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ELCDismissedELCA 13 of 2020· [2021] KEELC 4185 (KLR)

Johnson Maina t/a Destiny Transporters Limited v Simon Macharia Kairu & another [2021] KEELC 4185 (KLR)

Environment and Land Court
25 February 2021
2,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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. The 1st Respondent had sued the Appellant and the Municipal Council of Muranga for an injunction restraining interference with his business premises at Plot 82 Mukuyu and general damages for loss of business. The Appellant counterclaimed for loss of business of Kshs 36,000/= per day attributable to a temporary injunction obtained by the 1st Respondent and later vacated. The trial Court found neither businessman to blame, holding the 2nd Respondent responsible for issuing competing licences, but declined to order against it as the counterclaim was directed solely at the 1st Respondent. On appeal, the Court framed three issues: striking out the suit for the 1st Respondent's counsel's alleged lack of a practicing certificate, proof of the counterclaim, and costs. The Court held the objection was raised too late and unsupported by official Law Society of Kenya communication. Following Abson Motors and David Njuguna Ngotho, the Court held that loss of business income is a special damage requiring specific pleading and proof; the Appellant's cash sale acknowledgements had gaps and no independent documentary evidence was produced. The counterclaim failed for want of proof and the appeal was dismissed with each party bearing their own costs of the appeal and trial.

Key legal issues

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01

Whether the trial Court erred in failing to strike out the suit for lack of a valid practicing certificate by the 1st Respondent's Counsel

Holding

The trial Court did not err; the objection was raised too late (after close of hearing) and there was no official communication from the Law Society of Kenya to substantiate the allegation

Reasoning

The issue was first raised in the Appellant's written submissions after close of hearing. The 1st Respondent explained he had fully paid his practicing fees but the online LSK search engine was not updated. The only basis was an alleged online search; there was no official LSK communication. The trial Court rightly noted the issue was raised too late in the day and, consistent with the spirit of the Civil Procedure Rules against dismissal on technicalities, declined to strike out the suit.

p. 2
02

Whether the Appellant proved his counterclaim for loss of business income of Kshs 36,000/= per day

Holding

The counterclaim was not proved on a balance of probabilities; even though the trial Court dismissed it for a different reason, the end result stands because the claim fails for want of proof

Reasoning

The Appellant produced only copies of cash sale acknowledgements. The exhibit had gaps - the month preceding the interim orders was missing. No original books of account, bank statements, income statements, evidence of liabilities or stock taking were adduced. Following Abson Motors and David Njuguna Ngotho, loss of business income is a special damage that must be specifically pleaded and proven with independent documentary evidence.

p. 3
03

The correctness of the trial Court's treatment of the counterclaim as against the 2nd Respondent

Holding

The trial Court found neither businessman was to blame but the 2nd Respondent for issuing competing permits; it could not order the 2nd Respondent to bear the loss because the counterclaim was directed only at the 1st Respondent. The only error was failing to address the substantive issue of proof of the counterclaim

Reasoning

The Learned Magistrate found the 1st Respondent could not be held liable for loss caused by a properly issued Court order and blamed the 2nd Respondent for the mix-up in issuing competing licences. However, since the counterclaim was solely against the 1st Respondent, no orders could issue against the 2nd Respondent. The Appellate Court found the dismissal was correct but on want of proof, regardless of who the claim was raised against.

p. 3

Legal principles established

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  • Loss of business income is a special damage that must be specifically pleaded and proven, and a party cannot merely 'throw figures' at the Judge without independent documentary evidence
  • A suit should not be struck out on the ground of counsel's alleged lack of a practicing certificate where the objection is raised for the first time after close of hearing and no official communication from the Law Society of Kenya substantiates the allegation

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Each party to meet their costs of the Appeal and of the trial in the lower Court

Authorities

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Legislation

  • Civil Procedure RulesGeneral (overriding objective - cases ought not be dismissed on technicalities)

Cases cited (8)

  • Ongata Works Limited –vs- Tatu City Limited [2020] eKLR
    [2020] eKLR
  • Stockman Rozen Kenya Ltd –vs- Da Gama Rose Group of Companies Ltd [2009] eKLR
    [2009] eKLR
  • Douglas Kamau Ngotho –vs- Kinoiyo Company Limited & another [2018] eKLR
    [2018] eKLR
  • Barbra Georgina Khaemba –vs- Central Bank of Kenya Ltd & 2 others [2019] eKLR
    [2019] eKLR
  • Independent Electoral and Boundaries Commission & Anor. Vs. Stephen Mutinda Mule & 3 others [2014] eKLR
    [2014] eKLR
  • Abson Motors Limited –vs- Dominic B. Onyango Konditi [2018] eKLR
    [2018] eKLR
  • David Njuguna Ngotho –vs- Family Bank Limited & another [2018] eKLR
    [2018] eKLR
  • Bonham Carter vs Park Ltd. (1948) 647 T.L.R 177
    (1948) 647 T.L.R 177
On appeal from
Chief Magistrate's Court at Murang'a (SPMCC No 138 of 2010)
SPMCC No 138 of 2010
Jurisdiction invoked
First appeal to the Environment and Land Court against the judgment of the Principal Magistrate (appeal against the Judgment of Hon E J Osoro PM 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, "Johnson Maina t/a Destiny Transporters Limited v Simon Macharia Kairu & another [2021] KEELC 4185 (KLR)", Case Analysis (2021). ELCA 13 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4185/eng@2021-02-25

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