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Court of AppealPartially AllowedCourt of Appeal Civil Appeal (Nairobi)· [2016] KECA 457 (KLR)

Caltex Oil (Kenya) Ltd v Rono Ltd (Civil Appeal 97 of 2008) [2016] KECA 457 (KLR)

Court of Appeal of Kenya
17 June 2016
Martha Karambu KoomeM. KoomeMohamed Abdulahi WarsameM. WarsameFSF. Sichale
2,139 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed courts cannot award damages nobody pleaded in their case documents, even after winning specific performance.

What this practically means

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Executive summary

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The Court of Appeal (Koome, Warsame and Sichale, JJA) allowed an appeal by the appellant (vendor) against the High Court's dismissal of its preliminary objection. The dispute arose from a 1991 sale agreement over LR No 209/4599; when the appellant attempted to cancel the transaction, the respondent sued for injunction, specific performance, or alternatively damages for breach of contract. Judgment on admission was entered by Ole Keiwua J under Order XII rule 6, and specific performance was executed. The appellant then objected, by preliminary objection before Waweru J, to the proposed assessment of damages on the grounds that damages were not specifically pleaded and no general damages lie for breach of contract. Waweru J dismissed the objection, prompting this appeal. The Court held that pleadings frame the relief a court may grant: a party seeking a prayer must plead and prove it specifically. The damages claimed could not be special damages since none were pleaded or particularized, and general damages were unavailable because the respondent never asserted any loss in the plaint. With specific performance already granted and the property transferred, the alternative prayer for damages fell away; the Court held it had no inherent jurisdiction to award unpleaded damages, which 'cannot be plucked from the air.' The Court set aside Waweru J's order and substituted an order upholding the preliminary objection, with costs of that objection to the respondent. This binds lower courts to refuse unpleaded relief.

Key legal issues

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01

Jurisdiction to grant unpleaded relief

Holding

A court cannot grant an order not specifically pleaded; the prayer for damages was alternative only, and having granted specific performance there was no basis for damages.

Reasoning

Pleadings inform each party of the case to be met and frame the evidence. The plaint sought damages only 'further or alternatively' to specific performance, which was granted and the property transferred. Since no loss was pleaded, no damages—general or special—could be awarded; to do so would exceed the court's jurisdiction.

p. 1
02

Nature of the damages claimed - special vs general

Holding

The damages envisioned could not be special damages since none were pleaded or particularized; nor could general damages be awarded because no loss was asserted in the plaint.

Reasoning

Special damages must be pleaded and strictly proved per Hahn v Singh as adopted in Mohammed Ali v Sagoo Radiators. General damages are those presumed to flow naturally from the wrong, but the plaintiff must at least assert the damage suffered. The respondent never claimed to have suffered any damage, so there was no basis for either head.

p. 4
03

Definition and scope of a preliminary objection

Holding

The Court adopted the locus classicus definition from Mukisa Biscuits: a preliminary objection raises a pure point of law on assumed facts.

Reasoning

The Court restated Law JA's and Sir Charles Newbold P's formulations in Mukisa Biscuits as the governing definition: a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, and not requiring ascertainment of facts or exercise of discretion.

p. 3

Legal principles established

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  • A court has no jurisdiction to grant a prayer not specifically pleaded in the pleadings; parties are bound by their pleadings.
  • Special damages must be specifically pleaded and strictly proved.
  • Damages cannot be awarded where no claim for them was made in the pleadings; damages must be pleaded so the other party can respond.

Court orders

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  1. 1.Set aside the order of Waweru J dismissing the appellant's preliminary objection
  2. 2.Substituted therefor an order upholding the appellant's preliminary objection
  3. 3.Costs of the preliminary objection to the respondent

Authorities

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Legislation

  • Civil Procedure Rules (retired)Order XII rule 6

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors
    (1969) EA 696
  • Mohammed Ali & another v Sagoo Radiators Limited
    [2013] eKLR (Civil Appeal No. 231 of 2005)
  • Hahn vs Singh
    [1985] KLR 716
  • Openda v Ahn
    [1984] KLR 208
  • Ritho v Kariithi and another
    [1988] KLR 237
  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate jurisdiction under the Constitution and the Civil Procedure Act (not expressly provisioned in the judgment)

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, "Caltex Oil (Kenya) Ltd v Rono Ltd (Civil Appeal 97 of 2008) [2016] KECA 457 (KLR)", Case Analysis (2016). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/457/eng@2016-06-17

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