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Court of AppealDismissedCourt of Appeal Civil Appeal (from High Court Civil Appeal No. 130 of 2015, Eldoret)

Njogu v County Government of Uasin Gishu (Civil Appeal 12 of 2020) [2025] KECA 1040 (KLR)

Court of Appeal of Kenya
5 June 2025
2,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a trader's bid to recover business losses, ruling you must prove your damages and cannot profit from illegal conduct.

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 Nakuru against the judgment of Sewe, J in High Court Civil Appeal No. 130 of 2015 at Eldoret, which had allowed the respondent's first appeal and dismissed the appellant's suit claiming Kshs. 448,000 for loss of business following two arrests by county enforcement officers, after the trial magistrate had awarded Kshs. 120,000 for 30 days' lost income. The High Court had held, on the authority of Holman v Johnson and Scott v Brown, Doering, Mcnab & Co, that the appellant, who pleaded guilty on both occasions and was discharged under section 35(1) of the Penal Code, could not claim compensation arising from his illegal conduct; it had further found the claim for 112 days unsupported by evidence. The appellant appeared in person; the respondent, though served, did not appear. The Court of Appeal, confined by section 72 of the Civil Procedure Act to matters of law on second appeal, held that the Judge had extensively considered the parties' submissions and properly analysed and re-evaluated the evidence; that the allegation that no notice was given was a question of fact raised for the first time on second appeal and could not be entertained; that the appellant failed to prove the damages claimed, particulars not being proof; and that a plaintiff found criminally culpable on his own plea cannot benefit from that wrongdoing. The Court dismissed the appeal with no order as to costs given the respondent's non-appearance, thereby affirming the High Court's decision.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge of the High Court failed to consider the appellant's submissions on the first appeal
  2. 2.Whether the appellant was given a notice (raised for the first time on second appeal)
  3. 3.Whether the learned Judge failed to consider the law in determining the issues of quantum
  4. 4.Whether the learned Judge failed to consider the direction that the appellant be allocated an alternative plot

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

Section 72 of the Civil Procedure Act confines the Court to questions of law; the Court must resist delving into matters of fact.

Reasoning

Section 72 permits second appeals only on grounds that the decision is contrary to law, failed to determine a material issue of law, or contains substantial procedural error. The Court endorsed Kenya Breweries Ltd v Godfrey Odoyo, adopting Chesoni Acting JA's formulation that an appellate court restricted to questions of law must accept findings of fact of the lower courts unless no reasonable tribunal could have reached them. The complaint that the Judge ignored the law on quantum and submissions was therefore examined only as an alleged error of law.

p. 3
02

Whether the first appellate Judge failed to consider the appellant's submissions

Holding

The allegation fails; the Judge's judgment extensively considered the parties' submissions and re-evaluated the evidence.

Reasoning

While an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence (Selle v Associated Motor Boat Co), an allegation that the first appellate court failed to do what the law enjoins is a matter of law properly interrogatable on second appeal. Here the judgment analysed and re-evaluated the evidence rather than reproducing it, which is all that is required, and the Court was unable to fault the Judge.

p. 4
03

Proof of damages for loss of business

Holding

The appellant did not adduce sufficient evidence to support the number of days claimed; damages must be proved, not merely pleaded.

Reasoning

The learned Judge correctly stated the principles that damages must be pleaded and supported by evidence. The claim for 112 days' lost income at Kshs. 4,000 per day was unsupported; the criminal cases were disposed of summarily, and the appellant made no attempt to justify the days in his plaint or to mitigate his loss. Following Idi Ayub Omari Shabani v City Council of Nairobi, particulars thrown at the head of the court do not discharge the burden of proof.

p. 4
04

Entitlement to compensation arising from the appellant's criminal culpability

Holding

A plaintiff who admits guilt to offences and is dealt with by law cannot claim compensation for consequences of that illegal conduct; ex turpi causa bars the claim.

Reasoning

The appellant pleaded guilty on two occasions and was discharged under section 35(1) of the Penal Code. Applying Holman v Johnson and Scott v Brown, Doering, Mcnab & Co, the Judge found no court should enforce obligations arising from illegal transactions. The Court of Appeal reiterated Lord Mansfield's dictum and held the appellant, having been found criminally culpable on his own plea, could not benefit from that wrongdoing.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and may not interfere with findings of fact of the courts below unless no reasonable tribunal could have reached them or the decision is perverse.
  • A plaintiff claiming damages must prove the damage pleaded; it is not enough to set out particulars and expect the court to award them.
  • No court will lend its aid to a party whose cause of action arises from an illegal act (ex turpi causa); a person found criminally culpable cannot benefit from that wrongdoing.
  • A first appellate court must analyse and re-evaluate the evidence, but is not required to write a judgment replicating that of the trial court.
  • An issue of fact not raised before the first appellate court cannot be entertained for the first time on second appeal.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs as the respondent did not appear

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Eldoret
High Court Civil Appeal No. 130 of 2015
Jurisdiction invoked
Section 72 of the Civil Procedure Act (second appeal confined to matters of law)

Relief refused

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Setting aside of the High Court judgment and reinstatement of the trial court's award of Kshs. 120,000 for loss of business

The appeal was found devoid of merit; the second appellate court is confined to matters of law, the Judge had properly considered the submissions and evidence, and the appellant, having been found criminally culpable on his own plea, could not benefit from his wrongdoing.

p. 4

Determination of the allegation that the appellant was not given a notice

It is an issue of fact on which this Court cannot venture on second appeal, and it was not raised before the first appellate court.

p. 4

Costs

No order as to costs, as the respondent did not appear

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
p. 3Scope of second appeal
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
p. 4Ex turpi causa / illegality
We have considered this appeal which we find it devoid of merit.
p. 4Outcome
We dismiss the same but with no order as to costs as the respondent did not appear.
p. 4Final orders and costs
It is so ordered.
p. 4Disposition

Issues in the judgment

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minor

The judgment cites Holman v Johnson with the year printed as '[17775]', an apparent typographical error for 1775.

material

The names of the actual parties to this appeal are not stated anywhere in the judgment as extracted; the parties are identified only as 'the appellant' and 'the respondent'.

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, "Njogu v County Government of Uasin Gishu (Civil Appeal 12 of 2020) [2025] KECA 1040 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (from High Court Civil Appeal No. 130 of 2015, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1040/eng@2025-06-05

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