Mecca & another (Suing on Behalf of the Estate of Elizabeth Nasimiyu Nyongesa) v County Government of Trans Nzoia (Environment and Land Case E021 of 2023) [2026] KEELC 1747 (KLR)

summary of reinstatement costs and QS fees as per the final fee note on page 78 of the further plaintifis' list of documents dated 5/2/2025. c. Computing and awarding of rental income between 1/1/2024 and the date of the award, which, though noted in paragraph No. 50 in the judgment, the court omitted to compute and award. (d) Varying the loss of income awarded in paragraph 215 from Kshs. 1,255,500/= to include the loss of rental income during construction (12 months) of Kshs. 1,674,000/= as detailed in the final reinstatement costs for a total of Kshs.2,929,500/=, in addition to the amount computed under Order 3(c) above. 4. In a supporting afidavit of AnnMarie Mtonyi Mecca sworn on 1/2/2025, on behalf of her co-plaintifi, the plaintifis depose that though the court awarded the claim for special damages, the computation and award of the special damages was not in line with the priced Bill of Quantities, and the attendant final summary of the reinstatement costs from the quantity surveyor, PW1 the annexures AMM-(3) and (4) in the further amended plaint dated 12/6/2025 and further list of documents dated 5/2/2025. 5. The plaintifis depose that though at paragraphs 67, 68, and 81 of the judgment, it was noted that the defendant failed to call witnesses, making the plaintifis’’ case stand unchallenged, and that on paragraph 204, the court found special damages as pleaded, proved, or unchallenged by any expert evidence, leading to allowing them in paragraph 215; in paragraph 215, it is proceed to allow: a. Kshs. 21,650,000/- from an earlier valuer’s report of 19/4/2023 as per PW2, and not based on the vacant one of January 2025 of PW1 for Kshs. 73,894,227.20. b. Kshs. 211,695/-, only represented the basic professional fees, VAT on professional fees, cost of valuation report and search, contingency sum, and the quantity surveyor’s fees, all amounting to Kshs. 19,069,290.53. c. Loss of rental income of Kshs.1,674,000/- for 12 months. (d) Loss of rent income between 1/1/2024 and the date of the award. 6. The plaintifis depose that all these figures were captured in the PW1 QS final summary as an item for the court’s determination. Falling under the ambit of the stop rule, the court, in essence, relied on the wrong expert figure. The plaintifis depose that the corrections sought are purely arithmetical and necessary to correctly refiect the proven and uncontroverted special damages as found by the court on paragraph 204 of the judgment. 7. The initial plaintifi approached the court through a plaint dated 18/4/2023. She sought a permanent injunction and, in the alternative, special damages or compensation of the market value or price of the suit property. The plaintifi had not pleaded particulars of any special damages. Later, the initial plaintifi filed a list of documents dated 4/4/2024, introducing P. Exhibit No. (7), a valuation report, P. Exhibit No. 8(a), fee note receipt, P. Exhibit No. 8(b). thereafter the plaintifi filed an amended plaint dated 4/4/2024 introducing paragraphs 13-26, prayers (b), (c), (d), (e), (f), and (g) and an alternative prayer to prayer (f) seeking Kshs.118,535,115/- damages or compensation of the current market value and price of the suit property, including the buildings and structures, and loss of income sufiered totaling Kshs.140,709,195/-. 8. From the Case Tracking System (CTS), an amended electronically uploaded on 5/4/2024 with no legal repayments made plaint appears. Other than the court stamp of 8/4/2024, there is no evidence that the initial plaintifi paid filing fees for the added reliefs generally and in particular, special damages of Kshs.118,535,195/- or the alternative prayer of Kshs. 140,709,195/-, additionally, the particulars of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 2

