John Kariuki Mwangi & 1 other v Joel Ochieng Olondo

vehicles that were under his custody for repair and refurbishment. The damage caused upon the Respondent’s Motor Vehicle and the eleven motor vehicles collectively valued at a cumulative amount of Kshs.18,700,000/=, particulars thereof set out at Paragraph 8 of the Plaint dated 19th August, 2022. 4. According to the Respondent, he is entitled to his right to ownership of property while the two Defendants jointly and severally owed him a duty of care to undertake a sage and sound construction process on their parcel of land, erecting a sound structure on approved ground for such building and by adhering to all the relevant laws and regulations and measures that guarantee structural integrity and protects the Respondent’s property from falling debris, rumble of materials from the aforesaid construction sites. 5. Further, it is the Respondents contention that the defendants jointly and or severally negligently breached his right, a result of which he suffered loss and damage by virtue of the destroyed property and assets. The particulars are set out at Paragraph 9 of the Plaint while the particulars of special damages incurred by the Respondent are particularised at Paragraph 9 of the Plaint. 6. The Appellants filed a statement of defence dated 20th September, 2022 in which they denied the Plaintiff’s allegations in their entirety save for confirming that they were indeed carrying out construction activities on their parcel of land as indicated at Paragraph 5 of the Plaint. They assert that there is no garage adjacent to their property and the collapse of the building was not due to any fault on their part but was instead caused by the Respondent’s own negligence. According to the Appellants, the Respondent undertook reckless deep excavation works on the adjoining property, which compromised the structural strength and stability of certain columns and bases of the building, positioned along the boundary and this is what led to its collapse. On this basis, the Appellants denied liability for the special damages claimed and urged the court to dismiss the suit with costs. 7. Upon confirming compliance of pre-trial directions, the matter proceeded for hearing on 5th April, 2023 whereby five (5) out of then (10) witnesses testified had their witness statements and Plaintiff’s bundle of documents dated 19th August, 2022 adopted as the Plaintiffs evidence and Exhibits No.1 to 4. The Plaintiff’s Exhibit 13 was produced by an expert witness from the National Construction Authority (NCS) and adopted as such on 20th April, 2023, an expert witness testified and produced the Defendant’s list of bundle of documents dated 11th January, 2023 which were adopted as evidence in support of Defendant’s case. At the conclusion, each side having closed their respected cases, and filed their respective written submissions, the trial court evaluated the evidence presented by each side and delivered it Judgment where it found in favour of the PlaintiffRespondent. The court then proceeded to enter judgment against the Defendant/Appellants for the sum of Kshs.5,941,957/= together with costs of the suit and interest thereon at court’s rates. The Appeal 8. Aggrieved by the said decision, the Appellants filed a Memorandum of Appeal dated 14th August , 2023 in which they have cited eleven (11) grounds of Appeal as follows:a. That the Learned Magistrate erred in law and in fact by holding that the Appellants were liable for the collapse of the building into the Respondent’s garage premises. b. That the Learned Magistrate erred in law and in fact by relying on fake receipts and other documents in support of the special damages awarded to the Respondent. c. That the Learned Magistrate erred in law and in fact by awarding special damages as prayed in the Respondent’s plaint, while some of the losses were incurred as a result of the Respondent’s failure to mitigate the losses resulting from the collapse of the building. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 2

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d. That the Learned Magistrate erred in law and in fact by failing to appreciate and consider the Appellants contention of deducting the residual value of the damaged items from the computation of the special damages. e. That the Learned Magistrate erred in law and in fact by relying on receipts of KES 1,381,575 which did not have a name or any indication of whom they were issued to in support of the Respondent’s claim. f. That the Learned Magistrate erred in law and in fact by relying on the NCA report which found the Appellants culpable of the collapse while the said NCA report purported to be based on a qualitative analysis from another report allegedly from the Ministry of Transport, Infrastructure, Public Works, Housing & Urban Development which was not produced for cross-examination and review by the Appellants. g. That the Learned Magistrate erred in law and in fact by awarding special damages in relation to the construction of the alleged perimeter wall and staircase amounting to KES 1,593,156 which was not proved by way of receipts or other documents. h. That the Learned Magistrate erred in law and in fact by allowing special damages amounting to KES 8,402,000 in relation to labour which no evidence was tendered in support of the amount. i. That the Learned Magistrate erred in law and in fact by awarding special damages in relation to repair works of KES 770,000 which were not proved as there was no evidence of job cards or any other related documents that was produced before court in support of the claim. j. That the Learned Magistrate erred in law and in fact by awarding special damages to the Respondent in relation to workshop equipment and steel gates which no evidence was tendered before court, of the destruction of these equipment such as the wreckage or pictures of the wreckage. k. That the Learned Magistrate erred in law and in fact by failing to take into account the residual value of the items destroyed such as steel gates and other metallic equipment. 9. The appeal was admitted for hearing on 24th April, 2025 and parties directed to proceed with its disposal by way of written submissions. In their submissions dated 11th June 2024, the Appellants identified and placed before the Court, four (4) issues for determination: - 10. a. Whether the trial court erred by admitting and relying solely on the report by the National Construction Authority (NCA) to impute negligence on the Appellants. b. Whether the Trial Court erred in finding the Appellants liable for the collapse of the building. c. Whether the Respondent proved the loss allegedly incurred for the Trial court to award special damages amounting to KES 5,941,957.00. In the discharge of my appellate mandate, this Court is guided by the established principle which was articulated by the Court of Appeal in the case of Abok James Odera T/A A. J. Odera & Associates –vsJohn Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, that a first appellate court is under a duty to revisit, re-evaluate and re-analyse the evidence that was adduced before the trial court and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing or hearing these witnesses testify. 11. On the other hand, in their written submissions dated 29th June, 2024, the Respondent addressed the grounds of appeal under two issues; that is: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 3

