Nyamogo & Nyamogo Advocates v Barclays Bank of Kenya [2015] KECA 744 (KLR)
The bottom line
#Kenya's Court of Appeal increased a lawyer's award over a wrongfully dishonoured cheque but cut the claim short because key losses were never specifically pleaded and proved.
What this practically means
#Executive summary
#Key legal issues
#Mode of claiming damages under section 57 of the Bills of Exchange Act
Damages under section 57 are deemed liquidated damages and must be specifically pleaded with particulars and specifically proved; absent such pleading, the claimant cannot rely on the provision on appeal.
The Court noted there was no specific pleading invoking section 57 in the plaint; the issue arose only from PW1's oral testimony. The pleading of damages in general terms left the quantum to the trial Judge's discretion. The Court therefore found no fault in the trial Judge's mode of approach in assessing damages, and declined to apply section 57.
Nominal versus substantial damages for wrongful dishonour of a cheque by a non-trading claimant
A firm of advocates is in business/trading, so its claim falls outside the nominal damages bracket, but any award must not be high because heavy losses should have been quantified and claimed as special damages.
Applying Gibbons and Shiraku, nominal damages alone apply where the claimant is not trading. The appellant, being a trading firm of advocates whose professional standing was affected, was entitled to more than nominal damages. However, alleged losses (loss of client, loss of business) were never quantified or proved as special damages, so the award had to remain moderate. The Court assessed Kshs. 500,000.00 in place of Kshs. 10,000.00.
Special damages must be specifically pleaded and strictly proved
Any loss beyond injury to reputation must be pleaded as special damage, calculated, claimed and strictly proved; otherwise it is not recoverable.
Relying on Shiraku v Commercial Bank of Africa and Hann v Singh, the Court held that the appellant's averments of loss of customer, credit and business were claims laid at large. The fact that Ogwayo gave some briefs to other advocates, though admitted in testimony, was insufficient to quantify actual loss. The losses should have been tabulated and claimed as special damages, which the appellant failed to do.
Interest on damages at large
Interest on damages assessed at large runs from the date of assessment, i.e. the date of judgment, being the earliest date the defendant's liability arises, and an unpleaded request for interest at commercial rates does not bind the court.
The appellant did not plead a specific measure of interest; the oral request at trial did not place the issue before the court as a triable matter binding the judge. Applying Salim & another v Kikaua and section 26 of the Civil Procedure Act, the Court affirmed the trial Judge's award of interest from the date of judgment and declined to interfere.
Appellate deference to a trial judge's discretionary assessment of damages
An appellate court is slow to interfere with a trial judge's assessment of damages unless the judge acted on wrong principles, took into account matters he ought not, or awarded damages so excessive or so low that no reasonable court would.
Relying on Mbogo v Shah and Butler v Butler, the Court reaffirmed the restraint principle governing interference with discretionary awards. It found no misdirection in the trial Judge's treatment of liability admitted by consent, his assumption that the cheque was eventually paid, or his discounting of libel and negligence claims, and interfered only by increasing the contract damages to reflect the appellant's trading status.
Mandate of a first appellate court
A first appellate court must re-appraise, re-assess and re-analyse the evidence and reach its own conclusions, while being slow to disturb findings of fact based on no evidence, misapprehension of evidence, or a wrong principle.
The Court restated its mandate on a first appeal, citing Sumaria & Another v Allied Industries Limited and Musera v Mwechelesi. It then re-evaluated the record, including testimony of PW1 and PW2, before reaching its determinations on each ground of appeal.
Legal principles established
#- Section 57 of the Bills of Exchange Act provides liquidated damages which must be specifically pleaded with particulars and specifically proved before a claimant may recover the value of the dishonoured bill.
- A non-trader is not entitled to substantial damages for wrongful dishonour of a cheque unless the damage suffered is alleged and proved as special damage.
- Interest on general damages runs from the date of assessment, being the date of judgment, when the defendant's liability first arises.
- An appellate court will not interfere with the exercise of a trial judge's discretion on the assessment of damages unless the judge misdirected himself or was clearly wrong, resulting in misjustice.
Court orders
#- 1.The award of Kshs. 1,000,000.00 for injurious falsehood is affirmed
- 2.The award of Kshs. 10,000.00 nominal damages for breach of contract is set aside and substituted with an award of Kshs. 500,000.00 as damages for breach of contract
- 3.The appellant will have half the costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2410 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (first appellate court re-appraisal of evidence)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ann Gichimo v Kenya Ordinance Factories Corporation [2018] KEELRC 651 (KLR)[2018] KEELRC 651 (KLR)26 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Nyamogo & Nyamogo Advocates v Barclays Bank of Kenya [2015] KECA 744 (KLR)", Case Analysis (2015). Civil Appeal No. 69 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/744/eng@2015-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.