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Court of AppealPartially AllowedCivil Appeal No. 185 of 2011· [2014] KECA 417 (KLR)

Eric Adome & 1 other v Pauline Kasumba Osebe & 1 other

Court of Appeal of Kenya
18 July 2014
JOJ.W. Onyango OtienoFAF. AzangalalaSKS. ole Kantai
3,674 words in judgment
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The bottom line

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Kenya's Court of Appeal slashed a damages award to Ksh.2,000, ruling appellate judges can only decide issues actually raised on appeal and claimants must prove their losses with evidence.

What this practically means

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Executive summary

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The first appellant leased a Busia plot to the second respondent, who ran a business through the first respondent as her agent. In October 2003 the appellants broke into the premises, removed stock and effectively evicted the tenant despite rent being paid up. The respondents sued in the Senior Resident Magistrate's Court, which struck out the first respondent's claim for want of locus standi, awarded the second respondent Ksh.46,000/= (stock, weighing machine and overpaid rent), ordered return of shelves and counter, and declined general damages and the Ksh.169,940/= special damages claim. Only the second respondent appealed to the High Court, on the single ground that the magistrate erred in refusing general damages merely because no amount was proposed. The High Court Judge, however, went beyond that ground: he treated both respondents as appellants, awarded the Ksh.169,940/= to the first respondent who was not a party to the appeal, ruled on jurisdiction, and directed parties to file further evidence on general damages. The Court of Appeal allowed the appeal, holding that the Judge's misapprehension of who was before him pervaded the judgment and that a first appellate court must confine itself to the grounds canvassed and cannot order a fresh hearing on evidence already available at trial. It set aside High Court orders (a) to (d), substituted an award of Ksh.2,000/= as general damages for the second respondent, restored the magistrate's orders (i) to (iii), and gave the appellants half the costs here and in the High Court.

Key legal issues

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01

Misidentification of the appellant before the High Court

Holding

The High Court Judge misdirected himself as to who filed the appeal, treating both respondents as appellants although only the second respondent had appealed; this vitiates the judgment.

Reasoning

Only the second respondent appealed to the High Court; the first respondent neither appealed nor challenged the striking out of her claim or the refusal of Ksh.169,940/=. The Judge nonetheless treated the first respondent as an appellant throughout, described both as appellants and awarded sums to the first respondent. This misapprehension ran through the entire judgment and could not be cured under the slip rule.

p. 4
02

Appellate court considering matters not raised on appeal

Holding

A first appellate court errs when it determines and awards on issues not in the memorandum of appeal and not canvassed, including reviving an unchallenged refusal of special damages and ruling on jurisdiction that was not an issue.

Reasoning

The appeal before the High Court raised a single ground on general damages. The Judge nevertheless considered the Ksh.169,940/= claim, which the trial court had rejected and which neither respondent had appealed, and awarded it to the first respondent who was never a party to the appeal; he also pronounced on the trial court's jurisdiction which no one had raised. Either error alone sufficed to allow the appeal.

p. 5
03

Assessment of general damages for wrongful eviction

Holding

The second respondent was entitled to general damages for wrongful eviction, but having failed to lead evidence of profits, efforts to mitigate and pre- and post-incident position, she was entitled only to a minimal award of Ksh.2,000/=.

Reasoning

Damages for breach of contract place the injured party, so far as money can, in the position as if the contract had been performed. The claimant pleaded general damages for loss of business and inconvenience, and had the burden to demonstrate approximate proceeds, profits and mitigation efforts. The Judge had no legal basis to order a fresh hearing on evidence; the appellate court, acting on the trial record, awarded nominal damages of Ksh.2,000/=.

p. 6

Legal principles established

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  • An appellate court must confine itself to the grounds raised in the memorandum of appeal and matters actually canvassed by the parties; it may not award relief on issues not raised or award it to a party who has not appealed.
  • Special damages must be specifically pleaded and strictly proved; unproven special damages cannot be awarded on appeal.
  • A claimant seeking general damages for breach of contract must lead evidence enabling assessment of the loss; absent such evidence only a nominal/minimal award is appropriate.
  • A first appellate court should not order a fresh hearing on an issue already available to the parties at trial; it should act on the evidence on record.

Court orders

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  1. 1.Appeal allowed to the extent that orders (a), (b), (c) and (d) of the High Court are set aside
  2. 2.Order (e) of the High Court substituted with an order that Ksh.2,000/= be paid to the second respondent as general damages
  3. 3.Orders (i), (ii) and (iii) of the learned Resident Magistrate restored, save that the order dismissing the claim for general damages is set aside as indicated
  4. 4.Appellants to have half the costs of this appeal and half the costs in the High Court
On appeal from
High Court of Kenya at Busia
H.C.C.A. No. 29 of 2006
Jurisdiction invoked
First appellate jurisdiction under the Constitution over appeals from the High Court (Article 164 of the Constitution implied; appellate chain from Senior Resident Magistrate's Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Eric Adome & 1 other v Pauline Kasumba Osebe & 1 other", Case Analysis (2014). Civil Appeal No. 185 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/417/eng@2014-07-18

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