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Court of AppealDismissedCivil Appeal 27 of 2018· [2022] KECA 679 (KLR)

Julius Onkware Akunga v Chief Magistrate's Court Kisii & another

Court of Appeal
8 July 2022
MNMumbi NgugiPKP.O. KiageFTF. Tuiyott
2,368 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a claim over lost court exhibits, confirming that special damages must be specifically pleaded and strictly proved with credible evidence.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the High Court's dismissal of the appellant's first appeal. The appellant's camera, bag, flash and photographs, produced as exhibits in a criminal case, were lost while in the court's custody. He sued for special damages of Kshs. 16,700, general damages and loss of business, having already received Kshs. 45,000 in compensation. The trial court dismissed his claim and the High Court (Okwany J) dismissed his first appeal, finding the proved loss was only Kshs. 10,700 and that the loss-of-business claim was unproved. Mumbi Ngugi JA, writing for a unanimous bench, held that on a second appeal the Court is confined to matters of law, applying Kenya Breweries v Godfrey Odoyo. The appellant's grounds were almost entirely factual challenges to concurrent findings, which the Court could not disturb absent perversity or misdirection. The only arguably legal issue - loss of business - failed because special damages must be specifically pleaded and strictly proved, and no credible documentary evidence supported the alleged Kshs. 1,500 daily earnings. The Court found the appellant was seeking to enrich himself beyond his proved loss and dismissed the appeal with no order as to costs, affirming the High Court's decision. Kiage JA and Tuiyott JA each concurred briefly with Ngugi JA's judgment.

Key legal issues

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01

Scope of second appeal to the Court of Appeal

Holding

The Court's jurisdiction on a second appeal is confined to matters of law; the appellant's grounds were almost entirely issues of fact already determined by the two courts below.

Reasoning

Relying on Kenya Breweries Limited v Godfrey Odoyo, the Court held it must resist the temptation of delving into matters of fact, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. The appellant raised no such error, so the concurrent findings stood.

02

Proof of special damages for loss of business

Holding

The claim for loss of business failed because it was not proved with the required particularity; mere figures in a receipt book without credible supporting evidence cannot ground an award.

Reasoning

The appellant claimed Kshs. 1,500 daily business loss but led no evidence of earnings over any period, and an 'additional list of documents' had never been placed before the trial court. The Court endorsed the first appellate court's finding that there was no credible documentary evidence on which to base an award.

p. 4
03

Value of the lost camera and items

Holding

The concurrent finding that the lost items were worth Kshs. 10,700, based on the appellant's own evidence and the purchase agreement, could not be disturbed on second appeal.

Reasoning

The criminal case particulars and the appellant's own testimony valued the camera at Kshs. 6,000, corroborated by exhibit P4, the purchase agreement. The claim that the camera was worth Kshs. 45,000 was unsupported; the Kshs. 45,000 paid was compensation exceeding the proved loss.

p. 4

Legal principles established

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  • On a second appeal from the High Court exercising appellate jurisdiction, the Court of Appeal is confined to matters of law only.
  • The Court of Appeal will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Special damages must be both specifically pleaded and strictly proved.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (5)

  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR

    Second appeal confined to matters of law unless courts below considered or failed to consider matters or decision is perverse

  • National Social Security Fund Board of Trustees vs Sifa International Limited
    (2016) eKLR

    Special damages must be specifically pleaded and specifically proved with particularity

  • Macharia & Waiguru vs Muranga Municipal Council & Another
    (2014) eKLR

    Special damages must be specifically pleaded and proved

  • Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa
    KSM CACA 179 of 1995 (ur)

    Special damages need to be specifically pleaded before they can be awarded

  • Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited
    [2016] eKLR

    Special damages must be specifically pleaded and strictly proved

On appeal from
High Court of Kenya at Kisii
HCCA No. 1 of 2017
Jurisdiction invoked
Second appeal to the Court of Appeal from the High Court exercising appellate jurisdiction, confined to matters 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, "Julius Onkware Akunga v Chief Magistrate's Court Kisii & another", Case Analysis (2022). Civil Appeal 27 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/679/eng@2022-07-08

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