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a. The propriety and evidential value of the National Construction Authority report; and, b. Whether the award of special damages by the trial court was properly grounded in evidence. Analysis and Determination 12. Having carefully read through the evidence that was produced in this case, the court has also considered the arguments advanced in the submissions of both parties, the Court is of the view that the appeal turns on two central issues for determination, which are:a. Whether the trial Court erred in law and fact in finding the Appellants liable for the collapse of the building and the resultant loss; and b. Whether the award of special damages made by the trial court was justified and supported by credible evidence. 13. On whether the trial court erred in finding the Appellants liable for the loss, it is the Appellants contend that the learned trial magistrate erred in law and fact by placing exclusive reliance on the report prepared by the National Construction Authority (NCA) as the basis for finding them negligent. They averred that beyond this report, the Respondent produced no other independent, corroborative, or expert evidence to establish negligence on their part to the requisite legal threshold. They further assert that the report itself was fundamentally defective, procedurally unsound, and was not sufficient evidence to support the Claim. In particular, they posit that although the National Construction Authority (NCA) investigators allegedly collected samples from the collapsed structure for analysis, the final report did not contain the results of such laboratory testing hence making the report inconclusive. 14. The Appellants also submit that they exercised due diligence in the construction process by periodically conducting Schmidt hammer tests on the structural columns to assess concrete strength, and that such proactive assessments objectively demonstrate professional care and competence. 15. The Appellants further argue that the National Construction Authority (NCA) report was never served upon them as required under the law, thereby denying them the opportunity to challenge its contents, defend themselves, or seek statutory recourse. It is their position that because they were not furnished with the report, they were deprived of the right, as conferred under Section 26(4) and (5) of the National Construction Authority Act, to lodge an appeal before the National Construction Authority Appeals Board. They therefore contend that reliance on the such report infringed their constitutional right to a fair hearing under Article 50 of the Constitution of Kenya hence it ought to have been excluded by the trial Court. 16. The Appellants additionally contend that the real cause of the collapse was well articulated in the expert report of Engineer Titus Wakeru (DW2), who attributed the collapse of the building to excavation works that were being carried out on an adjoining parcel of land near Bases 4, 5D, and 4D. According to that report, the deep excavation, which was subsequently backfilled with red soil and clay, destabilized the footing of the building, leading to differential settlement exacerbated by water percolation from a washing area located on the neighboring property. The Appellants note that the Respondent did not dispute having undertaken minor renovation works on his garage, including excavation, and therefore maintain that the collapse was not attributable to their acts or omissions but to the Respondent’s own activities. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 4

