appeal. On damages, it upheld rejection of the Kshs. 910,000 tyres claim because a mere invoice, unendorsed as paid, cannot prove purchase, and rejected the USD 540,000 loss-of-user claim because the transport agreements relied on had expired before the seizure. It nonetheless held the trial judge erred in rejecting the exhibit 8 agreement as forged on grounds never raised by the parties, reiterating that it is dangerous for a court to canvass its own matters. Critically, the Court held that general damages, pleaded at paragraph 8 and denied at paragraph 8A, were properly before the court even without a prayer, applying Odd Jobs v Muhia. Noting the appellant's failure to mitigate, it awarded Kshs. 500,000 general damages with interest at court rates from 10th March 2006, set aside the dismissal, and gave the appellant half the costs of the appeal and of the suit.

Key legal issues

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01

Liability for illegal seizure and detention

Holding

The respondent illegally seized and held the appellant's vehicle; the High Court's finding of liability was affirmed, there being no cross-appeal.

Reasoning

The seizure was under section 106 of the Customs and Excise Act but there was no evidence the appellant produced or made any false document or representation. The Court, revisiting the evidence afresh as a first appeal, agreed the case on liability was proved on a balance of probability. No cross-appeal was preferred, so that finding stood.

p. 3
02

Proof of special damages

Holding

Neither the loss-of-user claim nor the tyres claim was strictly proved; both were properly rejected.

Reasoning

The Kampala–Changugu contract ended before the seizure. The exhibit 8 agreement, though wrongly rejected for forgery, by its own terms expired on 26th June 1998, before the 22nd July 1998 seizure. The tyres claim failed for want of a receipt or witness proving payment; an invoice alone cannot prove purchase.

p. 7
03

General damages pleaded but not prayed for

Holding

The issue of general damages was before the court and the appellant was entitled to an award despite the absence of a specific prayer.

Reasoning

General damages were pleaded at paragraph 8 and denied at 8A of the defence; evidence on the vehicle's active business left the issue for determination. Following Odd Jobs v Muhia, a court may decide an unpleaded (or unprayed) issue left to it at trial, and equity would not allow a wrong without a remedy.

p. 8
04

Court introducing its own grounds for rejecting evidence

Holding

The learned Judge erred in rejecting exhibit 8 as forged when forgery was never pleaded, objected to, or put to the witnesses.

Reasoning

The agreement was listed in the plaintiff's list of documents, produced without objection, and its makers were not cross-examined on authenticity. The Judge's forgery finding was an extraneous matter he raised suo motu, which is dangerous and impermissible.

p. 6
05

Assessment of general damages and mitigation

Holding

The appellant did almost nothing to mitigate; Kshs. 500,000 general damages awarded with interest from 10th March 2006.

Reasoning

The appellant delayed over a year before seeking release and its agent at one point denied ownership of the vehicle. The Court, exercising its own jurisdiction to assess rather than remit given the age of the case, adopted the trial judge's six-month benchmark and fixed Kshs. 500,000 as adequate.

p. 8

Legal principles established

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  • A court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue was left to the court for decision.
  • It is dangerous for a court to canvass its own matters in its judgment and rely on evidence not canvassed by the parties.
  • An appellate court will not disturb an award of damages unless it is inordinately high or low or the judge proceeded on wrong principles or misapprehended the evidence.
  • An invoice is not a receipt for goods supplied unless specifically endorsed as paid.

Court orders

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  1. 1.The decision of the superior court dismissing the case with costs is set aside
  2. 2.Judgment for the appellant in the sum of Kshs. 500,000 with interest at court rates from 10th March 2006 to the date of full payment
  3. 3.The appellant to have half the costs of this appeal and half the costs of the case in the superior court

Authorities

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Legislation

  • Customs and Excise Actsection 106 (Cap 476)
  • Civil Procedure RulesOrder XIV
  • Civil Procedure RulesOrder XX rule 4

Cases cited (5)

  • Selle & Another vs. Associated Motor Boat Co. Ltd
    [1968] EA 123

    Duty of a first appellate court to revisit evidence afresh while allowing for the trial court's advantage of seeing witnesses.

  • Jivanji v. Sanyo Electrical Company Ltd
    (2003) KLR 425

    Appellate court will not disturb a damages award unless inordinately high or low or based on wrong principles or misapprehended evidence.

  • Malindi Air Services and another vs. Halima A. Hassan
    Civil Appeal No. 69 of 2000

    A court has no power to grant a relief a party has not specifically prayed for.

  • Galaxy Paints Co. Ltd vs. Falcon Grounds Ltd
    (2000) 2 EA 385

    Issues for determination flow from the pleadings; judgment may only be pronounced on issues arising from pleadings or framed by parties.

  • Odd Jobs vs. Muhia
    [1970] EA 476

    A court may base its decision on an unpleaded issue if the course of trial shows it was left to the court for decision.

On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 46 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act/rules (first and last appeal on facts and law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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

Cite this brief

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Cite this brief

Caselaw, "Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority", Case Analysis (2009). Civil Appeal 106 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/461/eng@2009-11-13

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