National Social Security Fund Board of Trustees v Micro City Computers Limited (Civil Application E045 of 2024) [2025] KECA 1313 (KLR)
The bottom line
#Kenya's Court of Appeal has allowed NSSF to take a Kshs.112 million damages ruling to the Supreme Court, challenging how special damages are proved.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal to the Supreme Court raises matters of general public importance warranting certification and leave under Article 163(4)(b) of the Constitution
- 2.Whether the majority decision of the Court of Appeal departing from the settled principle that special damages must be specifically pleaded and strictly proved is a matter of general public importance
- 3.Whether the interplay between amendment of pleadings after tendering evidence and the right to a fair hearing under Articles 50 and 25 of the Constitution transcends the parties' dispute
- 4.Whether the award of anticipated/speculative profits for breach of contract is an issue on which the Supreme Court should pronounce itself
Key legal issues
#Whether the departure from the settled rule that special damages must be specifically pleaded and strictly proved is a matter of general public importance
Yes. The majority decision allowing special damages pleaded only after evidence was closed, without recalling the witness, placed the settled law on proof of special damages 'into upheaval', leaving litigants at a crossroads; the conflict must be settled by the Supreme Court.
The trial court had dismissed the special damages claim for want of evidence; the Court of Appeal majority reinstated it despite no evidence being tendered on the amended particulars. The Court found this inverts the proper sequence of pleading and proof, creates conflicting standards of proof of special damages against an avalanche of settled authority, and therefore unsettles a principle of broad application beyond the parties.
Whether the relationship between post-evidence amendment of pleadings, the doctrine of 'relation back', and the right to a fair hearing under Articles 50 and 25 of the Constitution is a matter of general public importance
Yes. Where a pleading is amended after evidence has been tendered, the opposing party was denied the opportunity to interrogate the new facts, raising a fundamental fair-hearing question worthy of the Supreme Court's consideration.
The amendment introducing particulars of special damages was effected after the respondent's case closed, and the applicant was not given an opportunity to test the new facts by cross-examination or recalling witnesses. The Court held this fundamental fair-hearing issue transcends the parties and intersects with the settled pleading-and-proof doctrine.
Whether the award of anticipated or speculative profits for breach of contract is a matter on which the Supreme Court should pronounce itself
Yes. The award of clearly speculative or anticipated profits in a breach of contract claim, where recoverable compensation is mainly for work done and nominal damages, transcends the parties and should be addressed by the Supreme Court.
The dispute was founded on breach of contract, and the trite measure of recovery is compensation for work already done and nominal damages. The Court of Appeal majority had awarded anticipated profits of Kshs.103,447,136 which the certification court considered clearly speculative, making this a second point of law of general importance.
Legal principles established
#- The Court of Appeal is the proper forum to certify whether an intended appeal to the Supreme Court raises a matter of general public importance, and certification is a filter process ensuring only matters transcending the parties' private interests proceed to the Supreme Court
- A matter may be certified as one of general public importance where the points of law transcend the parties' private interest, bear on the public interest, and where the Court of Appeal's own decision has unsettled settled law requiring the Supreme Court to settle it
Court orders
#- 1.The applicant's Notice of Motion dated 25th April 2024 is allowed: the Court certifies that the intended appeal raises matters of general public importance
- 2.Leave is granted to the applicant to appeal to the Supreme Court against the judgment of the Court of Appeal sitting in Mombasa in Civil Appeal No. 49 of 2020 as Consolidated with Civil Appeal No. 59 of 2020 delivered on 12th April 2024
- 3.Costs shall abide the decision of the Supreme Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal, Mombasa (decision under review for certification; underlying suit from High Court of Kenya at Mombasa, Civil Case No. 41 of 2017)
- Civil Appeal No. 49 of 2020 as Consolidated with Civil Appeal No. 59 of 2020
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification that a matter of general public importance is involved), Section 3A and 3B of the Appellate Jurisdiction Act and rule 33(1) of the Supreme Court Rules, 2020
Relief refused
#Costs of the application in favour of the applicant
The Court declined to award immediate costs, instead ordering that costs await the outcome of the intended appeal in the Supreme Court
Costs
Costs shall abide the decision of the Supreme Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly grant leave to the applicant to appeal to the Supreme Court against the Judgement of the Court of Appeal sitting in Mombasa in Civil Appeal No. 49 of 2020 as Consolidated with Civil Appeal No. 59 of 2020 [Gatembu, JA. dissenting]] delivered on 12th April 2024. Costs shall abide the decision of the Supreme Court.
Our findings are that the proposed points of law proposed for determination by the Supreme Court transcend the parties' private interest and are of considerable importance to the broader public.
The mandate of this Court with regard to certification is a filter process intended to ensure that the Supreme Court will only deal with matters of general public importance.
This confiicting decision should be addressed by the Supreme Court so that the law is settled once and for all.
The scenario presented by the decision of this Court ultimately goes against the well settled procedure and law; one of placing the horse before the cart.
Issues in the judgment
#The judgment is dated 18th July 2025 but describes the Court of Appeal majority judgment dated 12th April 2024 as precipitating 'the instant application' of 25th April 2024; the internal chronology of the appellate decision is not fully stated in the excerpt provided (only the majority/dissent split of the appeal is summarised, not its full reasoning), which limits verification of the referenced findings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Social Security Fund Board of Trustees v Micro City Computers Limited (Civil Application E045 of 2024) [2025] KECA 1313 (KLR)", Case Analysis (2025). Civil Application No. E038 of 2024 (arising from Civil Appeal No. 49 of 2020 as Consolidated with Civil Appeal No. 59 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1313/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.