Simon Ndungu Mungai & Pastor Vincent Mungai t/a Overcomers Christian Centre & another [2019] KECA 914 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed tenants' bid for Kshs 23.8 million, confirming special damages must be specifically itemized and strictly proved with evidence.
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 learned judge had jurisdiction to set aside the interlocutory judgment
- 2.Whether in finding that the respondent had filed a defence the learned judge rightly set aside the interlocutory judgment
- 3.Whether the judge wrongly declined to award the special damages claimed
- 4.Whether the learned judge rightly awarded the sum of Kshs. 2,000,000 in general damages
Key legal issues
#Jurisdiction to set aside an interlocutory judgment without an application
The High Court had jurisdiction to set aside the interlocutory judgment ex debito justiciae under Order IXA rule 10 even though the respondent never applied.
Order IXA rule 10 empowers the court to set aside or vary a judgment entered under that Order on such terms as are just. Unlike Order IXB rule 8, it contains no requirement of a formal application. The distinction between the two provisions confirmed the court's power to act on its own motion, so the absence of any application by the respondent did not vitiate the judge's exercise of that power.
Sufficiency of the defence against the amended plaint
The respondent's original defence was an effective response to the amended plaint; the interlocutory judgment was wrongly entered.
The amendment merely added detail about the alleged confiscation of goods. In law, amendments relate back to the original pleading, so there was one plaint to answer. The defence specifically denied refusing to release the goods and put the appellants to strict proof, amounting to a joinder of issue under Order VI rule 10(2). The Deputy Registrar erred in entering judgment notwithstanding that defence.
Special damages claim of Kshs. 23,835,255
The claim failed because the special damages were neither specifically pleaded with itemization nor strictly proved by documentary evidence.
The amended plaint disclosed lump-sum figures with no itemized valuation or breakdown. The renovation figure shifted from Kshs. 855,305 to Kshs. 1.4 million with no contract produced; the lease also barred refund of monies spent. Loss of business and value of lost goods had no supporting receipts, valuations or documentary evidence. As first appellate court, the Court found nothing proved.
General damages award of Kshs. 2,000,000 for unlawful eviction
The award was fair and reasonable; the appellate court declined to interfere.
An appellate court interferes with damages only where the judge applied a wrong principle, took into account irrelevant factors or left out relevant ones, or where the award is so inordinately high or low as to be a wholly erroneous estimate. The appellants advanced no specific reasons for finding the award insufficient, so there was no basis for substitution.
Legal principles established
#- Under Order IXA rule 10, a court may set aside an interlocutory judgment on just terms of its own motion; no formal application by a party is required, unlike Order IXB rule 8 which requires an application.
- An amendment to a pleading relates back to the original pleading, so a defence that specifically denied the claims remained effective against an amended plaint without an amended defence.
- Special damages must be both specifically pleaded and strictly proved; they are not the natural or probable consequence of the act complained of and may not be inferred.
- An appellate court will not disturb an award of damages unless the judge proceeded on a wrong principle or misapprehended the evidence, or the award is so inordinately high or low as to be a wholly erroneous estimate.
Court orders
#- 1.Appeal dismissed
- 2.The respondent shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- HCCC No. 67 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (court's first appellate duty re-evaluating evidence); no specific Article invoked in the judgment.
Relief refused
#Setting aside of the interlocutory judgment (challenge to trial judge's jurisdiction to set it aside)
Order IXA rule 10 empowers the court to set aside such judgment on just terms without any formal application by a party
Special damages of Kshs. 23,835,255 (renovations, loss of business, lost and damaged goods)
Not specifically pleaded, quantified or proved by oral or documentary evidence; renovation sums were also non-reimbursable under the lease
Increase of the general damages award of Kshs. 2,000,000
No wrong principle or misapprehension of evidence demonstrated; award was fair and reasonable
Costs
The respondent shall have the costs of the appeal.
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, the appeal is without merit and is hereby dismissed. The respondent shall have the costs of the appeal.
It is so ordered.
the provision sufficiently empowered the court to set aside the interlocutory judgment on just terms, and we so find.
special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act.
In law, amendments to pleadings go back to the original pleading.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Issues in the judgment
#Inconsistent figures for the total special damages claimed - the amended plaint figures are said to total Kshs. 23,835,000 while elsewhere the claim is stated as Kshs. 23,835,255 and Kshs. 23,835,225
The complaint figure appears with differing amounts in the same document (1,430,305 and 1,440,305 in the prayer)
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.
- Mwamburi t/a Kaddy Fashion and Supplies v Mbololo Ushirika Company Limited (Environment and Land Appeal E015 of 2025) (Environment and Land) [2026] KEELC 2471 (KLR)[2026] KEELC 2471 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Simon Ndungu Mungai & Pastor Vincent Mungai t/a Overcomers Christian Centre & another [2019] KECA 914 (KLR)", Case Analysis (2019). Civil Appeal No. 23 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/914/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.