Lesiolo Limited v Kenya Seed Company Limited (Civil Appeal 183 of 2017) [2022] KECA 40 (KLR)

The Court applied the settled rule that special damages must be both pleaded and strictly proved. Although the appellant proved purchase of 4,000 bags and that 921 were taken back and replaced with bad seed, it adduced no evidence by a qualified person on the exact acreage lost, no documentation of replanting expenditure, and no surveyor's report. General assertions of loss were insufficient; the claim had to be proved to a cent.

The Court endorsed the principle that general damages are not ordinarily awarded for breach of contract except where the defaulting party's conduct is oppressive, high-handed, outrageous, insolent or vindictive. The case involved the sale of defective wheat seed; the appellant led no evidence to bring the respondent's conduct within those exceptions, so the claim failed.

As a first appeal from the High Court's original jurisdiction, the Court was obliged under Rule 29 to reconsider, evaluate and draw its own conclusions from the evidence, bearing in mind it had neither seen nor heard the witnesses. On re-appraisal, the Court found the Judge's findings on the sale, the defective seed and the proved loss of 921 bags were supported by unrebutted evidence, including KEPHIS certificates showing germination far below the 85% standard.

The respondent argued that the claim was not proved and the award was unsupported. The Court found there was evidence of a bank transfer of Ksh.11,200,000, a proved unit price of Ksh.2,800, the respondent's failure to produce certification certificates, and KEPHIS results showing germination of 25% and 0% against a required 85% minimum, which the respondent had not rebutted. The award on the 921 bags therefore stood.