HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT RONTON

CASE NO: Civil Appeal No. 2025-08018 HC/CVA/LI

BETWEEN

ABITEKA KIRARENTI							Appellant

AND

TONGABURE AROBATI						Respondent
(in respect of the Margret Tati Enterprises)

Ms. Taraia Tata for the Appellant
Ms. Elsie Karakaua for the Respondent 

JUDGMENT

I. Introduction
1.	This appeal arises under section 66 of the Magistrates’ Court Ordinance against the judgment of the Single Magistrate at Kiritimati delivered on 17 December 2024 in Civil Case No. XCIV 63/24.  The Single Magistrate ordered the Appellant to pay damages of $7,315 within three months for alleged loss of rental income following damage to a vehicle rented from the Respondent.
2.	The Appellant challenges the judgment on four grounds: (1) failure to apply the duty to mitigate loss, (2) excessive damages, (3) failure to consider financial hardship, and (4) failure to determine whether the rental relationship had ceased upon transfer of ownership of the vehicle.
II. Facts
o	The Appellant rented a Nissan Note (“the vehicle”) from the Respondent.
o	The rear windscreen was damaged while in the Appellant’s possession.
o	The Appellant offered to repair the damage, but the Respondent refused and insisted that the Appellant take the vehicle.
o	The Appellant later sold the vehicle for $5,000 and handed the proceeds to the Respondent.
o	The Respondent accepted the $5,000 without objection, but subsequently filed a claim for rental loss.
o	The Single Magistrate awarded $7,315 in damages, in addition to the $5,000 already received.
o	The Appellant, unemployed and without income, contended that the award is excessive and disproportionate.
III. Issues
3.	This appeal raises four central issues for determination:
a)	Duty to Mitigate Loss – Whether the Single Magistrate erred in law by failing to apply the principle that a claimant must take reasonable steps to minimize loss.
b)	Excessive Damages – Whether the award of $7,315 was disproportionate, unsupported by proper scrutiny of evidence, and resulted in double recovery.
c)	Financial Circumstances – Whether the Single Magistrate failed to consider the Appellant’s financial hardship, rendering the order procedurally unfair and practically unenforceable.
d)	Rental Obligations vs. Sale – Whether the Respondent’s acceptance of $5,000 from the sale of the vehicle constituted a concluded sale, thereby extinguishing ongoing rental obligations and precluding further claims for rental loss.
IV. Deliberation and Consideration
Issue 1: Duty to Mitigate Loss
4.	Counsel for the Appellant argued that the Respondent failed to discharge the duty to mitigate loss.  The Appellant had offered to repair the damaged rear windscreen, but the Respondent refused and instead insisted that the Appellant take the vehicle.  By refusing repair and declining repossession, the Respondent allowed the loss to continue.  Reliance was placed on Philp v Osungade 2024 ONSC 3064, which confirmed that a claimant cannot recover damages that arise from their own refusal to minimize harm.
5.	The Respondent contended that mitigation was never raised before the Single Magistrate and therefore cannot be entertained on appeal.  Counsel relied on Bonbwati v Kiritimati Housing Corporation [2024] KIHC 3, where the High Court refused to consider new issues not raised below.
6.	The Court does not accept this submission.  The duty to mitigate is a principle of law that attaches to every claim for damages.  It is not dependent upon formal pleading, but arises whenever loss is alleged.  A court is therefore obliged to apply it, whether or not counsel expressly invokes it.  
7.	As the House of Lords held in British Westinghouse Electric v Underground Electric Railways Co of London Ltd [1912] AC 673 and reaffirmed in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, the duty to mitigate is inherent in the law of damages and cannot be avoided by silence in pleadings.
8.	Moreover, the factual record before the Single Magistrate contained repeated offers by the Appellant to repair the damage, and the Respondent’s refusal.  These facts directly engaged the principle of mitigation, since they showed the Respondent declining reasonable steps to minimize loss.  
9.	As Development Bank of Kiribati v Kabuta [2010] KIHC 69 and Kaiea v Attorney General [2005] KIHC 72 confirm, courts must ensure that claimants discharge this duty, which cannot be avoided by silence in pleadings.  To ignore mitigation in such circumstances risks double recovery and undermines fairness.
10.	Having established that the duty to mitigate arises from the factual record, it is necessary to clarify what mitigation entails.  It must not be conflated with the mere handing over of the car to the Appellant.  Proper mitigation requires reasonable and proportionate steps to reduce loss.  
11.	In Development Bank of Kiribati v Kabuta [2010] KIHC 69, Chief Justice Millhouse stressed that claimants must act promptly and reasonably to prevent losses from compounding.  Similarly, in Kaiea v Attorney General [2005] KIHC 72, the Court held that both plaintiff and defendant must take practical steps to minimize harm. 
12.	Building on that clarification, it is evident that mitigation is not satisfied by shifting the burden onto the other party without agreement on price or terms.  The Respondent’s actions were inconsistent with the duty to mitigate because they increased rather than reduced the loss.  
