Wakilii

Shell (U) Ltd v Mukiibi (Civil Appeal No.69 of 2004)

Court of Appeal · [2008] UGCA 35 · 2008 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment awarding damages for loss of earnings
Decision
Appeal allowed in part; High Court award reduced from Shs.130,000,000 to Shs.65,000,000 general damages

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Holding

The respondent's diesel vehicle stalled after being fuelled with water-contaminated diesel at the appellant's station. The Court held the respondent had a duty to mitigate his loss, which he partly failed to do by refusing the appellant's offer to repair the engine, though he was also partly prevented from removing the vehicle. Loss of earnings claimed as special damages was not specifically proved, so an award of general damages was permissible. Finding the High Court's award of Shs.130,000,000 too high, the Court allowed the appeal in part, set aside the orders and substituted an award of Shs.65,000,000 general damages.

Facts

The respondent owned a 26-seater coaster minibus operated in the taxi business. On 11 September 2000 the vehicle, while hired to carry mourners, was refuelled with diesel at the appellant's Shell Malindi station at Natete. The vehicle developed problems and stalled, and was towed back to the station. Samples taken from the underground tank and the vehicle established that the diesel was contaminated with water. The appellant subsequently made a without-prejudice offer to repair or replace the engine and meet incidental costs, but did not offer to compensate for loss of income. The respondent rejected the offer, demanding payment for one month's lost income as a precondition, and filed suit. There was unchallenged evidence that the appellant's agents prevented the respondent from removing the vehicle for repair. The High Court found the appellant liable and awarded Shs.130,000,000 for loss of earnings plus replacement of the engine, interest and costs. The appellant appealed.

Issues

  1. Whether the respondent had an obligation to mitigate his loss.
  2. Whether the Court of Appeal can revisit the award of damages made by the High Court.

Orders

  • Appeal allowed in part.
  • Judgment and orders of the High Court set aside.
  • Judgment entered for the respondent for Shs.65,000,000 general damages.
  • Shs.20,000 refund of fuel price.
  • Interest on the above at 10% from the date of the High Court judgment until payment in full.
  • Costs in the lower court awarded to the respondent.
  • Each party to bear its own costs of the appeal.
  • The respondent to tow away his vehicle within 7 days from the date hereof.

Key headnotes

Tort Law — Mitigation of Damage — Duty to Take Reasonable Steps
A plaintiff must take all reasonable steps to mitigate the loss flowing from the defendant's wrong and cannot recover damages for avoidable loss; where a plaintiff unreasonably refuses an offer that would reduce the loss, the recoverable damages are reduced accordingly.
Tort Law — Mitigation — Apportionment Where Both Parties at Fault
Where the plaintiff fails to mitigate but is also partly prevented from doing so by the defendant, the loss attributable to non-mitigation may be apportioned between the parties, reducing the plaintiff's recovery proportionately.
Damages — Special Damages — Requirement of Specific Pleading and Proof
Special damages must be specifically pleaded and strictly proved; a mere statement of particulars without evidence is insufficient to sustain an award of special damages.
Damages — Failure to Prove Special Damages — Award of General Damages Permissible
Where a plaintiff with a genuine claim fails to prove special damages, the court may nonetheless award general damages in place of the unproven special damages.
Appeals — Interference with Award of Damages
An appellate court will not interfere with a trial court's award of damages unless the trial court acted on a wrong principle of law or made an entirely erroneous estimate of the damage, or the award is manifestly too high or too low.

Cases cited (10)

  • Standard Chartered Bank v Emag AG (Civil Appeal No. 3 of 2003)
  • Spencon Services Ltd v Tom Ogwal (Civil Appeal No. 41 of 2004)
  • Gaku Reagan and Others v Uganda Securico Ltd (Civil Appeal No. 6 of 2003)
  • Kensrow Industries Ltd v CC Chandran (Civil Appeal No. 1 of 2007)
  • Shamji v Bhatt (1965) EA 789
  • Kibimba Rice Co Ltd v Umar Salim (Civil Appeal No. 7 of 1988)
  • Benedicto Musisi v Attorney General (HCCS No. 62 of 1989)
  • Borham-carter VS Hyde Park Hotel Ltd [1984] 5 TLR 177
  • Uganda Commercial Bank v Matiya Wasswa (Civil Appeal No. 6 of 1998)
  • CA Express Trans Co v BAT Tanzania (1968) EA 443
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.