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17. The Appellants go on to argue that the National Construction Authority (NCA) report was not only unreliable but was also compromised in credibility. They point out that the report recommended the commencement of criminal proceedings against them, yet such charges were eventually instituted and later withdrawn. According to the Appellants, the withdrawal of the criminal case demonstrates that the findings of the NCA were unsubstantiated, defective, and incapable of supporting civil liability. They therefore submit that the learned trial magistrate fell into error by attributing liability to them on the basis of an inconclusive and procedurally questionable report, when the true cause of the collapse lay in excavation works conducted by the Respondent. 18. In response, the Respondent contends that PW6, an officer of the National Construction Authority, properly produced the report as Exhibit PEXB-13 and that the report expressly informed the parties of their right to appeal to the National Construction Authority (NCA) Appeals Board within thirty (30) days of its issuance. The Respondent further states that the Appellants neither filed such an appeal nor sought leave to appeal out of time. Therefore, it is asserted that the Appellants cannot be heard at the appellate stage to challenge the validity or procedural propriety of a report whose findings they never contested before the competent forum. The Respondent further maintains that the trial court did not rely solely on the National Construction Authority (NCA) report but evaluated the totality of the evidence presented by both sides before making its determination, and therefore the Appellants’ challenge on the reliance on the report is unfounded. 19. A reading of the trial court’s Judgment shows that considerable weight was placed on the testimony of PW6, Meshack Oduor Otieno, an Assistant Manager of the National Construction Authority, and DW2, Engineer Titus Wakeru, the Appellants’ witness. The trial court considered both witnesses to be experts in the construction field and analyzed their evidence accordingly to reach its determination. According to PW6, the National Construction Authority (NCA) investigations revealed several breaches of statutory and regulatory obligations, including:a. That the developer lacked the requisite compliance certificates prescribed under Section 5(2) (i) of the National Construction Authority Act and Regulation 17(1) of the NCA Regulations, 2014; b. That the Appellants continued construction despite the suspension notice issued under Reference Number 073829, thereby contravening Section 23(3)(c) of the Act; and c. That the project proceeded without adequate supervision by accredited and registered construction professionals, save only for the structural engineer, which was contrary to the mandatory standards expected for a project of that scale. 20. Having carefully re-evaluated and reconsidered the evidence adduced before the trial court, and the parties’ rival submissions, this Court is guided by the well-settled principle that an appellate court ought not interfere with findings of fact by a trial court unless it is demonstrated that such findings were based on no evidence or were founded on a misapprehension of the evidence, or that the court acted on wrong principles of law. In the present appeal, the burden rests upon the Appellants to show that the trial court erred in its appreciation and evaluation of the evidence in a manner warranting the intervention by this Court. 21. Having subjected the record to fresh analysis, this Court finds itself in agreement with the trial court’s conclusion that the National Construction Authority’s (NCA) report was a pivotal and probative piece of evidence in determining the issue of liability. The report was produced through PW6, a competent officer of the Authority, and its conclusions were supported by inspection processes undertaken pursuant to the National Construction Authority Act. It is this Court’s observation that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 5

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findings contained therein, pointed to non-compliance with the mandatory construction standards and regulatory requirements governing building works in Kenya by the Appellate. In this court’s view, adherence to National Construction Authority (NCA) directives and or approvals is not a mere administrative formality. They are statutory mechanisms designed to safeguard the integrity of the structure, human safety, and the interests of adjoining landowners. The discovery that the building under construction had been marked with an “X” suspension notice, signifying prohibition from further works, was a clear communication by National Construction Authority (NCA) that the construction ought to have been ceased immediately. Yet the evidence demonstrates that the Appellants and their contractors proceeded with construction in full defiance of that suspension which in this Court’s view amounts to negligence and reckless disregard for foreseeable risk. 22. However, the Appellants argued that they were denied a fair hearing because the National Construction Authority’s (NCA) report was not served upon them. This contention is unsupported by the record since the report was annexed to the Plaintiff’s bundle of documents filed alongside the Plaint and available to the Appellants from the commencement of the proceedings. The Appellants did not object to the report’s production during trial, and neither did they challenge its admissibility on account of non-service when PW6 took the stand. Indeed, PW6 was subjected to full cross-examination by the Appellants’ counsel on the basis of the report’s findings. It is worth noting that the issue of non-service was therefore never raised at the trial stage and has only emerged at the appellate stage, rendering it an afterthought hence lacking in procedural merit. Moreover, Section 26(4) and (5) of the National Construction Authority Act provides a statutory remedy by way of appeal to the National Construction Authority (NCA) Appeals Board for any party aggrieved by its investigative findings. No such appeal was lodged, nor was leave sought to appeal out of time and thus it goes without saying that the Appellants’ inaction is suggestive of acquiescence to the findings. 23. Upon review of the record, this Court is satisfied that the learned trial magistrate acted properly and within the law in placing reliance on the National Construction Authority (NCA) report which clearly established that the Appellants did not possess the necessary statutory approvals and compliance certificates required for lawful construction, and that they continued building works despite the issuance of a suspension notice dated 8th March, 2021, Serial Number 073829. These actions constituted violations to regulatory directives issued by National Construction Authority (NCA) and at no point, either before the trial court or on appeal, did the Appellants produce evidence to demonstrate compliance. Their decision to proceed with the construction works in defiance of the National Construction Authority (NCA) notice and without qualified professional supervision exposed adjacent properties, including that of the Respondent, to foreseeable risk. The trial court was therefore justified in concluding that the Appellants had “thrown all caution to the wind.” 24. In the circumstances, this Court finds that the collapse of the building was primarily caused by the Appellants’ negligence and disregard of the National Construction Authority (NCA) directives, as was held by the trial Court and the Appellants have not demonstrated any error of law, fact, or evaluation sufficient to warrant interference by this court. Consequently, the ground of appeal challenging liability is without merit and is accordingly dismissed. 25. With regard to Whether the special damages awarded by the trial court were justified, it is a settled principle of law that special damages are awarded in compensation for specific losses and must therefore be both specifically pleaded in the pleadings and strictly proved through credible evidence. The Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 6

