Wetende v Luyali t/a Lumo Blues Guest House (Civil Appeal E057 of 2020) [2026] KECA 342 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed stolen-goods compensation failed because damages weren't specifically pleaded, but corrected the costs order against the guest.
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 first appellate court erred in law in holding that the trial magistrate awarded special damages when none had been specifically pleaded
- 2.Whether the first appellate court properly exercised its discretion in awarding costs to the respondent despite affirming the finding of negligence against him
Key legal issues
#Pleading and proof of special damages
The trial court improperly awarded a quantified sum as special damages where the plaint prayed only for general damages; parties are bound by their pleadings
Special damages must be specifically pleaded and strictly proved. Although receipts were produced showing the purchase price of the stolen items, the prayer remained for general damages, so the trial court converted an unpleaded claim into an award. The appellant could have amended his prayer during the hearing but did not, and the trial court had no mandate to rewrite the prayers on his behalf.
Discretion on costs
The first appellate court erred in principle by awarding costs to the respondent without giving reasons despite affirming the finding of negligence against him
Costs follow the event unless the court orders otherwise for good reason. An appellate court will not interfere with a discretionary award on costs unless it was exercised unjudicially or on wrong principles, or where no reasons are given and the order is wrong. Here the judgment disclosed no reasons for the departure, rendering the exercise of discretion questionable once liability was affirmed against the respondent.
Legal principles established
#- Special damages must be specifically pleaded and strictly proved, and a court may not rewrite a prayer for general damages into an award of special damages
- Second appeals to the Court of Appeal are confined to matters of law only
- Costs follow the event, but where a court departs from that principle it must give reasons; an unexplained departure from the principle in the face of a finding of fault is an error in principle
Court orders
#- 1.Appeal allowed only to the extent of setting aside the order on costs made by the first appellate court
- 2.Substituted order that each party shall bear his own costs in this Court as well as in the first appellate court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Civil Appeal No. 12 of 2018
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeals lie on matters of law only
Relief refused
#Setting aside the first appellate court's judgment and substituting a finding in the appellant's favour
The Court found no error of law in the conclusion that special damages not pleaded could not be awarded; the dismissal of the claim was proper
Costs
Each party shall bear his own costs in this Court as well as in the first appellate 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.
It is trite law that special damages must not only be pleaded but must also be strictly proved. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.
Accordingly, the appeal succeeds only to the extent of setting aside the order on costs. We substitute therefor an order that each party shall bear his own costs in this Court as well as in the first appellate court.
In a second appeal, the Court of Appeal confines itself to matters of law only.
The appellant had the opportunity during the hearing to amend the prayer so as to accord with the evidence, which opportunity he took no advantage of. He can only blame himself for the mishap.
Issues in the judgment
#The judgment contains typographical errors ('afiront' for 'affront', 'suficiently', 'afiirmed', 'afirmed'), suggesting OCR corruption in the copy supplied
The judgment does not identify which judge authored it; it appears as a single joint judgment signed by all three judges without a named author
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wetende v Luyali t/a Lumo Blues Guest House (Civil Appeal E057 of 2020) [2026] KECA 342 (KLR)", Case Analysis (2026). Second Appeal from Kakamega Civil Appeal No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/342/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.