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Court of AppealDismissedNot stated in the judgment· [2024] KECA 978 (KLR)

Vishva Stones Supplies Company Limited v RSR Stone (2006) Limited (Civil Appeal (Application) E308 of 2020) [2024] KECA 978 (KLR)

Court of Appeal
26 July 2024
SKS. ole KantaiPNP. NyamweyaJMJ. Mativo
3,232 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a Kshs.5.2 million claim because the company never itemized its special damages in its pleadings—only in a witness statement.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal (Nairobi) against the judgment of Makau, J. of 20th December 2018 in Milimani HCCC No. 388 of 2007, which dismissed the appellant Vishva Stone Suppliers Company Limited's suit against RSR Stone (2006) Limited for failure to particularize special damages pleaded in its plaint. The underlying dispute arose from a sublease of 1st March 2006 of LR No. 7538 for quarrying, which the appellant unilaterally terminated in August 2006, claiming rent arrears, reimbursement of KPLC payments and a stolen switchboard, and damage to machinery. After an ex parte judgment was set aside by consent, the High Court tried only the disputed sum of Kshs.3,558,114.40 and dismissed the claim because the global figure of Kshs.5,214,114.40 in paragraphs 4 and 6 of the plaint lacked particulars. The appellant argued that particulars in its witness statement sufficed and that Article 159(2)(d) cured any defect. The Court of Appeal affirmed the decision below in a unanimous joint judgment, reiterating that special damages must be specifically pleaded and strictly proved, that a witness statement is evidence and cannot supplement pleadings, and that Article 159(2)(d) is no cure for failure to plead special damages with specificity. The appeal was dismissed with costs to the respondent both in the appeal and in the High Court.

Key legal issues

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01

Whether the special damages of Kshs.5,214,114.40 were specifically pleaded in the plaint

Holding

They were not; the plaint merely threw a global figure at the trial court without particulars, contrary to the settled principle that special damages must be specifically claimed and strictly proved

Reasoning

Paragraphs 4 and 6 of the plaint stated only a global sum of Kshs.5,214,114.40 as at October 2006 with accrued interest and bank charges, without breaking down the constituent items. The appellant's counsel did not dispute the requirement that special damages be strictly pleaded and proved, nor that the claim was not specifically pleaded. The claim therefore lacked the particulars required by the settled rule, and the plaint as drawn did not particularize the special damages.

p. 5
02

Whether particulars in a witness statement can cure the absence of particulars in the pleadings

Holding

No. A witness statement is evidence whose purpose is to prove averments already in the pleadings; it cannot supplement or amend a pleading

Reasoning

The court drew a sharp distinction between pleadings, which are formal written statements outlining claims and defences, and evidence, which is the means by which facts are proved. A witness statement is adopted as evidence in chief and tested by cross-examination. Evidence is led to prove pleadings, not to expand them, so particulars appearing for the first time in a witness statement cannot rescue a claim for special damages that was never particularized in the plaint.

p. 5
03

Whether Article 159(2)(d) of the Constitution (procedural technicalities) exempts a litigant from the pleading requirement for special damages

Holding

No. The requirement that special damages be pleaded and strictly proved is a substantive rule, not a procedural technicality

Reasoning

The court held that Article 159(2)(d) cannot be used as a cure for failure to plead special damages with specificity or as a basis to convert evidence into a pleading. Relying on the IEBC v Mutinda Mule adoption of Sir Jack Jacob's article, the court emphasized that parties are bound by their own pleadings, which set the agenda for trial, and a decision on a claim not pleaded would be a denial of justice.

p. 5

Legal principles established

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  • Special damages must not only be specifically pleaded but also strictly proved before they can be awarded by a court
  • A witness statement is evidence and cannot supplement a pleading; parties are bound by their pleadings and no evidence can be led beyond them
  • Article 159(2)(d) of the Constitution cannot be invoked to cure a failure to plead special damages with specificity or to convert evidence into a pleading

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal and of the High Court are awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActNot specified (referred to generally)
  • Civil Procedure RulesOrder 3 Rule 2
  • Evidence ActSection 3 (definition of 'evidence')

Cases cited (6)

  • Kenya Ports Authority vs Kuston (Kenya) Limited
    [2009] 2EA 212
  • Herbert Hahn vs Amrik Singh
    [1985] eKLR; [1985] KLR 716
  • Daniel Kosgei Ngelechei vs Catholic Diocese Registered Trustees of Eldoret & Another
    [2016] eKLR
  • Total (Kenya) Limited Formerly Caltex Oil (Kenya) Limited vs Janevams Limited
    [2015] eKLR
  • Stroms Bruks Aktie Bolag & Others v. John & Peter Hutchison
    [1905] AC 515
  • Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 Others
    [2014] eKLR
On appeal from
High Court of Kenya (Milimani)
HCCC No. 388 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vishva Stones Supplies Company Limited v RSR Stone (2006) Limited (Civil Appeal (Application) E308 of 2020) [2024] KECA 978 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/978/eng@2024-07-26

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