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Court of AppealDismissedCivil Appeal No. 3 of 2018

Aliff Construction Compant Limited v County Government of Tana River & another [2019] KECA 795 (KLR)

Court of Appeal of Kenya
4 April 2019
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed Aliff Construction's Kshs.21.9 million claim because the company couldn't strictly prove its losses, even though the county government never showed up to defend itself.

What this practically means

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Executive summary

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The appellant contractor contracted with the County Government of Tana River in August 2014 to construct a footbridge at Gamba-Onkolde for Kshs.11,762,395.40. After works were halted in February 2015 pending re-design, the appellant sued in the High Court at Garsen seeking Kshs.21,970,494 for unpaid extra works plus Kshs.920,000 it had paid towards evaluation and re-designing. Following a consent recorded by the parties acknowledging Kshs.2,216,172.94 as owed and leaving the balance to litigation, the suit proceeded partly undefended. The trial Judge (Ongeri, J.) dismissed the claim, finding the appellant had failed to prove it on a balance of probabilities. On appeal, a three-judge bench of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) in a single joint judgment re-evaluated the evidence as required on a first appeal. It held that the absence of the 1st respondent at the hearing did not relieve the appellant of its burden of proof, which it failed to discharge: the director had admitted the contractual sum had been paid, and the contract revealed no entitlement to extra payment. The court further held that the claim was one for special damages, requiring strict proof; the appellant's receipts, salary vouchers, car hire payments and self-prepared schedules were not connected to the alleged extra works. Affirming the judgment of the High Court, the court dismissed the appeal with costs to the 1st respondent on 4th April 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's unchallenged evidence, in the absence of the 1st respondent at the hearing, discharged the burden of proof
  2. 2.Whether the appellant proved its claim for unpaid extra works under the construction contract
  3. 3.Whether the appellant strictly proved its claim for special damages
  4. 4.Whether the learned Judge erred in evaluating the evidence and in effect canvassing the respondent's case

Key legal issues

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01

Whether uncontroverted evidence in the absence of the defendant automatically entitles the plaintiff to judgment

Holding

No. Even where the defendant does not appear at the hearing, the plaintiff remains bound to discharge the legal burden of proof to the required standard.

Reasoning

The court held that the general rule that the burden lies on the party who asserts the affirmative of an issue applies regardless of whether the opposing party participates. The appellant's director admitted the contractual sum had been paid, and the contract disclosed no entitlement to extra payment, so the unchallenged testimony could not sustain the claim. The learned Judge was therefore right to evaluate the evidence herself.

p. 3
02

Standard of proof of special damages

Holding

Special damages must be pleaded and strictly proved with independent evidence tying each item to the loss claimed; schedules prepared by the claimant and unconnected receipts do not suffice.

Reasoning

The court reaffirmed the strict proof standard from Kenya Bus Services v Fredrick Mayende and Bonham Carter v Hyde Park Hotel. The appellant's documents, largely salary vouchers and car hire payments, were never connected to unpaid extra works, and its director's schedules lacked independent corroboration. The claim for special damages accordingly failed.

p. 3
03

Duty of a first appellate court

Holding

A first appeal is decided by way of rehearing: the appellate court must re-evaluate the evidence and reach its own conclusions, subject to the absence of advantage enjoyed by the trial court in seeing and hearing witnesses.

Reasoning

Adopting Kenya Ports Authority v Kuston (Kenya) Limited, the court restated the governing standard for first appeals. Applying it, the court independently reviewed the record and concurred with the trial Judge's findings that the appellant had been paid more than the contractual sum and had failed to prove the alleged agreement to pay for extra works.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • The absence of a defendant at trial does not relieve a plaintiff of the burden of proving its case
  • Special damages must not only be specifically pleaded but also strictly proved; mere production of receipts not connected to the claim is insufficient

Court orders

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  1. 1.Appeal dismissed with costs to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Garsen
H.C.C.C No. 2 of 2015
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's statutory appellate powers

Relief refused

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Claim for Kshs.38,187,693 (or Kshs.21,970,494 as pleaded) for unpaid extra works

The appellant failed to discharge the burden of proof and did not strictly prove the special damages claimed; the director's self-prepared schedules had no independent evidential support

p. 3

Costs

Appeal dismissed with costs to the 1st respondent

Quotable passages

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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 end, for the reasons stated herein above, we find that the appeal lacks merit and is hereby dismissed with costs to the 1st respondent.
p. 3Disposition and costs
It is instructive to note that in as much as the 1st respondent did not participate in the hearing, the appellant was still required to meet the burden of proof. Did the appellant discharge the burden? We do not think so.
p. 3Burden of proof unaffected by defendant's absence
… special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard, C.J. in Bonham Carter vs. Hyde Park Hotel Ltd. [1984] 64 T.R.L 177
p. 3Strict proof of special damages
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.
p. 2Standard on a first appeal

Issues in the judgment

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minor

The consent recorded between the parties is dated 1st March, 2007, which is inconsistent with the contract date of 4th August, 2014 and the suit filed in 2015; this appears to be a typographical error in the judgment

minor

The amount claimed is printed inconsistently as Kshs.21,970,494 in one passage and Kshs.21,9710,494 in another

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, "Aliff Construction Compant Limited v County Government of Tana River & another [2019] KECA 795 (KLR)", Case Analysis (2019). Civil Appeal No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/795/eng@2019-04-04

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