Amalo Company Lmite`d v Smithkline & Beecham Consumer Health Care Ltd
The bottom line
#Kenya's Court of Appeal threw out a distributor's multi-million-shilling claims because they weren't properly documented in court pleadings and no exclusive agreement actually existed.
What this practically means
#Executive summary
#Key legal issues
#Whether a sole distributorship was established
No sole distributorship was created; the appointment letters appointed the appellant as a distributor, the 8th August 1996 letter did not vary them, and the 12th February 1998 meeting minutes recorded that the appellant had no claim regarding sales to others in its area
The letter of 10th August 1995 and the formal Letter of Appointment appointed the appellant as a distributor subject to conditions, without exclusivity. The 1996 letter merely informed the appellant it was the only distributor for that period. The appellant's own director conceded in cross-examination that the letters did not appoint it as sole distributor, and the 1998 minutes recorded agreement that its exclusivity claim had no standing.
Whether loss of profits and related compensation claims were recoverable
All such claims were special damages requiring specific pleading and strict proof, which the appellant failed to satisfy
The trial judge found no particulars or documentary evidence of profits were pleaded or produced. The court endorsed the long line of authority that special damages must be pleaded and strictly proved, and rejected counsel's characterization of loss of profits as a 'hybrid' claim not requiring specific pleading.
Liability for expired and unexpired stocks
The respondent was not liable because the appellant denied it access to the warehouse where the products expired
The appellant's own director admitted the company refused the respondent's agents access to inspect and collect goods, despite letters warning that denial of access would relieve the respondent of liability for expiry. The trial judge's dismissal of prayers (c), (d) and (e) was affirmed.
The respondent's counter-claim of Kshs. 4,892,482
The counter-claim was proved; the sum was agreed in the 12th February 1998 minutes and admitted by the appellant's director in evidence
The minutes of the meeting recorded an agreed outstanding balance of Kshs. 4,892,482/02 subject only to proof of delivery of two invoices, and the appellant's director testified the sum was still unpaid. The claim was pleaded and proved and the award was properly made.
Legal principles established
#- Special damages must first be specifically pleaded and then strictly proved
- On a first appeal the Court of Appeal must re-evaluate the evidence and reach its own conclusions, while bearing in mind it did not hear or observe the witnesses
- A breach of contract does not give rise to an award of general damages
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.The judgment of the High Court (Warsame, J) dismissing the appellant's suit and allowing the respondent's counter-claim of Kshs. 4,892,482 affirmed
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. 186 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision); the court exercised its duty on a first appeal to re-evaluate the evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalo Company Lmite`d v Smithkline & Beecham Consumer Health Care Ltd", Case Analysis (2015). Civil Appeal No. 103 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/48/eng@2015-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.