P.N. Mashru Transporters Limited v Rayshian Apparels Limited [2016] KECA 558 (KLR)
The bottom line
#Kenya's Court of Appeal held a transport company liable for stolen goods because its 'owner's risk' clause was only shown to the customer after delivery, not before.
What this practically means
#Executive summary
#Key legal issues
#Whether the exemption clause protected the appellant from liability
The exemption clause was unenforceable because the terms were contained in a delivery note handed to the customer only after goods had been delivered, and were never brought to the respondent's attention before delivery.
The appellant's own witness confirmed that the delivery note containing the conditions was prepared and availed to the customer upon delivery of goods, after ascertaining safe delivery. Following Joginder Auto Service, an exclusion clause fails where there is no evidence it was brought to the aggrieved party's attention. The Court agreed with the trial judge that the clause could not reduce the appellant's liability.
Liability of a common carrier for goods lost in transit
A common carrier's liability begins on acceptance of goods for carriage and ends only on safe delivery; the carrier is chargeable even for theft unless the exemption clause applies. The appellant, whose driver and loader disappeared after the theft, was vicariously liable.
Relying on Halsbury's Laws and Coggs v Benard, the Court reiterated that a common carrier assumes a duty to carry and deliver safely. The driver and loader disappeared after the theft, raising a rebuttable presumption that they were the thieves or accessories, for which the employer was vicariously liable. Securicor v Drapers confirms the master's liability for a careless servant.
Proof of special damages
While the cost of trims, customs duty and VAT were proved by the invoice, the Manufacture Under Bond Import Entry and the Police Abstract, the claims for expenses and loss of profits were not proved and that part of the award was set aside.
Counsel for the respondent conceded the expenses and loss of profits were not proved. The Court restated the Coast Bus Services principle that special damages must be pleaded with particularity and strictly proved. No evidence was placed before the trial judge to prove these items, so that part of the appellant's complaint merited.
Legal principles established
#- An appellate court will not interfere with a finding of fact by the trial court unless it was based on no evidence, on a misapprehension of the evidence, or on wrong principles.
- An exclusion clause cannot be relied on where there is no evidence that it was brought to the attention of the aggrieved party before or at the time of contract.
- Special damages, once pleaded, must be specifically proved.
- A principal who entrusts a duty to safeguard another's goods to a servant or agent is answerable for the manner in which that servant or agent carries out that duty.
Court orders
#- 1.Appeal succeeds in part
- 2.Set aside that part of the High Court judgment awarding the respondent expenses and loss of profits
- 3.Judgment for the respondent for cost of trims at US$58,888.40 and customs duty and VAT in lost items at US$34,921.50 affirmed
- 4.Vary orders on costs in the High Court and award costs to the respondent only on the part of the claim affirmed in the judgment
- 5.Each party to meet their own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 2408 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act (appellate jurisdiction over the High Court); no specific article is cited in the judgment.
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.
- Bid Road Enterprises v DHL Global Forwarding (K) Ltd[2017] KEHC 9918 (KLR)12 Apr 2017applied
Cite this brief
#Cite this brief
Caselaw, "P.N. Mashru Transporters Limited v Rayshian Apparels Limited [2016] KECA 558 (KLR)", Case Analysis (2016). Civil Appeal No. 256 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/558/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.