Twiga Chemicals Industries Limited v Allan Stephen Reynolds [2014] KECA 730 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a KShs.4.55 million award against an employer for auctioned goods, but struck out the school fees claim.
What this practically means
#Executive summary
#Key legal issues
#Whether extrinsic evidence was admissible to establish payment of school fees as a term of the employment contract
The trial judge erred in law in awarding the school fees claim of KShs.260,000; the benefit could only accrue while the contract subsisted and the daughter was schooling in Kenya
Although the written contract did not provide for school fees, clause 1 referred parties to the management for particulars of other terms, admitting extrinsic evidence. The parties' conduct - payment from the company's Educational Trust Fund without demand for refund - evidenced the term. However, since the daughter attended school in Kenya only until termination on 3rd October 1997, the award for the notice period could not stand.
Whether the appellant was liable for the loss of goods auctioned by AGS
The appellant was in breach of its contractual obligation to pay reasonable removal costs and was liable for the value of the goods, assessed at KShs.4,550,000 on the best evidence rule
The appellant knew the goods were in AGS's custody; its Managing Director was present when they were packed. Rather than pay or make alternative shipping arrangements, it allowed storage charges to accumulate and the goods to be auctioned. The respondent, having been deported, could not personally contract AGS. The insurance valuation report was the best available evidence of value since most goods had been auctioned.
Whether the respondent failed to mitigate his loss
The duty to mitigate did not defeat the claim because the respondent had been deported and the appellant had agreed to the removal of the goods
While the duty to mitigate is well settled, the respondent had been deported from Kenya when his wife arranged removal. A file note of 29th January 1998 showed the appellant agreed to the removal of the goods to South Africa. The respondent was therefore entitled to be placed in the position he would have occupied had the contract been complied with.
Whether the trial judge was biased
No bias was established
Applying the reasonable and fair-minded observer test, both parties were subjected to the same circumstances at trial, the language used disclosed no bias, and the arithmetic error corrected in the decree was a genuine mistake. The word 'instigation' regarding deportation was insufficient to impute bias.
Legal principles established
#- A first appellate court must re-examine the record afresh, re-evaluate the evidence and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses
- An appellate court will interfere with findings of fact only where the finding is based on no evidence, on a misapprehension of the evidence, or where the judge demonstrably acted on wrong principles
- The parol evidence rule does not apply where the written contract itself leaves room for other terms to be communicated or obtained outside the written document
- Where goods whose value is in issue have been destroyed or disposed of, reliance on the best available evidence, such as an insurance valuation report, is proper even where the maker of the report is not called
- A contracting party in breach who disputes the reasonableness of a third party's quotation should authorise the shipment/performance and recover any excess from the counterparty rather than allow the loss to accumulate
Court orders
#- 1.The claim of school fees of KShs.260,000/= fails
- 2.The claim of KShs.4,550,000/= is upheld
- 3.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 2772 of 1997
- Jurisdiction invoked
- First appellate jurisdiction under the applicable statute empowering the Court of Appeal to re-evaluate the evidence and reach its own conclusions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Twiga Chemicals Industries Limited v Allan Stephen Reynolds [2014] KECA 730 (KLR)", Case Analysis (2014). Civil Appeal No. 300 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/730/eng@2014-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.