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of Appeal in the case of Hahn –vs- Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, articulated the applicable standard as follows: “ Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 26. 27. 28. Guided by this principle, this Court finds that in the Plaint, the Respondent pleaded specific monetary losses arising from damage to his business premises, stock, and equipment following the collapse of the Appellants’ building. At Paragraph 8 of the Plaint the particular items claimed included the following:i. Construction of high perimeter wall Kshs. 1,381,156/= ii. Steel gates Kshs. 320,000/= iii. Staircase Kshs. 212,000/= iv. Electrical works Kshs. 44,100/= v. Water connection Kshs. 15,500/= vi. Labour works Kshs. 402,000/= vii. Plumbing Kshs. 45,735/= viii. Stock items Kshs. 1,197,820/= ix. workshop equipment Kshs. 2,369,000/= x. Repairs done on motor vehicles before crash Kshs. 770,000/= xi. Miscellaneous Kshs. 200,000/= Kshs. 6,957,311/= Upon evaluating the evidence produced during trial, the learned magistrate found that although the Respondent had claimed a total of Kshs.6,957,311/=, only claims amounting to Kshs.5,941,957/ = were supported by proper documentation such as receipts and invoices. These were accordingly awarded by the trial Court. The Appellants have now challenged that award on the ground that the special damages were not proved to the required standard. They contend that:a. Some receipts, particularly the bundle amounting to Kshs.1,381,575/=, allegedly did not bear the Respondent’s name. b. The claim of Kshs.1,381,156/= for reconstruction of a perimeter wall, Kshs.212,000/= for construction of a staircase, and Kshs.770,000/= for motor vehicle repair costs were, in their view, unsupported. The Appellants argue that in the absence of strict proof, the figures remain bare assertions and should not have been granted. In support of their argument, the Appellants rely on the case of CMC Aviation Ltd –vs- Crusair Ltd (No. 1) (1987) KLR 103, where the Court held that pleadings alone are not evidence. They further rely on the decision in the case of Jimnah Munene Macharia –vs- John Kamau Erera, Civil Appeal No. 218 of 1998, which reiterated that in cases involving damage to chattels, the appropriate measure of compensation is the pre-accident value less salvage where no evidence of actual repair is provided. They additionally submit that the Respondent failed to mitigate his losses, citing the cases of African Highland Produce Ltd –vs- John Kisorio (2001) eKLR and Mombasa Maize Millers https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 7

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& Another –vs- Elius Kinyua Gicovi [2021] eKLR, where the Courts emphasized the principle that a claimant who contributes to their own loss is not entitled to full compensation. 29. The Respondent, on the other hand, argues that the special damages were both expressly pleaded and strictly proved through documentary evidence. He points out that the trial court carefully examined the receipts and vouchers produced in their bundle of documents and only awarded amounts supported by proof. Notably, the trial court rejected the miscellaneous claim of Kshs.200,000/= precisely because no evidence had been produced in support of that item. The Respondent’s position is therefore that the trial court applied the correct legal principles and that the award should not be disturbed. 30. This Court has independently examined the record, including the receipts and vouchers contained in the Respondent’s bundle of documents. It is evident that the claims amounting to Kshs.5,941,957/ = were supported through documentary evidence such as receipts. It is also noted that the Appellants participated fully in the trial and had the opportunity to cross-examine the Respondent and challenge the authenticity and reliability of the documents tendered. They did not call any expert or other witness to challenge the valuation of the damaged equipment, the claimed repair costs, or the cost of reconstruction. Therefore, the learned trial Magistrate cannot be faulted for accepting the documentary evidence that was produced and uncontroverted. 31. It is also important to note that while the principles of mitigation of loss are sound in law, the Appellants have not shown, either in the trial court or on appeal, what reasonable steps the Respondent failed to take, or how such failure inflated the financial loss. Bare allegations that losses ought to have been mitigated are insufficient without evidence demonstrating practicable steps that were available at the time but were not taken. 32. In the resultant, this Court finds no basis for interfering with the special damages as awarded by the trial court. The Respondent properly pleaded and satisfactorily proved the sums awarded, and the Appellants have not demonstrated any legal or evidentiary error that would justify intervention by this court hence the award of Kshs.5,941,957/= is hereby upheld. 33. The upshot of the aforementioned arguments on this appeal is that it lacks merits and is thus dismissed with costs to the Respondent. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF DECEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Kasimu holding brief for Mr. Kioko counsel for Appellant Mr. Omulama counsel for Respondent Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19280/eng@2025-12-05 8

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