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Court of AppealDismissedCivil Appeal No. 25 of 2013· [2014] KECA 496 (KLR)

Macharia Waiguru v Muranga Municipal Council & Another [2014] KECA 496 (KLR)

Court of Appeal
5 February 2014
3,790 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Waiguru's appeal against Muranga Municipal Council, confirming that unproven special damages and issues not pleaded will fail.

What this practically means

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Executive summary

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This was a second appeal by Macharia Waiguru against the dismissal by Wakiaga, J. of his appeal from the trial magistrate's dismissal of his suit against Muranga Municipal Council and Muranga Motor Spares Limited. The appellant's motor vehicle was towed by the Council in December 2009, allegedly for non-payment of a Ksh. 30 parking fee; the Council said it was abandoned and a nuisance. He claimed general damages for loss of use, Ksh. 300,000 allegedly left in the vehicle, and costs. The Court of Appeal, in a single judgment of the court delivered at Nyeri on 5th February 2014, dismissed the appeal with costs. It held that the trial proceedings were a full hearing at which the appellant testified, not interlocutory proceedings, so no suit remained pending. The High Court judge's remark that he did not understand the basis of the appeal was obiter and did not affect the ratio of the judgment. The allegation of malice failed for want of particulars and want of submissions. The Court held that parties are bound by their pleadings: paragraph 8(b) of the amended plaint, alleging unlawful, deliberate and/or negligent conduct, did not raise the validity of the Council's by-laws under Section 201A of the Local Government Act, an issue never pleaded or canvassed below. The claims for Ksh. 300,000 and loss of user, being special damages, failed for want of specific pleading, particulars and proof. The Court declined to interfere with concurrent findings of the two lower courts absent demonstration that they were based on no evidence or an error of law.

Key legal issues

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01

Whether a suit remains pending for full hearing, as alleged by the appellant

Holding

The trial magistrate conducted a full hearing on 14th April 2010 at which the appellant testified; the proceedings were not interlocutory and no suit is pending.

Reasoning

The record showed the hearing date was taken by consent, the appellant had withdrawn two applications before the trial magistrate, and the appellant himself testified as the first witness. The appellant's claim that he awaits a full hearing was unsupported by the record, and his right-to-hearing argument therefore did not avail him.

p. 4
02

Whether the High Court judge's statement that he did not understand the basis of the appeal vitiated the judgment

Holding

The statement was obiter and did not affect the ratio decidendi or the quality of the reasoning in the judgment.

Reasoning

The Court examined the judgment of 27th September 2012 and found the impugned statement did not impinge on the ratio or the reasoning supporting the dismissal. The statement was therefore obiter and not relevant to the proceedings, and the ground of appeal founded on it failed.

p. 4
03

Whether paragraph 8(b) of the amended plaint placed the validity of the Council's by-laws in issue

Holding

It did not; allegations of unlawfulness, deliberateness or negligence do not raise the presence or absence of a valid by-law, and parties are bound by their pleadings.

Reasoning

The words 'unlawful, deliberate and/or negligent' in their ordinary meaning refer to the state of mind and conduct of an individual, not to the existence of a valid legal instrument. The validity of the by-laws was never pleaded nor canvassed before the trial court, so neither court erred in refusing to determine that issue.

p. 5
04

Whether the claims for Ksh. 300,000 and loss of user were correctly rejected

Holding

They were correctly rejected; they were claims for special damages neither specifically pleaded with particulars nor proved by evidence.

Reasoning

The appellant admitted he tendered no evidence to prove these claims, believing a suit remained pending. Both lower courts made a concurrent finding that no evidence was led on loss of user. The Court would not disturb such concurrent findings absent demonstration that they were based on no evidence or an error of law.

p. 5
05

Whether the judgment below was malicious or contained deliberate mistakes

Holding

The ground failed; malice was never addressed in submissions and no particulars of malice were pleaded in the memorandum of appeal.

Reasoning

An allegation of malice is serious and must be substantiated. The appellant never addressed the Court on malice, no particulars were indicated in the memorandum of appeal, and the contention that the mistakes were deliberate was not canvassed at the hearing. The ground therefore failed.

p. 4

Legal principles established

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  • In a second appeal, the Court of Appeal considers only points of law as prescribed by Section 72 of the Civil Procedure Act
  • Special damages must be specifically pleaded and proved; a claim for loss of user is a claim for special damages
  • Parties are bound by their pleadings; issues for determination before a trial court are found in the pleadings filed in court
  • The Court of Appeal will not interfere with concurrent findings of fact by the two lower courts unless shown to be based on no evidence or an error of law

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 72
  • Appellate Jurisdiction ActSections 3A and 3B
  • Local Government ActSection 201A
  • Muranga General Nuisance By-Law Enforcement ObstructionSection 17(i)

Cases cited (8)

  • Douglas Mbugua Mungai -vs- Harrison Munyi
    Civil Application No. Nai. 167 of 2010
  • Stephen Boro Gitiha -vs- Family Finance Building Society & 3 Others
    Civil Application No. Nai. 263 of 2009
  • Richard Ncharpi Leiyagu -vs- Independent Electoral and Boundaries Commission and 2 Others
    C.A. No. 18 of 2013
  • Byabazaire – v- Mukawano Industries
    (2002) 2 EA 353, 358
  • County Council of Muranga – v- Doughlas Kariuki Muchoki
    Nyeri High Court Civil Appeal No. 13 of 2008
  • Siree Limited –v- Lake Turkana El Molo Lodges
    (2002) 2 E.A. 521
  • Maritim & Another – v- Anjere
    (1990-1994) EA 312 at 316
  • Sande – v- Kenya Cooperative Creameries Limited
    Civil Appeal No. 154
On appeal from
High Court of Kenya at Nyeri
Nyeri H.C.C.A No. 168 of 2012
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal on points of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Macharia Waiguru v Muranga Municipal Council & Another [2014] KECA 496 (KLR)", Case Analysis (2014). Civil Appeal No. 25 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/496/eng@2014-02-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.