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Court of AppealPartially AllowedCivil Appeal No. 101 of 2016· [2017] KECA 148 (KLR)

Jubilee Insurance Company of Kenya Ltd v Zahir Habib Jiwan & another [2017] KECA 148 (KLR)

Court of Appeal of Kenya
2 November 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
3,087 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a Kshs.7.6 million theft-loss award despite no receipts, but struck out Kshs.500,000 in general damages for a breach of contract claim.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Koome JJ.A) heard a first appeal by Jubilee Insurance Company against a High Court judgment (Kasango, J., dated 21st August 2015 in H.C.C.C No. 54 of 2013) awarding the respondents special damages of Kshs.7,639,000 and general damages of Kshs.500,000 for jewelry and cash stolen from a safe deposit locker leased from the appellant. The appellant contended that special damages were not strictly proved because the respondents produced no receipts, relying on internet printouts and a post-theft valuation report, and that general damages were unavailable in a purely contractual claim. The Court reiterated its first-appeal duty to re-evaluate the evidence, and restated the settled principle that special damages must be pleaded and strictly proved, while noting the degree of particularity required depends on the circumstances. It upheld the trial court's findings, deferring to the trial judge's advantage in assessing the credibility of the 2nd respondent, who gave detailed evidence supported by warranties and photographs, and noting the appellant adduced no evidence to controvert her. Following Antique Auctions and Kampala City Council v Nakaye, the Court held that where documentary evidence such as receipts is unavailable, other cogent evidence may prove ownership and value. The appeal succeeded only in part: the special damages award of Kshs.7,639,000 was upheld, but the award of general damages of Kshs.500,000 was set aside as a misdirection because the claim was based purely on breach of contract. Given the partial success, the Court made no orders as to the costs of the appeal.

Key legal issues

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01

Proof of special damages without receipts

Holding

The respondents proved the stolen items and their value on a balance of probability; absence of purchase receipts did not defeat the claim where items were gifts, inherited or bought decades earlier, and the appellant called no contradicting evidence

Reasoning

The trial judge had the advantage of seeing and hearing the 2nd respondent, who gave detailed, credible evidence of the items and produced warranties and photographs. Following Jivanji and Antique Auctions, the Court held that while documents are the best evidence, other cogent evidence suffices. The appellant's fiduciary duty as lessor reinforced liability for loss occurring in its custody.

p. 5
02

Entitlement to general damages in a contractual claim

Holding

The award of general damages of Kshs.500,000 was a misdirection because the claim was founded purely on breach of contract

Reasoning

Relying on Habib Zurich Finance and Dharanshi, the Court reaffirmed that damages for breach of contract are quantifiable and not at large, hence general damages are unavailable. The general damages award was accordingly set aside.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh while making allowance for not having seen or heard the witnesses
  • Special damages must both be pleaded and strictly proved, though the degree of particularity depends on the circumstances of each case
  • Where documentary evidence such as receipts is unavailable, other cogent evidence may prove ownership and value of lost items
  • General damages cannot be awarded for breach of contract

Court orders

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  1. 1.Appeal allowed in part only to the extent that the award of general damages of Kshs.500,000 is set aside
  2. 2.Award of special damages of Kshs.7,639,000 upheld
  3. 3.No orders as to costs of the appeal

Authorities

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Cases cited (15)

  • Kenya Ports Authority vs. Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Kenya Bus Services & Another vs. Fredrick Mayende
    [1991] 232
  • Bonham Carter vs. Hyde Park Hotel Ltd.
    [1984] 64 T.R.L 177
  • Jacob Ayiga Maruja & Another vs. Simeon Obayo
    [2005] eKLR
  • East Africa Navigators Ltd. vs. Mohanlal Mathuradas & Bros.
    [1968] EA 541
  • Jivanji vs. Sanyo Electrical Company Limited
    [2003] 1 EA 98
  • Kampala City Council vs. Nakaye
    [1972] EA 446
  • Ouma vs. Nairobi City Council
    [1976] KLR 297
  • Eldama Ravine Distributors Limited and another vs. Chebon
    Civil Appeal Number 22 of 1991 (UR)
  • Ratcliffe vs. Evans
    [1892] QB 524
  • Hahn vs Singh
    [1985] KLR 716
  • Antique Auctions Ltd vs. Pan African Auctions Ltd
    [1993] eKLR
  • Habib Zurich Finance (K) Limited vs. Muthoga & Another
    [2002] 1 EA 81
  • Dharanshi vs. Karsam
    (1974) EA 4
  • Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited vs. Janevams Limited
    [2015] eKLR
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 54 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment identifies itself as 'a first appeal against the decision of the High Court')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Jubilee Insurance Company of Kenya Ltd v Zahir Habib Jiwan & another [2017] KECA 148 (KLR)", Case Analysis (2017). Civil Appeal No. 101 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/148/eng@2017-11-02

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