Wakilii

Masuba v Khayikhayi (HCT-04-CV-CS-05 of 1998)

High Court · [2005] UGHCCD 1 · 2005 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract
Decision
Plaintiff's claim for breach of contract succeeded; general damages and costs awarded; special damages claim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the defendant breached a contract for the sale of a tractor by failing to deliver it despite receiving part payment of shs. 1.9 million. The court rejected the defendant's claim that non-delivery was due to the plaintiff's failure to pay the balance, finding that the defendant failed to deliver even when the full balance was later tendered. The court awarded general damages of shs. 2 million but declined special damages for lack of proof. The penalty clause of 10% per day was deemed punitive and not enforced.

Outcome

Plaintiff's claim for breach of contract succeeded; general damages and costs awarded; special damages claim dismissed

Facts

On 21 December 1997, the defendant contracted to sell a Massey Ferguson tractor to the plaintiff for shs. 6 million. The plaintiff paid shs. 1.9 million as part payment and was to pay the balance upon taking possession. When the plaintiff went to inspect the tractor at the home of Charles Khaukha (who had custody of it), Khaukha refused to release it, stating the defendant had no authority to sell and that he wanted a share of the proceeds. The parties wrote an agreement (exhibit P3) providing that the tractor would be delivered on 23 December 1997 and that failure to deliver would attract a penalty of 10% per day of the amount paid. Despite the agreement and the plaintiff's subsequent tender of a bank draft for the balance of shs. 4.1 million, the defendant failed to deliver the tractor. The plaintiff reported the matter to police. The defendant eventually sold the tractor to someone else in Kenya and, after police intervention, refunded the shs. 1.9 million to the plaintiff.

Issues

  1. What were the terms of the contract between the parties?
  2. Whether the defendant was in breach of any of those terms?
  3. If so, what remedies are available to the plaintiff?

Orders

  • General damages of shs. 2 million awarded to the plaintiff.
  • Interest on the general damages at court rate from date of judgment until payment in full.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Contract Law — Breach of Contract — Failure to Deliver — Liability
A breach of contract occurs when one or both parties fail to fulfil the obligations imposed by the terms of the contract. Where a seller fails to deliver goods despite receiving part payment and despite the buyer tendering the balance of the purchase price, the seller is in breach of contract.
Contract Law — Remedies for Breach — Penalty Clauses — Enforceability
A contractual penalty clause that imposes a punitive rate (such as 10% per day on sums paid) will not be enforced by the court. The court will instead assess general damages based on the actual loss suffered by the innocent party.
Contract Law — Damages — General Damages — Assessment
Damages for breach of contract are compensatory and intended to place the innocent party in the position they would have been in had the contract been performed. Where a buyer suffers loss from a seller's failure to deliver, the court may award general damages to compensate for expenses incurred and loss of expectation.
Evidence — Special Damages — Proof — Strict Proof Required
Special damages must be strictly proved. While documentary evidence is not required in all cases, there must be some evidence to enable the court to make a reasonable assessment. In the absence of any evidence of special damages, the claim will be dismissed.
Civil Procedure — Pleadings — Fraud — Requirement to Plead Specifically
Fraud must be specifically pleaded and particulars of the alleged fraud must be stated on the face of the pleadings. The acts alleged to be fraudulent must be set out and it must be stated that these acts were done fraudulently. A party against whom fraud is alleged must be given sufficient notice to enable him to answer the allegation.
Evidence — Burden of Proof — Civil Cases — Balance of Probabilities
The burden of proof in civil cases lies upon the person who asserts the existence of a state of affairs or facts. The plaintiff's evidence must carry a reasonable degree of probability. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal, it is not.

Cases cited (9)

  • B.E.A. Timber Co. v Inder Singh Gill [1959] EA 465 (CA)
  • Fam International Ltd v Mohamed Hamid El-Fathith (SCCA No. 16 of 1993)
  • Nsubuga v Kavuma [1978] HCB 307
  • Sebuliba v Coop Bank [1982] HCB 129
  • Muller v Minister of Pensions [1947] 2 All ER 372
  • Nakawa Trading Co. Ltd v Coffee Marketing Board (HCCS No. 137 of 1991)
  • Patel v Madhvani International Ltd [1992-93] HCB 189
  • Kyambadde v Mpigi District Administration [1983] HCB
  • John Nagenda v Sbena Belgian Airlines [1992] KALR 13

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Masuba v Khayikhayi (HCT-04-CV-CS-05 of 1998) [2005] UGHCCD 1 (10 May 2005)
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.