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special damages as pleaded in paragraph 22 of the amended plaint did not capture the figures, dates, and particulars as those arrived at based on the expert report of either a quantity surveyor, valuer, or any other qualified oficer in the field. 9. Thereafter, the initial plaintifi filed a further list of documents dated 6/2/2025. It is through this list that the initial plaintifi introduced some of the proposed development plan, approved development plan, current bill of quantity for January 2025, summary of relevant costs, proforma invoice receipts dated 5/2/2025, valuation report, derived monthly rental income dated 17/4/2023, valuation report dated 19/4/2023, valuation report receipt, all produced as P. Exhibit No. (1), (2), (3), (4), (5), PMFI(6), and (7). All those exhibits from the CTS were not paid for. It is from the said pleadings that the plaintifi filed a list of issues dated 12/2/2025. 10. By an application dated 3/5/2025, the plaintifi sought to amend the plaintifi’s further after the initial plaintifi passed on. Upon the leave being granted, a further amended plaint dated 12/6/2025 was uploaded in the CTS system. There is no evidence that the one appearing in the CTS was ever paid for generally. 11. In the application for leave and the leave granted, the only contemplated issue was to bring on board the legal representatives of the deceased plaintifi as at the time the suit was part-heard. From the further amended plaint, the plaintifis, without leave of court, made changes to paragraph 22 of the amended plaint dated 4/4/2024, added Clause (F), amended Kshs. 118,535,195/- to Kshs. 118,635,195/- in paragraph 22, and also in the reliefs sought for special damages. 12. More importantly, there is no evidence that after the changes, legal fees for the added reliefs, including special damages, were paid for going by electronically uploaded further amended plaint on 19/6/2025. Additionally, the plaintifis, after the changes were made, did not seek to recall the expert witnesses to testify as to special damages in view of the changes to the pleadings. 13. The defendant in the amended defence and counterclaim dated 30/6/2025 at paragraph 14 had put the plaintifis to strict proof as regards paragraphs 21 and 22 of the further amended plaint on special damages. Equally, in paragraph 17, the development approvals of the suit property had been refuted. 14. Having set the nature of the pleadings, the court is asked to invoke Section 99 of the Civil Procedure Act and find that there were patent, accidental slips, errors, on omission on special damages which have led to the plaintifis being grossly undercompensated as regards special damages requiring corrections. 15. The parameters of the doctrine of the slip rule were discussed in Waweru & Others -vs- Attorney General & Others Petition Appl. No. 26 of 2019 [2023] KESC [KLR] (24th April 2023) (Ruling). After the judgment was delivered, the court was blamed for not awarding interest on the damages awarded. The court had been asked to review its judgment and amend it to include an award of damages. The court said that the scope of the slip rule is limited to correcting errors that are apparent on the face of the judgment or order of the court, which, if corrected, will not generate any controversy or change the substance of the judgment or alter the clear intention of the court, since to do otherwise, would be the court sitting on appeal of its own judgment as to substantially alter it. 16. In Margaret Nabuin Lomatong -vs- Sylvia Abei Kosiae & Another [2026] KEELC 511 [KLR] (4th February 2026) (Ruling), that by its very nature, the slip rule permits a court of law to correct its errors that are apparent on the face of the record, which are so obvious that their correction cannot generate any controversy, would not change the substance of the judgment or alter the clear intention of the court or amount to sitting on appeal of its judgment or substantially or extensively alter it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 3

