Breach of Contract Litigation in Kenya: Remedies, Damages and Specific Performance

Breach of Contract Litigation Kenya Remedies questions usually arrive with an assumption that the Law of Contract Act will have an answer. It rarely does, in the way clients expect. The Act is a short, four-section statute dealing almost entirely with formation formalities, such as which contracts must be in writing. The substantive law of damages, specific performance and mitigation that actually decides most commercial disputes is English common law, imported by section 2 of the Act and developed by Kenyan courts case by case ever since.

The Default Remedy Is Damages, Not Performance

Kenyan courts start from the position that a claimant is entitled to be put, so far as money can do it, in the position they would have been in had the contract been performed. That is expectation damages, and it is the default remedy in almost every commercial breach claim. Specific performance, an order compelling the defaulting party to actually complete the contract, is the exception, available only where damages would be an inadequate remedy, most commonly in transactions involving land or genuinely unique subject matter.

Remoteness: Not Every Loss Is Recoverable

The Court of Appeal addressed this directly in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312, a breach of loan contract dispute. Drawing on the established contemplation principle, the court held that only losses within the reasonable contemplation of both parties at the time of contracting are recoverable; anything beyond that is either irrecoverable or must be proven as a specific, particularised special loss rather than assumed as general damages. This matters practically because commercial claimants often plead sweeping consequential losses without grounding them in what the parties actually contemplated when the contract was made, and courts will strip out anything too remote or too speculative.

When Specific Performance Is Actually Granted

Land sale agreements are where Kenyan courts most often grant specific performance, precisely because land is treated as unique and damages are rarely seen as an adequate substitute. In Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573, the Court of Appeal upheld an order of specific performance where the seller had already received full payment and handed over possession, holding that the seller had become a constructive trustee for the buyer and that it would be unjust to allow him to retain the unsold portion. The case illustrates the equitable reasoning underlying specific performance: courts are reluctant to let a party who has already received the substantial benefit of a bargain walk away from completing their side of it.

The Duty to Mitigate

A claimant cannot simply let losses accumulate and then claim the full amount. In Leah Distributors Limited v Leah Africa Limited [2023] KEHC 125, arising from the termination of a truck lease agreement without the required notice, the High Court confirmed that a claimant has a duty to take all reasonable steps to mitigate loss, and cannot recover any sum attributable to their own neglect in failing to do so, citing the established line of authority in African Highland Produce Limited v John Kisorio. Importantly, the burden of proving a failure to mitigate rests on the defendant, not the claimant; a defendant who wants to reduce an award on this ground needs to actually prove what the claimant should have done differently, not simply assert it.

Special Damages Still Need Proof

A recurring weakness in Kenyan commercial claims is treating a quantified loss as self-proving simply because it is pleaded with a specific figure. Special damages, unlike general damages, must be strictly pleaded and strictly proved with supporting documentation, whether invoices, correspondence showing the loss actually materialised, or expert evidence on quantum where the loss involves a valuation judgment. A claimant who pleads a precise number without the underlying paper trail to support it risks having that figure struck down even where the court accepts a breach occurred and some loss followed from it.

What This Means for Drafting and for Litigation

Because the Law of Contract Act itself says almost nothing about remedies, a well-drafted commercial agreement should specify its own remedy framework wherever possible: liquidated damages clauses, defined termination rights, and clear provisions on what happens on breach reduce the uncertainty that comes from relying on general common law principles applied case by case. Where a dispute has already arisen, the practical questions are the same ones the courts ask: what was actually contemplated at the time of contracting, whether the loss claimed is genuinely a consequence of the breach or something more remote, and what steps the claimant took, or failed to take, to limit the damage once the breach occurred.