Mbotaz v NIC Bank Ltd (Civil Appeal E018 of 2020) [2026] KECA 1291 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a vehicle owner's appeal against a bank, confirming unproven damages claims and new arguments fail on appeal.
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 by setting aside the judgment of the magistrate's court, which had declared the repossession of the vehicle illegal and awarded damages
- 2.Whether loss of user damages were specifically pleaded and strictly proved
- 3.Whether new issues (section 20 of the Consumer Protection Act, misrepresentation, coercion, violation of rights) could be raised for the first time in a second appeal
Key legal issues
#Scope of the second appeal
The court's mandate in a second appeal is confined to questions of law only, absent consideration of irrelevant matters, failure to consider relevant matters, or perversity.
The court reaffirmed its long-standing jurisprudence (Mina Mugiria, Kenya Breweries v Godfrey Odongo, Stanley Muriithi) that second appeals lie on matters of law only. Findings of fact by the first appellate court - here that the Hire Purchase Act did not apply and that the appellant defaulted - were not contested and could not be reopened.
Pleading and proof of special damages
Loss of user damages are in the nature of special damages and must be specifically pleaded and strictly proved; the magistrate's award of Kshs. 10,800,000 was properly set aside.
The plaint sought only 'loss of earnings' without quantification; neither the witness statement nor testimony stated the amount of loss of user. Citing David Bagine v Martin Bundi and Bonham Carter v Hyde Park Hotel, the court held that writing down particulars without proof is insufficient, so the first appellate court correctly set aside the award.
New issues on second appeal
Issues not raised before the first appellate court - section 20 of the Consumer Protection Act, misrepresentation, coercion and violation of rights - cannot be raised for the first time in a second appeal.
The court traced the record and found no trace of these issues before the first appellate court; counsel for the appellant conceded during plenary hearing that they had not been raised. Following George Owen Nandy v Ruth Watiri Kibe, the court declined to determine points not the subject of argument and decision below, absent illegality or lack of jurisdiction.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision is perverse.
- Special damages must not only be specifically pleaded but must also be strictly proved.
- A litigant is precluded from taking a completely new point of law for the first time on appeal; the Court of Appeal will not decide a point not argued and decided in the lower court unless the proceedings were illegal or made without jurisdiction.
Court orders
#- 1.Appeal 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 Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal limited to questions of law (Court of Appeal jurisdiction over appeals from the High Court, Constitution of Kenya, Article 164(1)(c) as implied; the judgment states the mandate in a second appeal is limited to questions of law)
Relief refused
#Setting aside the High Court judgment and reinstating the magistrate's judgment declaring repossession illegal and awarding damages
The appeal lacked merit; the first appellate court correctly found the Hire Purchase Act inapplicable, the appellant in default, and the damages unpleaded and unproved; new issues could not be raised on second appeal
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.
In the circumstances, we find that the appeal lacks merit and we hereby dismissed it with costs to the respondent.
This court's mandate in a second appeal is limited to considering questions of law only unless it is shown that the first appellate court considered matters it should not have considered or did not consider matters that it should have considered or that the decision is otherwise perverse.
The law is settled that special damages must not only be specifically pleaded, they must be strictly proved
In general a litigant is precluded from taking a completely new point of law for the first time on appeal.
Issues in the judgment
#The judgment refers to the appellant as 'The respondent' when discussing the pleadings on loss of user, apparently a typographical error.
The judgment inconsistently figures the contract amounts and the percentage of the purchase price paid (77% vs 54% stated by the respondent).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbotaz v NIC Bank Ltd (Civil Appeal E018 of 2020) [2026] KECA 1291 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1291/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.