13.	By refusing repair and insisting on repossession, the Respondent failed to take reasonable steps that would have minimized harm, thereby compounding the damages instead of alleviating them.  
14.	Applying that framework, the Respondent’s refusal to permit repair was not a reasonable mitigation step.  Repairing the rear windscreen would have restored the vehicle to rental service at modest cost, thereby reducing the claimed loss.  
15.	Instead, the Respondent abandoned the asset, insisted the Appellant take it, and later accepted $5,000 from its sale.  This course of action compounded rather than minimized the loss, creating the risk of double recovery, compensation both for the capital value and for alleged rental income. 
16.	Although mitigation was not expressly pleaded before the Single Magistrate, the factual record, including the Appellant’s testimony and affidavit, shows repeated offers to repair the damage and the Respondent’s refusal.  These facts were before the Single Magistrate and should have been considered.
17.	The duty to mitigate is a principle of law, not merely a matter of fact. Accordingly, the Single Magistrate’s failure to apply the duty to mitigate constituted an error of law, and the Respondent’s refusal to permit repair directly contributed to the loss claimed.
Issue 2: Excessive Damages
18.	The Appellant submitted that the damages awarded were excessive, as the Respondent had already received $5,000 from the sale of the vehicle, nearly equal to its purchase price of $7,000.  Awarding a further $7,315 resulted in recovery exceeding the vehicle’s value.  Counsel relied on Attorney General v Kiboi [2021] KICA 3, which requires courts to scrutinize damages evidence carefully.
19.	The Respondent argued that the $5,000 represented the purchase price of the vehicle and was distinct from rental income.  The Respondent maintained that the Appellant had agreed to pay rental charges, and the Single Magistrate properly assessed the evidence and awarded damages for loss of rent.  The Respondent submitted that the award was based on standard rental charges and was not excessive.
20.	The High Court has consistently required careful scrutiny of damages to ensure that awards reflect actual proven loss and remain proportionate to the evidence.  In Tebetanga v Betio Town Council [2014] KIHC 43, Chief Justice Muria reduced damages to the level of substantiated loss, underscoring that claims must be supported by evidence and not inflated beyond their proper measure.  
21.	Similarly, in Kaiea v Attorney General [2005] KIHC 72, contingencies were deducted to avoid excess.  That doctrinal approach was reaffirmed in Attorney General v Kiboi [2021] KICA 3, where rigorous scrutiny of damages evidence was mandated.
22.	Applying that framework, the present case reveals a failure of scrutiny.  The Respondent had already recovered $5,000, substantially compensating the capital value of the vehicle, yet the Single Magistrate awarded an additional $7,315 for rental loss without adequate examination of whether such loss was proven or proportionate. 
23.	This resulted in double recovery and an award exceeding the vehicle’s actual value.  On the facts, the damages awarded were excessive, disproportionate to the proven loss, and legally unsustainable.  
24.	Proper application of the damages principle requires reduction of the award to reflect only substantiated loss, thereby avoiding duplication and ensuring fairness.
25.	Accordingly, the appeal succeeds on Ground 2.  
26.	Having found that the award is excessive and disproportionate, and bearing in mind the circumstances of this case, this Court feels that $6,500 is the more proportionate figure.  This figure is not arbitrary but arises from proportional assessment of the evidence.  The Respondent has already recovered $5,000 from the sale of the vehicle, substantially compensating its capital value.  A lower figure such as $5,000 would ignore the Respondent’s entitlement to some rental income, while a higher figure approaching $7,000 would exceed the vehicle’s value and result in double recovery.  The $6,500 figure therefore represents the proportionate balance between capital recovery and substantiated rental loss, ensuring that damages remain evidence‑based, fair, and consistent with established principles of scrutiny and proportionality.
Issue 3: Financial Circumstances
27.	The Appellant submitted that the Single Magistrate failed to consider her financial hardship, including unemployment and lack of income.  Ordering payment of $7,315 within three months was unreasonable and disproportionate.  Counsel relied on R v Churchill [1967] AC 224, which held that courts must consider a defendant’s means before imposing financial obligations.
28.	The Respondent argued that the Single Magistrate had already given the Appellant three months to pay, and in fact the evidence showed she had been given six months prior to trial to raise funds.  The Respondent submitted that the Single Magistrate properly assessed the evidence and that financial hardship was not a ground to avoid liability.
29.	This Court acknowledges that liability cannot be avoided solely on grounds of hardship.  
30.	The jurisprudence requires courts to consider ability to pay when imposing financial obligations.  Proportionality in enforcement requires that liability be matched to realistic capacity, lest justice become illusory.  
31.	In Kaiea v Attorney General [2005] KIHC 72, the Court acknowledged the plaintiff’s financial struggles in assessing damages, and in Tebetanga v Betio Town Council [2014] KIHC 43, it accepted evidence of financial loss and distress in calibrating awards.   
