MOSES JOMO OLENGEBEN v SAMSON MASEA & another [2010] KECA 452 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can recover the value of stolen cattle using your own testimony and a police charge sheet, without a formal valuation report.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether special damages of Kshs.490,600 for stolen cattle were strictly proved as required by law
- 2.Whether the trial court entered judgment on an amount not pleaded in the plaint, and whether it could decide issues without an amended plaint
- 3.Whether the trial court could rely on the charge sheet figures and oral evidence of the respondents on the value of the cattle, in the absence of formal valuation or expert evidence
Key legal issues
#Strict proof of special damages
The charge sheet value of the stolen cattle, supported by the respondents' unchallenged oral evidence, constituted strict proof on a balance of probabilities notwithstanding discrepancies in the pleaded figures
Liability was admitted and the appellant gave no conflicting values. The charge sheet figures plus the oral testimony of the two farmer owners supplied sufficient proof; nothing on record countered the accepted value, and the court retains discretion to award a proper amount even if less than that claimed.
Proof of value without formal valuation or expert evidence
Oral evidence of the cattle owners as to the value of their herds sufficed; formal valuation is not a prerequisite and local market values may inform the assessment
The court applied a common-sense principle that cattle owners know the value of their toil; in real-life situations formal valuations are not required, and a court may have regard to local circumstances and local market values in assessing damages.
Deciding unpleaded issues without amendment
Although counsel relied on Blay v Pollard for the rule that cases must be decided on the issues on the record, the court found the award was anchored on the pleaded claim and the charge sheet, so no unpleaded issue was decided
The respondents had indicated the value of each of the twenty-five cows in the plaint, the value per the charge sheet was never challenged, and the discrepancy between separate claims and the aggregate pleaded was not fatal to the claim.
Legal principles established
#- Special damages must be both pleaded and strictly proved, but what amounts to strict proof depends on the circumstances of the case
- On a first appeal, the appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses
- Formal valuation of cattle is not a prerequisite to recovering their value; a court may rely on the owner-farmers' evidence of local market value
Court orders
#- 1.Judgment of the superior court upheld
- 2.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii H.C.C. No. 214 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal jurisdiction over appeals from the High Court (the judgment states 'As this is a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record')
Relief refused
#Setting aside or varying the award of Kshs.490,600 as special damages
The charge sheet figures, corroborated by the respondents' oral evidence and unchallenged by the appellant, satisfied strict proof on a balance of probabilities
Requiring expert valuation evidence or an amended plaint as a condition of the award
Cattle owners know the value of their herds and formal valuation is not a prerequisite; local market values may be relied upon
Costs
Appeal dismissed with costs to the respondents.
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 the result we uphold the judgment of the superior court and dismiss this appeal with costs to the respondents.
A claim for special damages should not only be pleaded but strictly proved. What amount to strict proof depends on circumstances
formal valuations of cattle is not a prerequisite to recovering their value in court because the court would be perfectly entitled to rely on the prevailing local value of cattle as per the evidence of the local farmers
As this is a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusion
Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)[2018] KECA 158 (KLR)18 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "MOSES JOMO OLENGEBEN v SAMSON MASEA & another [2010] KECA 452 (KLR)", Case Analysis (2010). Civil Appeal 29 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/452/eng@2010-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.