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Court of AppealDismissedCivil Appeal E001 of 2021· [2022] KECA 1300 (KLR)

Compact Freight Systems Limited v Multiserve Oasis Company Limited & another

Court of Appeal
2 December 2022
6,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a freight company must pay over USD 214,000 for lost goods, because it never proved its fraud claims.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (SG Kairu, P Nyamweya and JW Lessit, JJA) dismissed an appeal by Compact Freight Systems Limited against a High Court judgment (PJO Otieno, J, 28 February 2020) awarding Multiserve Oasis Company Limited USD 214,803 for 153 bales of imported garments lost from a container, plus USD 4,300 accommodation costs, Kshs 92,560 air ticket costs, interest and costs. The appellant argued that liability was not established, that KPA bore primary responsibility as principal, that the claim was fraudulent, and that the special damages were not strictly proved. The Court, exercising its first-appeal mandate to re-evaluate the evidence, held that the container was discharged at the port and loaded onto a truck driven by a driver authorized by the appellant and destined for its premises, but diverted; the loss therefore occurred in the appellant's custody. The fraud allegation failed because fraud was neither pleaded nor proved, and allegations of fraud must be specifically pleaded and distinctly proved. The Court found the trial Judge had expressly determined the basis of liability, holding the appellant an independent contractor rather than an agent of KPA under the licence agreement, and declined to entertain the agency argument as it had no basis in the memorandum of appeal. On quantum, although the trial Judge gave no reasons for the figure, the Court found the USD 214,803 award represented the proportionate invoice value of the 153 lost bales and met the strict-proof standard for special damages. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the appellant was liable for the loss of the consignment

Holding

Yes. The container was discharged at the port, loaded onto a truck driven by a driver authorized by the appellant and destined for the appellant's premises, but diverted; the loss occurred while in the appellant's custody.

Reasoning

The Court re-evaluated the evidence as on a first appeal. DW1's unchallenged witness statement confirmed the container was designated for release to the appellant and exited the port bound for its premises. The appellant's fraud allegation failed because fraud was neither pleaded nor proved, and the burden lay on the appellant.

p. 8
02

Whether the trial Judge determined the basis of the appellant's liability (direct or qua indemnification of KPA)

Holding

Yes. The Judge expressly addressed the matter, holding the appellant liable in custody and control, and that it was an independent contractor, not an agent of KPA.

Reasoning

Ground 8 of the memorandum complained the Judge failed to determine the basis of liability. The Court found the Judge expressly addressed this in paragraphs 40 to 46 of the judgment, concluding on clauses 7 and 10 of the licence agreement. There being no challenge to the independent-contractor holding, the agency argument was not properly before the Court.

p. 9
03

Whether the award of USD 214,803 as special damages was strictly proved

Holding

Yes. Based on commercial invoice No. 5874, the 212 bales were valued at USD 297,790.98; the award represented the proportionate value of the 153 bales lost.

Reasoning

Although the trial Judge did not explain how he arrived at the figure, the appellate Court found it evident from the commercial invoice that the award was the proportionate value of the 153 lost bales, the 59 recovered bales being deducted. The other awards (hotel, air ticket) were not challenged on appeal.

p. 10
04

Whether the appellant, as agent of a disclosed principal, could not be sued

Holding

The contention was not properly taken, as it had no basis in the memorandum of appeal; in any event the appellant was not sued as an agent and was found to be an independent contractor.

Reasoning

The Court acknowledged the common-law principle that where the principal is disclosed the agent is not to be sued, but distinguished the cited authority because there was no plea that the appellant was joined as an agent of KPA, and the 1st respondent pursued the appellant and KPA jointly and severally.

p. 9

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved; they may not be inferred from the act complained of.
  • Allegations of fraud must be specifically pleaded, distinctly alleged and distinctly proved, and cannot be inferred from the facts.
  • A party may not, without leave, argue on appeal a ground not specified in the memorandum of appeal or notice of cross-appeal.
  • In civil cases the standard of proof is on a balance of probability - the court makes a finding based on which party's version is more believable.

