Johnson Maina t/a Destiny Transporters Limited v Simon Macharia Kairu & another [2021] KEELC 4185 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#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
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
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.
Whether the Appellant proved his counterclaim for loss of business income of Kshs 36,000/= per day
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
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.
The correctness of the trial Court's treatment of the counterclaim as against the 2nd Respondent
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
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.
Legal principles established
#- 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
#- 1.The Appeal is dismissed
- 2.Each party to meet their costs of the Appeal and of the trial in the lower Court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.