Jackson K. Kiptoo v Attorney General [2009] KECA 455 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that serving notice of intent to sue the Government satisfies the law even if its form is imperfect.
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 issue of notice under section 13A of the Government Proceedings Act, though not pleaded, could properly be considered by the trial court
- 2.Whether the finding that no notice under section 13A was issued, and the resulting dismissal for want of jurisdiction, was correct
- 3.Whether the trial court's assessment of 100% liability against the Army lorry driver should stand
- 4.Whether the special damages claim was strictly proved
- 5.Whether the claim for loss of user was proved
Key legal issues
#Raising an unpleaded issue of statutory notice/jurisdiction at trial
The trial judge was entitled to consider and adjudicate on the notice issue even though it was not pleaded, because jurisdiction may be raised at any time; the issue was argued by both counsel at trial.
The court held that although the issue ordinarily ought to be raised in limine, jurisdiction is fundamental to judicial proceedings and may be raised at any time subject to costs. A court may decide issues argued before it even if not arising from pleadings, per Odd Jobs v Mubia. Here the issue was raised during hearing and both counsel made recorded submissions, so the judge was duty-bound to determine it. The error was not in considering the issue but in the finding made on it.
Compliance with section 13A of the Government Proceedings Act
A notice was in fact issued and served; the Attorney General's complaint was only as to form, and having not produced the document or called witnesses, there was no basis for a finding that no notice existed.
The existence of the notice was never challenged - state counsel's cross-examination and submissions showed the notice was in his possession and his only complaint was that it did not conform to the prescribed form in the third schedule. The document was not produced in evidence by the Attorney General, so no finding could be made on it. Since the AG obtained instructions and filed a defence, the notice served its purpose. The order striking out the suit for want of jurisdiction was set aside.
Liability for the road accident
The finding of 100% liability against the driver of the Army lorry was supported by the uncontroverted eyewitness evidence of the loader, Tomno, and was not disturbed; there was no cross-appeal.
The only eyewitness, Tomno, testified that the appellant's lorry ran into a stationary Army lorry on the Naivasha/Nakuru road at dusk in rain and mist. The Attorney General called no evidence in rebuttal and did not prove the negligence pleaded against the appellant's driver. On re-evaluation the court was satisfied there was a proper basis for assessing liability at 100% against the Army lorry driver, and in any event there was no cross-appeal.
Proof of special damages
The trial court erred in rejecting the whole special damages claim merely because the assessor's report was excluded; the receipts and supporting documents were admissible and proved the claim, save for Shs.2,000/= transport for inspection.
The payments were consistent with the damage noted in the police inspection certificate, and the purchases were supported by proper documents which the appellant was entitled to produce. The exclusion of the assessor's report could not justify ignoring all the other exhibits. However, repair costs were pleaded at Shs.700,000/= and only that sum, being a specific plea, was awardable even though a higher figure was proved; judgment entered for Shs.801,100/=.
Loss of user
The claim for loss of user was not strictly proved as pleaded; the appellant's own evidence was inconsistent and unclear, and there was no evidence of mitigation, so no award was made.
Loss of user is a claim in special damages which must be pleaded and strictly proved. The evidence of the alleged earnings per trip was contradictory and did not permit an accurate or fair assessment. The appellant could have tendered clear evidence but did not. Further, he was under a duty to mitigate his loss and nothing on record showed any attempts to mitigate. That ground of appeal was dismissed.
Legal principles established
#- A notice of intent to sue under section 13A of the Government Proceedings Act satisfies the section if it was actually issued and served, enabling the Government to obtain instructions and file a defence; a challenge to its form without producing the document cannot ground a finding of no notice
- A question going to jurisdiction may be raised at any stage of the proceedings, even if not pleaded, subject only to considerations of costs
- On a first appeal the court re-examines and re-evaluates the evidence afresh, while allowing for the trial court's advantage of seeing and hearing witnesses
- Special damages must be specifically pleaded and strictly proved; a court may award only the amount pleaded even if a higher sum is proved
- It is the plaintiff's duty to take all reasonable steps to mitigate loss consequent upon the defendant's wrongful act
Court orders
#- 1.Appeal allowed on the jurisdiction/notice issue and the order striking out the suit set aside
- 2.Finding of 100% liability against the driver of the Army lorry left undisturbed
- 3.Judgment entered for the appellant on special damages in the sum of Shs.801,100/=
- 4.Claim for loss of user dismissed
- 5.Judgment and decree to be entered in the superior court in accordance with the appellate findings
- 6.Appellant awarded costs of the appeal and costs of the suit 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 Nairobi
- H.C.C.C. No. 422 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate provisions applicable to civil appeals (judgment does not cite a specific provision)
Relief refused
#Award of repair costs exceeding the pleaded figure of Shs.700,000/= (actual proved figure higher)
Damages must be specifically pleaded; no leave to amend was sought
Shs.2,000/= for transport for inspection
Not proved
Loss of user damages
Claim not strictly proved and no evidence of mitigation
Costs
The appellant shall have the costs of the appeal and the costs of the suit 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.
In our view, the leaned Judge was in error in finding that she had no jurisdiction in the matter and in striking out the appellant’s suit on that basis. We allow the appeal on that issue and set aside the order striking out the suit.
The appellant shall have the costs of the appeal and the costs of the suit in the superior court.
The upshot is that there shall be judgment for the appellant on special damages in the sum of Shs.801,100/=.
as jurisdiction is everything in judicial proceedings, it may be raised at any time subject only to considerations of costs
we are bound to re-examine the record afresh, re-evaluate the evidence and make our own conclusions in the matter
It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues
“Loss of user” is a claim in special damages and ought to be pleaded and strictly proved
Issues in the judgment
#The judgment's opening states the superior court decision was made on 30th July, 2002, while the appeal header describes it as dated 30th July, 2003 - an internal inconsistency in the date of the decision below
The header describes the appeal as from a judgment and decree dated 30th July, 2003, but the body of the judgment states the decision was made on 30th July, 2002
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR)[2026] KECA 910 (KLR)15 May 2026applied
- Muhuru Bay Fishermen Co-operative Union Society Limited v Co-operative Bank of Kenya Limited & 10 others [2015] KECA 212 (KLR)[2015] KECA 212 (KLR)20 Nov 2015
Cite this brief
#Cite this brief
Caselaw, "Jackson K. Kiptoo v Attorney General [2009] KECA 455 (KLR)", Case Analysis (2009). Civil Appeal 240 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/455/eng@2009-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.