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ELCPartially AllowedELCA 7 of 2018· [2021] KEELC 4166 (KLR)

Municipal Council of Muranga v Simon Macharia Kairu & another [2021] KEELC 4166 (KLR)

Environment and Land Court
25 February 2021
JKJ.G. Kemei
1,962 words in judgment
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The bottom line

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Kenya's Environment and Land Court threw out a Kshs. 607,000 loss-of-income award because the hotelier's proof was just unsigned, undated spreadsheets.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Murang'a against the judgment of Hon E J Osoro PM in SPMCC No 138 of 2010 delivered on 8/2/2011. The 1st Respondent, a hotel operator on Plot 82 Mukuyu leased from the Appellant Municipal Council, sued the 2nd Respondent (a sand transporter) for interference with his business premises and later joined the Appellant as 2nd Defendant. Interlocutory judgment was entered against the Appellant for failing to file a defence. The trial Court found both businessmen were duly licensed by the Appellant and blamed the Council for issuing licences over the same business area, awarding damages for loss of income at Kshs. 1,000/= per day from 09/06/2010 until payment in full, a decretal sum of Kshs. 607,000/= as at 08/02/2012. On appeal, the sole issue was whether the 1st Respondent proved his claim for loss of income pleaded at Kshs. 3,000/= per day. The Court applied Abson Motors Ltd v Dominic B. Onyango Konditi and David Njuguna Ngotho v Family Bank Ltd, holding that loss of business income is a special damage that must be specifically pleaded and strictly proven. The only proof offered was a bundle of three undated and unsigned tabulations, which was insufficient under Sections 107 and 112 of the Evidence Act. The Court found the prayer open-ended and ambiguous and held the claim ripe for dismissal. The appeal was allowed; the judgment of the lower Court was set aside in its entirety, with each party bearing their own costs.

Key legal issues

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01

Proof of loss of business income

Holding

The 1st Respondent did not prove his claim for loss of income; the trial Court erred in awarding Kshs. 1,000/= per day based on undated and unsigned tabulations

Reasoning

The court applied authorities holding that loss of business income, being special damage, must be specifically pleaded and strictly proven with independent documentary evidence. The claimant's only proof was a bundle of three undated and unsigned tabulations (P. Ex. 5) projecting income, which fell short of the required standard under Sections 107 and 112 of the Evidence Act.

p. 3

Legal principles established

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  • Loss of business income is a special damage that must be specifically pleaded and proven
  • Whoever desires a court to give judgment as to a legal right or liability dependent on the existence of facts must prove those facts exist (Sections 107 and 112, Evidence Act)

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the lower Court set aside in its entirety
  3. 3.Each party to bear their costs

Authorities

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Legislation

  • Evidence ActSections 107 and 112

Cases cited (2)

  • Abson Motors Limited –vs- Dominic B. Onyango Konditi
    [2018] eKLR
  • David Njuguna Ngotho –vs- Family Bank Limited & another
    [2018] eKLR
On appeal from
Principal Magistrate's Court at Murang'a
SPMCC No 138 of 2010
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC Act (appeal against judgment of Principal Magistrate in SPMCC No 138 of 2010)

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, "Municipal Council of Muranga v Simon Macharia Kairu & another [2021] KEELC 4166 (KLR)", Case Analysis (2021). ELCA 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4166/eng@2021-02-25

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