32.	Likewise, the principle in British Westinghouse Electric v Underground Electric Railways Co of London Ltd [1912] AC 673 and Banco de Portugal v Waterlow & Sons Ltd [1932] AC emphasize that the calculation of damages should be proportionate, evidence-based, and grounded in the circumstances and knowledge known at the time of the relevant act or loss.  
33.	This principle resonates with comparative jurisprudence, where English courts and Pacific jurisdictions alike emphasize that enforcement must be achievable, not merely theoretical.  
34.	The jurisprudence thus insists that liability be matched to realistic capacity, ensuring that justice remains both principled and practicable.
35.	Applying that framework, the present case reveals a failure of inquiry.  The Single Magistrate did not investigate the Appellant’s means, despite evidence of unemployment and lack of income.  The resulting order was therefore disproportionate, practically impossible to fulfill, and unjust.  
36.	By ignoring established authority, the judgment imposed a financial obligation without regard to capacity or ability, thereby undermining fairness and procedural propriety.  This omission rendered the judgment procedurally unfair and legally unsustainable, for proper application of the principle requires that orders reflect both liability and ability, ensuring that justice remains proportionate and achievable.
37.	Accordingly, Ground 3 succeeds.  The order is varied to reflect the Appellant’s financial circumstances, ensuring fairness in enforcement.
Issue 4: Rental Obligations vs. Sale
38.	The Appellant argued that the Respondent effectively forced her to purchase the vehicle by refusing repair and insisting she take it.  The subsequent acceptance of $5,000 from the sale proceeds constituted a concluded sale.  Once ownership passed, the rental relationship ceased, and the Respondent could not claim ongoing rental loss.  Counsel submitted that the Respondent cannot both treat the vehicle as sold and claim rent.
39.	The Respondent maintained that the $5,000 was distinct from rental charges and represented the purchase price of the car.  The Respondent argued that rental charges continued to accrue while the vehicle was in the Appellant’s possession and use, including through her friend.  The Respondent submitted that the Single Magistrate properly awarded damages for rental loss.
40.	The doctrine of election prevents a party from treating the vehicle as both sold and rented.  In Development Bank of Kiribati v Kabuta [2010] KIHC 69, the Court cautioned against allowing claims to accumulate unchecked, emphasizing that parties must act promptly and consistently.  
41.	This principle is long-established in the common law: in British Westinghouse Electric v Underground Electric Railways Co of London Ltd [1912] AC 673, the House of Lords underscored that damages law requires consistency and prohibits recovery on contradictory bases, while in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, it was reaffirmed that parties must act reasonably and cannot pursue remedies that result in double recovery.  
42.	In the present case, the Respondent’s acceptance of $5,000 without objection constituted a sale transaction.  Once ownership passed, the rental relationship ceased, and the Respondent could not simultaneously claim the capital value and rental income.  To do so amounts to double recovery.
43.	Applying that framework, the Single Magistrate failed to determine whether ownership had transferred and whether rental obligations had ceased.  This omission was an error of law, as it allowed damages to be awarded on inconsistent bases, both sale and rental, thereby inflating recovery beyond what was legally sustainable.    
44.	Proper application of the doctrine of election requires that the Respondent’s claim be confined to one basis of recovery, not both.  Once ownership passed, rental obligations ended, and the Single Magistrate’s failure to recognize this undermined the judgment and resulted in an excessive and unsustainable award.
45.	Accordingly, the appeal succeeds on Ground 4, and the damages must be reduced to eliminate double recovery arising from inconsistent treatment of sale and rental obligations.
46.	In disposing of Issue 4, the Court is mindful that it could remit the case to the Single Magistrate to determine this issue alone.  However, after careful consideration, the Court declines to remit the matter.  
47.	In the present case, the material facts are undisputed and fully contained in the record: the Respondent refused repair, insisted the Appellant take the vehicle, and subsequently accepted $5,000 from its sale.  These undisputed facts were before the Single Magistrate, yet the correct legal principle was not applied.   The error lies in the application of law, not in the absence of evidence.  No further inquiry is required.  
48.	Pursuant to section 66 of the Magistrates’ Court Ordinance (Cap. 52), this Court is seized of appellate jurisdiction, and section 72 empowers it to vary or substitute orders without remittal where no further fact‑finding is required.  To remit would cause unnecessary delay, expense, and risk of inconsistent reasoning, whereas disposal here ensures finality, proportionality, and coherence in the outcome. 
49.	The Court therefore determines the issue conclusively and substitutes the appropriate order.

