Muzahim Salim Mohamed Bajaber v Abubakar Ahmed Abdulrahman & 1 other
The bottom line
#Kenya's Court of Appeal threw out a Kshs.28.6 million award because the claimant failed to strictly prove his damages or call the makers of his key documents.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of documents under section 35 of the Evidence Act without calling makers
The trial Judge erred in admitting invoices, witness statements and other documents where no basis was laid under the proviso to section 35(1); the 1st respondent was not entitled to rely on secondary evidence
The makers were alive, known to the 1st respondent, and he had travelled to Dubai and flown them to Kenya to record statements, so he could have procured their attendance. He knew where they were and had been in contact with them. No evidence showed they were dead, untraceable, incapable, or that attendance would cause unreasonable delay or expense. Admitting the documents without this basis was wrong.
Proof of ownership and conversion
Because the invoices and import documents were improperly admitted, the 1st respondent failed to prove ownership of the motor vehicles, and conversion could not stand
Conversion requires proof that the plaintiff owned or had possession of the goods. The only documentary proof of ownership was the improperly admitted invoices and deeds of assignment. With those excluded, no evidence remained to show the 1st respondent owned the six vehicles, so the tort of conversion could not apply or be proved.
Proof of special damages
Claims for loss of the vehicles, travel costs, witness airfare and other expenses were special damages requiring strict proof; oral evidence and unsupported particulars were insufficient
Special damages must be specifically pleaded and strictly proved. The 1st respondent produced no valuation reports, called no expert, and offered only oral testimony for the travel and witness expenses. No receipts or documentary evidence supported the claims of Kshs.3,600,000 for 120 trips, Kshs.255,000 airfare or Kshs.550,000 other expenses. Further, the Judge failed to give credit for the two vehicles settled by agreement.
General damages for harassment, distress and anguish
The award of general damages was wrong; there was no evidence of arrest, detention, harassment or anguish, and the 1st respondent's own letters showed satisfaction with police handling
Apart from the 1st respondent's own allegation, no independent evidence showed he was detained. The settlement agreement was drawn by a lawyer, witnessed, and partly performed, indicating a free atmosphere. His letters to the Director CID of 2nd May 2003 and 9th September 2003 expressed appreciation and satisfaction with the investigations, contradicting any claim of harassment or distress.
Legal principles established
#- Special damages must not only be specifically pleaded but must also be strictly proved with evidence; particulars alone are insufficient
- Under section 35(1) of the Evidence Act, documents must be produced by their makers unless the maker is dead, cannot be found, is incapable of giving evidence, or attendance cannot be procured without unreasonable delay or expense
- On a first appeal, the Court of Appeal must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- Without proof of ownership, the tort of conversion cannot be made out
Court orders
#- 1.Appeal allowed
- 2.Cross-appeal dismissed
- 3.Suit in the High Court dismissed
- 4.Costs awarded to the appellant and the 2nd respondent
- On appeal from
- High Court of Kenya at Nairobi
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal under appellate statutory provisions (not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muzahim Salim Mohamed Bajaber v Abubakar Ahmed Abdulrahman & 1 other", Case Analysis (2024). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1736/eng@2024-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.