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Court of AppealDismissedCivil Appeal No. 20 of 2004· [2013] KECA 468 (KLR)

Toyota (Kenya) Limited v Express (Kenya) Limited [2013] KECA 468 (KLR)

Court of Appeal of Kenya
19 July 2013
PKP. Kihara KariukiPhilomena Mbete MwiluP. M. MwiluKMK. M'inoti
3,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed Toyota Kenya's claim for missing spare parts because the company could not prove the goods disappeared while in the transporter's custody.

What this practically means

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Executive summary

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This was a first appeal from the decision of Aganyanya, J of the High Court at Nairobi (HCCC No. 1406 of 1994, judgment dated 29th January 2002), dismissing the appellant's claim for KShs.628,044 in respect of spare parts found missing after a container of imported goods was cleared and transported from Mombasa to Nairobi by the respondent clearing and forwarding agent. The appellant raised five grounds, principally that the trial judge erred in failing to find that it had discharged the burden of proof, that the respondent was a common carrier, and that the respondent ought to have proved how the goods were lost. The Court of Appeal, the respondent having been duly served but absent, re-evaluated the evidence. It held that the appellant's own witnesses and the insurance surveyor's report demonstrated that the container was opened and destuffed in the surveyor's absence, leaving the condition of the packages before destuffing unascertainable; the appellant therefore failed to prove on a balance of probabilities that the loss occurred in the respondent's custody. The Court affirmed the evidentiary rule under sections 107 and 108 of the Evidence Act that the burden lay on the appellant, not the respondent, to prove where the loss occurred, and held that even if the respondent was a common carrier, no liability could attach absent proof of loss in its possession. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the appellant discharged the burden of proving that the spare parts were lost while in the respondent's custody

Holding

The appellant failed to discharge the burden; its own evidence showed the container was opened and destuffed in the absence of the independent surveyor, so the loss could equally have occurred at the appellant's premises

Reasoning

The evidence of PW1 and PW3 conflicted as to whether the surveyor was present when the container was opened and offloaded. The surveyor's report stated the container had already been destuffed on his arrival and that he could not identify the condition of the packages prior to destuffing, recommending joint surveys in future. The trial judge's finding that the loss was not proved to have occurred in the respondent's custody was correct and was affirmed.

p. 4
02

Whether the respondent bore any burden of proving how the goods were lost

Holding

No. It was never the respondent's duty to prove how the cargo was lost; the general burden lay on the appellant to establish its case on a preponderance of evidence

Reasoning

Section 108 of the Evidence Act places the burden on the party who would fail if no evidence at all were given; section 107 requires the party asserting facts to prove them. The respondent admitted being the clearing and forwarding agent but denied the loss occurred in its custody; absent the appellant first establishing that probability, the respondent had no burden.

p. 5
03

Whether the respondent was a common carrier and whether that status determined liability

Holding

Even assuming the respondent was a common carrier, nothing turned on it because liability could attach only if the loss was proved to have occurred in its possession

Reasoning

Counsel relied on Halsbury's Laws of England, Coggs v Bernard and Express Transport Co Ltd v BAT Tanganyika Ltd for the attributes of a common carrier. The trial judge made no finding on common carrier status, but the anterior failure of proof on custody was dispositive, so the court did not disturb the outcome on this ground.

p. 5

Legal principles established

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  • On a first appeal, the appellate court is entitled to reconsider, re-evaluate and draw its own conclusions on the evidence, while making allowance for the fact that it did not see or hear the witnesses
  • The burden of proof in a suit lies on the party who would fail if no evidence at all were given by either party; a defendant who denies the loss occurred in its custody bears no burden of proving how the loss occurred until the plaintiff first proves it on a balance of probabilities
  • A party who accepts and takes possession of cargo on the basis that it has been verified and found to tally with the manifest cannot later assert that the cargo was not as it had represented after verification
  • Liability of a common carrier can attach only where it is proved that the loss occurred while the goods were in the carrier's possession

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party bears its own costs of the appeal
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1406 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate structure of the Judicature/Constitution (not expressly cited in the judgment as reproduced)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Toyota (Kenya) Limited v Express (Kenya) Limited [2013] KECA 468 (KLR)", Case Analysis (2013). Civil Appeal No. 20 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/468/eng@2013-07-19

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