Francis v Mash East Africa Ltd (Civil Appeal E078 of 2023) [2026] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can only win a loss of income claim if you keep and produce records proving exactly what you earned.
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 learned Judge erred in holding that the appellant had not proved his claim for loss of user to the required standard
Key legal issues
#Whether loss of user is general or special damages and the standard of proof applicable
Loss of user is special damage which must be specifically pleaded with particularity and strictly proved; it cannot be equated to general damages or awarded on guesswork.
The Court endorsed the long-standing line of authority beginning with David Bagine v Martin Bundi, holding that loss of user is what the claimant suffers specifically and cannot be assessed in the standard 'doing the best I can' phrase applied to general damages. The claimant must demonstrate by factual evidence, with specificity, the basis of the figure claimed, and failure by the defendant to cross-examine does not relieve the claimant of that burden of strict proof.
Whether the learned Judge erred in upholding the trial court's rejection of the Kshs. 67,500 loss-of-user claim
No error was shown; the appellant admitted he had no records of his alleged income, and the claim rested on his word alone.
The appellant conceded on cross-examination that he kept no record of his daily earnings. The Court distinguished Samuel Kariuki Nyangoti, where the claimant had given concrete evidence of routes, trips per day, earnings per trip and expenses, and Mitchell Cotts, where the amount had been specifically admitted by the respondent. Neither case supported an award on mere presumption.
The scope of the Court's jurisdiction on a second appeal
The Court's mandate on a second appeal is limited to points of law under section 72(1) of the Civil Procedure Act.
Relying on Stanley N. Muriithi v Bernard Munene Ithiga and Kenya Breweries Ltd v Godfrey Odoyo, the Court confined itself to matters of law, resisting invitations by counsel to revisit evidential matters of fact, which fell outside its remit on second appeal.
Legal principles established
#- Damages claimed under the title 'loss of user' are special damages which must be specifically pleaded with particularity and strictly proved; they cannot be awarded as general damages on the basis of guesswork or mere presumption.
- Failure to cross-examine a claimant on a loss-of-user claim does not amount to an admission and does not shift or negate the claimant's burden of strict proof.
- A claimant must demonstrate by factual evidence, and with specificity, the justification for loss-of-user damages; it is not enough to make a sweeping statement of daily or periodic income.
- On a second appeal, the Court of Appeal's mandate is confined to matters of law and it will not interfere with concurrent findings of fact.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Appeal No. E034 of 2020
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal lying to the Court of Appeal on matters of law)
Relief refused
#Judgment for Kshs. 67,500 as loss of user of the tuktuk
Loss of user is special damage which must be specifically pleaded with particularity and strictly proved; the appellant admitted he had no records of his income and the claim was not strictly proved
Costs of the appeal and of the appeal in the High Court
The appeal failed and was dismissed with costs to the respondent
Costs
Appeal dismissed with costs to the respondent.
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 find that the appeal fails and is hereby dismissed with costs. Orders accordingly.
the immutable principle at common law that a claim for special damages, as was the case here, need to be specifically pleaded with particularity and strictly proved.
Neither does the respondent's failure to cross-examine the appellant's testimony on loss of user amount to an admission or otherwise shift or negate the appellant's burden of strict proof of loss of user
it is not enough to make a sweeping statement that this or that figure was the daily or periodic income earned from the business, and that it was lost due to the misfortune complained of.
We take to mind the immutable principle that special damages must be specifically pleaded and strictly proved with particularity and certainty as they represent actual, quantifiable, out-of-pocket expenses, not foreseeable consequences that may be inferred from the incident
Issues in the judgment
#The appellant's memorandum of appeal is dated 25th May 2023 and counsel's supporting submissions are dated 26th June 2023, yet the respondent's submissions are dated 28th May 2025, an unexplained delay of nearly two years not addressed in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis v Mash East Africa Ltd (Civil Appeal E078 of 2023) [2026] KECA 45 (KLR)", Case Analysis (2026). Civil Appeal (as numbered at Mombasa; memorandum of appeal dated 25th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/45/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.