Sundowner Lodge Limited v Kenya Tourist Development Corporation (Civil Application Sup 19 of 2018) [2023] KECA 1131 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let Sundowner Lodge take its contract damages dispute to the Supreme Court, confirming that general damages are rarely recoverable for breach of contract.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has demonstrated that its case involves a matter of general public importance to merit certification by this Court to appeal to the Supreme Court under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the intended appeal raises a matter of general public importance warranting certification under Article 163(4)(b)
The application fails. The issue of recoverability of general damages for breach of contract is settled: it is not recoverable as a general rule except in justified exceptional circumstances, and no confusion or conflicting precedent exists. The applicant did not discharge the burden on it.
The Court reviewed the impugned judgment and found it appreciated the general rule against general damages in contract and set aside the Kshs.30 million award principally because the trial judge awarded it with absolutely no foundation, no authority on quantum, and no comparable. The issue of duplication was never urged in the courts below, and the Supreme Court's certification jurisdiction is not for rectifying errors or determining contested facts. Court of Appeal decisions should be aligned by that Court itself.
Whether the impugned judgment created confusion and conflicting precedent on damages for breach of contract
No. The Court held that its prior judgment correctly restated the settled general rule and that the applicant had failed to plead and prove any exception.
The Court re-read its own 2018 judgment and concluded it had differed with the trial judge's wide-discretion approach while appreciating the general rule. Even if general damages were recoverable, the award was whimsical, 'literally plucked out of the air', with no authority cited on quantum, no discussion, no justification and no comparable. The claimed exceptions (oppressive, insolent, highhanded, outrageous or vindictive conduct) were never pleaded or established, nor urged below.
Legal principles established
#- Certification under Article 163(4)(b) is reserved for exceptional cases raising cardinal issues of law or jurisprudential moment; the Supreme Court is not an additional tier for all appeals
- As a general rule, general damages are not recoverable in cases of breach of contract, save in exceptional circumstances which must be justified
- The burden of demonstrating a matter of general public importance rests on the applicant seeking certification
Court orders
#- 1.The applicant's notice of motion dated 12th October, 2018 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 481 of 2003
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya
Relief refused
#Leave to appeal to the Supreme Court against the judgment of the Court of Appeal dated 28th September, 2018
The applicant failed to demonstrate a matter of general public importance; the issue of damages for breach of contract is well settled and certification is not for rectifying errors
Certification that the impugned decision involves a matter of general public importance
No cardinal issue of law or issue of great jurisprudential moment is at stake; there is no confusion in legal practice
Costs
The application is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the applicant's notice of motion dated 12th October, 2018 is hereby dismissed with costs to the respondent.
as a general rule, general damages are not awardable for breach of contract except in exceptional circumstances, which have to be justified. This is an issue that is well settled and beyond contestation.
The jurisdiction of the Supreme Court under Article 163(4) (b) is not a jurisdiction to be invoked merely for the purpose of rectifying errors.
only exceptional cases, which raise cardinal issues of law or of jurisprudential moment will deserve the attention of the Supreme Court.
the learned Judge whimsically and capriciously imposed that figure, literally plucking it out of the air. That cannot be a proper way to arrive at damages because it is a judicial exercise not an oracular pronouncement.
The onus to satisfy the court that such matter or matters of general public importance exist rests on the applicant.
Issues in the judgment
#The notice of appeal is dated 30th April, 2019 but the application (dated 12th October, 2018) seeks leave to appeal against the judgment of 28th September, 2018, with leave stated to have been granted on 29th April, 2019; the chronology is internally inconsistent as set out 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.
- Agostino v Kituyi (Civil Appeal E012 of 2025) [2025] KEELC 7177 (KLR)[2025] KEELC 7177 (KLR)25 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Sundowner Lodge Limited v Kenya Tourist Development Corporation (Civil Application Sup 19 of 2018) [2023] KECA 1131 (KLR)", Case Analysis (2023). Application dated 12th October, 2018 (arising from Civil Appeal No. 120 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1131/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.