Court orders

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  1. 1.The appeal fails and is dismissed with costs to the respondents

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Court of Appeal Rules, 2022Rule 107

Cases cited (24)

  • Standard Chartered Bank Kenya Limited v Pakistan National Shipping Corporation
    [2002] UKHL 43

    Cited by appellant on agency - barring fraud, an agent is not liable for acts of the principal

  • Charles C Sande v Kenya Co-operative Creameries Limited
    Civil Appeal No 154 of 1992

    Special damages must be pleaded and strictly proved

  • Mohamed Ali & others v Sagoo Radiators Limited
    [2013] eKLR

    Special damages must be strictly proved

  • Hahn v Singh
    [1985] KLR 716

    Special damages must be specifically claimed and strictly proved; degree of certainty depends on circumstances

  • Flannery v Halifax Estate Agencies Ltd
    (2000) 1 WLR 337

    Cited by appellant - failure to give reasons for a figure vitiates a judgment

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR

    Cited by 1st respondent - fraud must be specifically pleaded with particulars on the face of the pleadings

  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR

    Cited by 1st respondent on pleading and proof of fraud

  • Carol Construction Engineers Limited & another v National Bank of Kenya
    [2020] eKLR

    Cited by KPA - prerequisites for the doctrine of estoppel

  • First Assurance Company Limited v Seascapes Limited
    [2008] eKLR

    Cited by KPA - prerequisites for the doctrine of estoppel

  • Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR

    Cited by KPA - parties are bound by their pleadings

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR

    Fraud must be pleaded and strictly proved

  • Selle v Associated Motor Boat Company Ltd
    [1968] EA 123

    Duty of first appellate court to re-evaluate evidence and draw its own conclusions

  • Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR

    Primary role of first appellate court to re-evaluate, re-assess and re-analyse the record

  • James Muniu Mucheru v National Bank of Kenya Ltd
    CA Civil Appeal No 365 of 2017 [2019] eKLR

    Standard of proof in civil cases is balance of probability

  • Miller v Minister of Pensions
    [1947] All ER 372

    Degree of proof on balance of probability - a win however narrow; a draw is not enough

  • Ndolo v Ndolo
    (2008) 1 KLR (G & F) 742

    Fraud must be strictly proved to a standard higher than balance of probabilities

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and distinctly proved, not inferred from facts

  • Securicor (Kenya) Limited v EA Drapers Ltd and another
    [1987] KLR

    Appeal confined to grounds in memorandum of appeal

  • Kenya Revenue Authority v Mohammed Saleh & Company Advocates
    [2019] eKLR

    No party may argue unpleaded grounds without leave

  • Kibic Star Electro Limited & 2 others v Southern Credit Banking Group
    Civil Appeal No 305 of 2015 [2022] KECA 71 (KLR)

    Appeal confined to grounds specified in memorandum of appeal

  • Victor Mabachi & another v Nurtun Bates Limited
    [2013] eKLR

    Where principal is disclosed, the agent is not to be sued

  • Anthony Francis Warehim t/a Wareham & 2 others v Kenya Post Office Savings Bank
    Civil Application Nos NAI 5 & 48 of 2002

    Agents of a disclosed principal should not be sued; claim against agent should be dismissed

  • Daniel Gatihi Gachomo v Kenya Union of Teachers Nyeri Branch
    [2013] eKLR

    Special damages must be specifically pleaded and strictly proved

  • Capital Fish Limited v Kenya Power and Lighting Company Limited
    [2016] eKLR

    Special damages must be specifically pleaded and strictly proved

On appeal from
High Court of Kenya at Mombasa (Commercial Division)
High Court Civil Suit No. 252 of 2010
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's mandate to re-evaluate the evidence and conclusions of the trial court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Compact Freight Systems Limited v Multiserve Oasis Company Limited & another", Case Analysis (2022). Civil Appeal E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1300/eng@2022-12-02

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