V. Conclusion and Orders
50.	For the reasons set out under Issues 1–4, the Court finds that the judgment of the Single Magistrate was affected by errors of law and principle.  The duty to mitigate was ignored, damages were awarded in excess of proven loss, financial circumstances were not considered, and the Respondent was permitted double recovery by conflating sale and rental obligations.
51.	In making these substituted orders, the Court acts pursuant to its appellate jurisdiction under section 66 of the Magistrates’ Court Ordinance (Cap. 52) and its powers under section 72 to vary and substitute orders without remittal where the record is complete.
52.	Accordingly, the appeal is allowed.  The orders of the Single Magistrate are varied as follows:
1)	Damages: The award of $7,315 is set aside.  In substitution, the Respondent shall recover the sum of $6,500, inclusive of the $5,000 already received from the sale of the vehicle.  This figure reflects substantiated loss, avoids double recovery, and restores proportionality to the evidence.
2)	Payment Terms: The Appellant shall pay the balance of $1,500 (being the difference between the $6,500 award and the $5,000 already received) within six months from the date of this judgment, in recognition of her financial circumstances and capacity to pay.
3)	Interest: No interest shall accrue on the reduced award, given the Respondent’s partial recovery and the Appellant’s financial hardship.
4)	Costs: Each party shall bear their own costs of the appeal; the Court being satisfied that both sides contributed to the procedural and evidential difficulties below.
It is so ordered.
Delivered at Betio, this 24th day of December 2025.

HON. AOMORO AMTEN
Judge of the High Court