Corby Limited v General (Civil Case 375 of 2009) [2023] KEHC 18100 (KLR) (Civ) (22 May 2023) (Judgment)

Key Facts

Issues

• Whether the Defendant breached the duty of care by failing to provide security. The court determined there was no breach as the Plaintiff did not prove the Defendant was aware of the likelihood of violence.
• Whether the Defendant is liable for Ksh 1.38 billion in special damages. The court found the amount exaggerated and speculative, with no proof of duty breach, and the Defendant not liable for third-party criminal acts.
• Who should pay the legal costs. The court ruled both parties bear their own costs as the Plaintiff failed to prove the Defendant's liability.
• Whether the Defendant (Attorney General) owed the Plaintiff a duty of care to provide security. The court found no explicit contractual obligation or agreement proving such a duty.
• Whether the Plaintiff suffered damage from the breach. The court noted the damage resulted from unresolved community disputes over pollution and unfulfilled promises, not the Defendant's breach.

Holdings

• The court dismissed the Plaintiff's case, concluding that they failed to prove their claim on a balance of probabilities. The Plaintiff was advised to pursue those responsible for the invasion and destruction of their property instead of the Defendant.
• The court determined that the Defendant (Attorney General) did not owe the Plaintiff (Corby Limited) a special duty of care, as there was no explicit contractual agreement or evidence of such a duty. The Plaintiff failed to prove that the government was obligated to provide security for their operations.
• The court ruled that the Defendant is not liable for the Plaintiff's claimed special damages of Ksh 1,385,476,780.00. The damages were deemed speculative and exaggerated, particularly the projected 5-year costs. The court suggested a potential award of Ksh 300,000,000 if proven, but the Plaintiff failed to meet the burden of proof.
• The court found no breach of duty by the Defendant, as the absence of a duty of care negated any potential breach. The Plaintiff could not establish that the police had prior knowledge of likely violence or agreed to provide security.

Remedies

• The court dismissed the plaintiff company's case as they failed to prove the defendant's liability for the damages incurred during the 2006 invasion of their site.
• The court ordered that each party bears its own costs of the suit since the plaintiff did not meet the burden of proof required in civil cases (balance of probabilities).

Legal Principles

• The court applied the civil standard of proof (balance of probabilities) and concluded that the Plaintiff did not meet this burden. The Plaintiff's claims were dismissed due to insufficient evidence to establish liability or the extent of damages.
• The court determined that the Defendant (Attorney General) did not owe the Plaintiff company a special duty of care, as there was no explicit contractual obligation or evidence that the government was aware of the need to provide security. The judgment emphasized that the Plaintiff failed to prove the Defendant was in breach of any duty of care.

Precedent Name

• James Omwoyo Meroka & 2 others v Attorney General & 3 others
• Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd

Cited Statute

Judge Name

Passage Text

• I find that the amount the plaintiff company is seeking as special damages is highly exaggerated and it includes Projected costs for 5 years of Kshs. 1,185,040,818.00 which is speculative and imaginary figure.
• In the circumstances, I find that the Defendant did not owe a special duty to the Plaintiff company.
• "It is clear that the State through police, would only be liable for the acts of third parties only if the Petitioners can bring themselves into the special category... and prove that the police had information on the likelihood of violence occurred."