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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (number not stated in judgment)· [2024] KECA 1736 (KLR)

Muzahim Salim Mohamed Bajaber v Abubakar Ahmed Abdulrahman & 1 other

Court of Appeal of Kenya
6 December 2024
7,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal from the judgment of Sergon, J. of the High Court at Nairobi delivered on 20th July 2018, in which the 1st respondent, a car dealer, was awarded Kshs.28,600,000 (inclusive of special damages of Kshs.24,350,000, USD 2,500 and general damages) jointly against the appellant, a clearing agent, and the Attorney General over the disappearance of six imported motor vehicles. The appellant appealed on 12 grounds attacking the admission of documents, ownership, conversion, proof of special damages and the award of general damages; the 1st respondent cross-appealed seeking equal liability against the Attorney General and interest from the date of filing suit. The Court of Appeal allowed the appeal and dismissed the cross-appeal, reversing the High Court judgment in its entirety. The Court held that the trial Judge erred in admitting invoices, witness statements and other documents under section 35(1) of the Evidence Act without calling their makers, where no basis had been laid under the statutory proviso. With those documents excluded, the 1st respondent failed to prove ownership of the vehicles and hence conversion. The Court further held that the special damage claims were not strictly proved, no valuation reports or expert evidence were produced, and the Judge failed to give credit for two vehicles settled by agreement. The award of general damages for harassment and anguish was also overturned, the 1st respondent's own letters showing satisfaction with police investigations. The Court directed that the suit be dismissed with costs to the appellant and the 2nd respondent.

Key legal issues

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01

Admissibility of documents under section 35 of the Evidence Act without calling makers

Holding

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

Reasoning

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.

p. 11
02

Proof of ownership and conversion

Holding

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

Reasoning

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.

p. 12
03

Proof of special damages

Holding

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

Reasoning

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.

p. 12
04

General damages for harassment, distress and anguish

Holding

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

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Cross-appeal dismissed
  3. 3.Suit in the High Court dismissed
  4. 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

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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, "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.