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17. In Hussein Khalid & Others -vs- Attorney General & Others SCOK Appl. No 32 of 2019, the court said that the slip rule power should be used sparingly and exceptionally. As the court pronounces its judgment, it becomes functus oficio. 18. In William Musembi & Others -vs- Moi Educational Centre & Others Appl. No. E019 of 2021, the court said that while it can correct errors arising from any accidental slips or omissions, or vary the judgment to give efiect to its intention, or steer a judgment towards its logical or clerical, perfection, the error must relate to an oversight or clerical error of computing for the ends of justice to be met or to prevent abuse of the court process. See also Karanja -vs- Murigi [2025] KECA 517 [KLR] (21st March 2025) (Judgment). 19. In Raniga -vs- Jivalji & Another [1965] EA 100, the court said that it will only apply the slip rule where it is fully satisfied that it was giving efiect to the intention of the court at the time the judgment was given, or in the case of a matter which was overlooked, or where it is satisfied beyond doubt as to the order it would have made had the matter been brought to its attention. 20. What the plaintifis submit to have been omitted by the court in its judgment falls under special damages. The law is that special damages must be specifically pleaded and strictly proved, as held in Hahn -vs- Singh [1985] KECA 129 [KLR]. A party seeking special damages must demonstrate that they actually made payments or sufiered loss on injury or damage before compensation. Actual receipt is what the law requires. An invoice or a proforma invoice sent to a party is not proof of payment. A claim of loss of user refers to compensation. 21. In David Bagine -vs- Martin Bundi [1997] eKLR, the court said that loss of user is what a claimant specifically sufiers and has to be strictly proved. The court cited Mariam Maghema Ali -vs- Jackson M. Nyambu T/A Sisera Store Civil Appeal No. 5 of 1990 and Idi Ayub Sahbani -vs- City Council of Nairobi [1982-88] IKAR 68, the special damages, in addition to being pleaded, must be strictly proved. 22. In Bonham Carter -vs- Hyde Park Hotel [1948] 64 TLR 177, the court said that to prove damage, it is not enough to write down the particulars and throw them at the head of the court without proving them. 23. In Mwige -vs- Kiguta & Others [2015] KECA 334 [KLR], the court said that a witness must produce the document, tender it in evidence, and lay a foundation of its authenticity and relevance to the facts in the case. The court said that admissibility and proof of a document are determined at the time of production of the document as an exhibit. The court said that a document becomes proved, not proved or disapproved, when the court applies its judicial mind to determine the relevance and veracity of its contents, not alone, but while considering all facts and evidence on record. 24. Starting with the claim of reconstruction, reinstatement of Kshs.73,894,227.20, P. Exhibit No. (3), a summary of reinstatement costs is headed proposed development or priced bill of quantities. It is not based on any approved building plans, drawings, or construction contract between the plaintifis and a contractor, and or agreements for construction fees, charges, or otherwise, per the established procedures in building construction works. 25. A bill of quantities is defined in Lexis Nexis as one that lists out the items of work, labour, and materials to complete works. 26. It has to be pleaded and proved. See Tetu Housing Co-operative Society Ltd -vs- Peter Njoroge Ngahu Civil Appeal No. 243 of 2008. The Architects, quantity surveyors, and the project managers were not called to produce the documents. Their curriculum vitae, fees, expertise, and scope of works, period of works, and agreements were not attached to the exhibits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 4

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27. Evidence of payment of professional fees of Kshs.11,084,134.08 was not before the court, costs of construction, and finance of Kshs. 7,281,009.31 was not substantiated. Loss of rental income for nine and 12 months was not substantiated with landlord records, rent book, bank statements, and allied documents. 28. Contingency sum of Kshs. 6 million was not authenticated or verified by PW1. The same case applies to VAT at 16%, for Kshs. 16,347,844.33. PMFI-(6) other than being marked was not produced as an exhibit to substantiate the cost of the materials in the proposed reinstatement costs produced as P. Exhibit No. (3). As held in Mwige -vs- Kiguta (supra), a document marked for identification does not count as an exhibit. A fee note is also not a payment receipt. 29. As regards loss of future earnings from 1/1/2024 till the end of the lease captured in paragraph 22(d) of the further amended plaint for 57 years, making a total of Kshs.95,4189,000/-. 30. The court discounted the figure, given that it had declared the plaintifis as owners of the land. The subtraction of that figure from Kshs. 118,635,195/= as pleaded to be the total leaves the court with the figure that it awarded in the judgment. From the plaintifis’ own pleadings, paragraph 22, page 6 of the further amended plaint, did not capture Kshs. 73,894,227.20. 31. It is a trite law that parties are bound by their pleadings and issues for the court’s determination that arise from the pleadings. In Raila Amolo Odinga & Another -vs- IEBC & Others [2017] eKLR, the court said that a party cannot travel beyond its pleadings. In Methodist Church of Kenya -vs- Fugicha [2019] 59 [KLR] (23rd January 2019) (Judgment), the court said that referring to issues through oral arguments did not account for formal pleadings in response to those issues. The court said that when a party seeks redress from the court, he ought to have the matter properly instituted, issues canvased and determined competently. 32. In Mohamed Fugicha -vs- Methodist Church of Kenya [2016] eKLR, the court held that the primary purpose of pleadings is to communicate with an appreciable degree of certainty and clarity the complaint that a pleader brings before the court and to serve as suficient notice to the party impleaded to enable him to know what case to answer. 33. Order 2 Rule 2 of the Civil Procedure Rules provides that a pleading must contain material facts and not evidence. In CMC Aviation Ltd -vs- Kenya Airways Ltd (Cruisair Ltd ) [1978 [1978] KLR 103, the court said that evidence denotes the means by which the alleged matter of fact, the trust of which is submitted for investigation, is established. 34. The plaintifis are mistaken that what PW1 said is what the amended plaint pleaded. PW1 was just their expert witness who said with respect to P. Exhibit No. (3) needed to be pleaded as a matter of fact in the body of the plaint right from inception to the conclusion of the evidence. 35. In an adversarial system, it is the parties who set the agenda of the trial by their pleadings. A court cannot grant a relief that is not pleaded and not proven. In Attorney General -vs- Okoiti & Others [2025] KECA 309 [KLR] (21st February 2025) (Judgment), the court held that a party, through pleadings, puts forward to the court its entire case to allow the court and the other side to answer to the same. Through pleadings, a party sets forth the facts upon which he seeks legal relief or challenges a claim, but not the evidence. 36. In Salim Said Mtomekela vs Mohamed Abdallah Mohamed (Civil Appeal No 149 of 2019) 2023 TZCA 15 (15 February 2023), the court said that any evidence produced by any of the parties that is not supportive or is not in variance with what is pleaded must be ignored. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 5

