Bagine v Bundi (Civil Appeal 283 of 1996) [1997] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that 'loss of user' and repair costs must be strictly proven with evidence, not estimated—vague claims will be thrown out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award of Kshs. 540,000/= as damages for loss of user, assessed as general damages, was lawful
- 2.Whether the special damages of Kshs. 277,750/= for repair costs were strictly proved
Key legal issues
#Whether loss of user may be assessed as general damages
Loss of user can only be special damages; it cannot be equated to general damages assessed 'doing the best I can', and must be strictly proved
The trial judge treated the respondent's claimed loss of user as general damages despite it having been pleaded as special damages 'to be proved at the hearing of the suit'. The Court held that loss of user is a specific loss to the claimant and in no circumstances can be equated to general damages. The judge also erred in assessing it over nearly three years, when it should be limited to a reasonable repair period plus assessment time, for which there was no evidence.
Whether the repair costs of Kshs. 277,750/= were strictly proved
They were not; an estimate without expert evidence of exact repair costs, pre-accident value or salvage value does not prove special damages
The claim was based on an estimate of the cost of parts to be replaced. No expert (automobile assessor) was called, and there was no evidence of the pre-accident value or salvage value of the lorry, or whether the sum could properly be spent to put it back on the road. The claimant admitted he had not repaired the vehicle. The burden was on the claimant to prove his damage, and he failed to discharge it.
Legal principles established
#- Special damages must be both pleaded and strictly proved
- Damages claimed under the title 'loss of user' can only be special damages and cannot be equated to general damages
- Damages for loss of user of a chattel are limited to a reasonable period, being the repair period plus time to assess repair costs
- A claimant who produces only an estimate of repair costs, without expert evidence, has not proved his damage
Court orders
#- 1.Appeal allowed
- 2.Judgment of the superior court in so far as it relates to assessment of damages set aside in its entirety
- 3.Appellants to have costs of the appeal
- 4.Both parties to bear their own costs in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Civil Suit No. 159 of 1994
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal at Nairobi, Civil Appeal 283 of 1996)
Relief refused
#Retention of the award of Kshs. 540,000/= for loss of user
Loss of user can only be special damages and must be strictly proved; the award was made in total disregard of the principles for assessing special damages
Retention of the award of Kshs. 277,750/= for repair costs
Only an estimate was produced; no expert evidence of exact repair costs, pre-accident value or salvage value was adduced
Costs
The appellants will have costs of this appeal but both parties will bear their own costs in the superior court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It has been held time and again by this court that special damages must be pleaded and strictly proved.
We must and ought to make it clear that damages claimed under the title “loss of user” can only be special damages.
This appeal is therefore allowed and the judgment of the superior court in so far as it relates to assessment of damages is set aside in its entirety. The appellants will have costs of this appeal but both parties will bear their own costs in the superior court. These are our orders.
Issues in the judgment
#The judgment states the special damages award for repair costs as shs. 227,750/= in one passage and Kshs. 277,750/= in later passages
The quoted passage from Idi Ayub Shabani contains a typographical error ('strightly')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndambuki v Bahari Forwarders Ltd (Civil Case E185 of 2023) [2026] KEMC 295 (KLR)[2026] KEMC 295 (KLR)2 Jul 2026applied
- Sanghani & 2 others t/a RK Sanghani v Trakana Mombasa Ltd (Civil Case E142 of 2022) [2026] KEMC 108 (KLR)[2026] KEMC 108 (KLR)27 Apr 2026applied
- Motrex Limited v Dahir & another (Civil Case E134 of 2023) [2025] KEMC 301 (KLR)[2025] KEMC 301 (KLR)25 Nov 2025applied
- Kamau v Standard Chartered Bank Limited & 2 others (Environment and Land Case 24 of 2015) [2025] KEELC 7861 (KLR)[2025] KEELC 7861 (KLR)12 Nov 2025
- Kibondori v Keror (Environment and Land Case E024 of 2024) [2025] KEELC 6331 (KLR)[2025] KEELC 6331 (KLR)25 Sept 2025applied
- Kyule v Thuku & another (Civil Case E125 of 2021) [2025] KEMC 227 (KLR)[2025] KEMC 227 (KLR)4 Aug 2025applied
- Attorney General (On Behalf of the Ministry of Information Communication and Technology) v Mashline Agencies (K) Limited (Civil Case 69 of 2018) [2025] KEMC 66 (KLR)[2025] KEMC 66 (KLR)14 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Bagine v Bundi (Civil Appeal 283 of 1996) [1997] KECA 54 (KLR)", Case Analysis (1997). Civil Appeal 283 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/54/eng@1997-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.