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37. In John Mungai Murango & another -vs- Jeremiah Kiarie Mukoma [2015] eKLR, the court held that a party cannot be allowed to recite from its pleadings without due amendments, to ensure that litigation is conducted in a framework that will guarantee fair play without prolixity and needless escalation of litigation costs. The same position was taken in IEBC & Others -vs- Mutinda Mule [2014] eKLR, that any evidence led that does not support the averments in the pleadings is to be disregarded and goes to no issue. 38. Turning to paragraph 204 of the judgment, the plaintifis are being selective. The following line states that expert evidence must also be considered alongside other evidence and tested against known facts. Allowing the claim for special damages at paragraph 205 of the judgment did not mean that the court had to ignore the pleadings, the authenticity, relevance, credibility, and admissibility of the exhibits tendered. 39. The court had to strictly scrutinize all the evidence and pleadings in context. It was not out of error, mistake, or omission as the plaintifis want the court to believe. The court looked at paragraph 22(a), (b), (c), (d), (e), (f), and (g) of the further amended plaint against prayers No. (a), (b), (c), (d), (e), (f), (g), and (h). It allowed prayers. (a), (b), (c), (d), and (f) only to the extent pleaded and proved, with tangible and cogent evidence. A relief of loss of further earnings was dismissed. Once it was removed as per paragraph No. 22 of the further amended plaint, the only other items are (A),(B), (C), (D), (E), (F), and (G), since special damages must be specifically pleaded and proved. 40. Prayer No. (j) was pleaded as an alternative to prayer No. (f). In a prayer pleaded in the alternative, a court must choose between the main prayer and the alternative prayer and give reasons. It cannot give a party both prayers. Once the plaintifis were decreed the land and issued a permanent injunction, it goes without saying that they were not entitled to the loss of future income for 57 years since the land shall remain theirs. 41. Needless to say, I have already held that a court cannot whimsically award relief outside those pleaded and proved. See in Caltex Oil (K) Ltd -vs- Rono Ltd [2016] eKLR. It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintifi’s claim. Pleadings must be deployed to serve their function, namely to inform the other party and the court with suficient clarity what their case is, and for the issues for determination by the court to be clear. 42. In General & Finance Facilities Ltd -vs- Cooks Bar (Romford) Ltd [1963] 2 ALLER 314, Lord Diplock said that remedies in a claim founded on tort of detinue take the form of the value of the chattel as assessed for its detention or the return of the chattel or its value, as from the date of judgment and damages. 43. In Sande -vs- KCC [1992] LLR 314, the court held that a claim for award of damages on loss of profits had to be specifically pleaded and proved. The court gave the land back to the plaintifis. It issued a permanent injunction. On top of that, it granted Kshs.21,650,000/- for the demolition as per the valuation report, Kshs. 1,255,500/- for loss of rental income for the period pleaded, cost of fencing valuation, etc., general damages for trespass, aggravated damages, willful and malicious destruction, aggravated exemplary and punitive damages, all totaling to Kshs. 30,000,000/-. To expect the court to grant more than that would be far-fetched. 44. The upshot is that I find the application dated 9/12/2025 lacking merit. It is dismissed with no order as to costs. 45. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 6

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RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF MARCH 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis No appearance https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1747/eng@2026-03-24 7

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