Bilhah Waruguru Wanjama v Bahati Agro Processors Limited & 2 others

6. The Appellant aggrieved by the said decision, preferred the instant appeal on the following grounds: i. That the Learned Trial Magistrate erred in law and in fact by not carefully, diligently and or properly analyzing, scrutinizing, reading and or considering the pleadings, evidence/exhibits/ materials on record, submissions and or the applicable law and principles for award of damages while arriving at her decision/judgment herein. ii. That the Learned Trial Magistrate erred in law and in fact in reaching a finding/award on damages for net loss of Appellants car and damages for loss of user/inconvenience arising from damage to the Appellant’s car that is not based on proper, exhausting and or requisite evaluation and considering of the pleadings, evidence on record, submissions and the applicable law and principles for award of the same. iii. That the Learned Trial magistrate erred in law and fact in failing to award the Appellant herein special damages despite the same being pleaded and proved in accordance with the law. iv. That the Learned Trial magistrate erred in law and fact by rendering a judgement that is not properly /well-reasoned and or supported by the materials on record. v. That the Learned Trial magistrate erred in law and fact by not conducting her-duty as the Trial court properly, exhaustively and/or as expected. vi. That the Learned Trial Magistrate erred in law and fact by not awarding the Appellant herein damages that she deserved. 7. The Appellant thus prays that the Appeal be allowed and part of the judgment delivered on or about 15th June 2023 be reversed, reviewed and/or set aside; that the Cout does come up with an enhanced, appropriate and independent determination on the issue of Damages for net loss of Appellant's car and loss of user/inconvenience arising from the damages of the appellant's car, special damages, costs of this appeal and any other remedy that this honourable court might deem fit. 8. The Appeal was heard by way of written submissions. The Respondent’s submissions are not on record. Appellant’s Submissions 9. The Appellant submits that the Trial Court awarded damages that were not sought for. That what was sought and proven was Kshs. 290,000 as the damages for loss of the Appellants motor vehicle which had been written off. 10. On special damages, it is submitted that the same was pleaded and proven by documentary evidence. 11. The Appellant further argued that the exhibits were produced in evidence by consent of parties and hence they are unassailable. Reliance was placed on the case of Eldoret Express Company Limited v Nandabelwa (Civil Appeal 120 of 2017) [2022] KEHC 3226 (KLR) (5 May 2022). 12. On the issue of costs, it is submitted that the Respondent was not the one that misled the Court and the error was on the part of the Court. That the most appropriate orders will be that each party bears its own costs as was held in the case of Munyambu Mwendwa V Mulwa Kimwele [2002] eKLR where the Court held that the errors leading to the appeal were made by the court officers who misapprehended the law and failed to follow the correct procedure. There is no need therefore to punish any party to pay costs in void proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7717/eng@2026-04-23 2

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Analysis and Determination 13. I have considered the record of appeal and the written submissions. I am guided by the well-established principle in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, to re‑evaluate the evidence and reach its own conclusions. 14. This being an appeal on quantum this Court is guided by the Court of Appeal case in Butt v Khan [1978] KECA 24(KLR) where as per EJE Law, JA, it was held that: “ …An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low...” 15. The Trial Court has been faulted for failing to award the Appellant the cost for the damages that her car sustained out of the accident, for awarding what was not sought for and further not awarding the special damages. 16. It is trite law that parties are bound by their pleadings and that a Court cannot frame issues outside of those pleadings from the parties'. This was emphasized by the Court of Appeal in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR): “ (11) As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce. The learned Judge, no matter how well- intentioned, went well beyond the grounds raised by the Petitioners and answered by the Respondents before her and thereby determined the Petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the Appeal succeeds on that score” 17. At paragraph 8 of the Plaint, the Appellant pleaded Kshs. 290,000 being the net loss for the damage that her vehicle sustained. The Court awarded Kshs. 100,000 under that head. 18. An award under this head in nature would be a in the category of a special damage claim and the general rule is that special damages must be specifically pleaded and specifically proven. The assessment report dated about 28th December 2017 explained how the figure as pleaded was arrived at. 19. The Court finds that the Trial Court was in error in making an award for Kshs.100,000 where Kshs. 290,000 had been pleaded and strictly proven. 20. This Court concurs with the Appellants that the Trial Court was in error when it failed to appreciate pleadings and evidence before arriving at the award. 21. With respect to special damages, the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1942] KECA 42 (KLR) underscored that with special damages, direct evidence is tendered to demonstrate the precise loss incurred. It held that: “ The law on damages stipulates various types of damages. The distinction between general damages and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7717/eng@2026-04-23 3

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to result from the infringement of a legal right or duty. Damages must be proved but the claimaint may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded. (See Chitty on Contracts 26 edition para 1772 at p117 et seq.)” 22. At Paragraph 7 of the Plaint, the Appellant pleaded Kshs.550 being Motor Vehicle Records Search Fees, Kshs.15,000 as towing fees and Kshs. 5,900 as assessment fees totalling to the said sum of Kshs.21,450. The invoices supporting these expenses were duly produced and admitted in evidence as exhibits by consent of the parties. 23. The authenticity of the pleaded amount was not in question. The Trial Court’s failure to award the pleaded and proven special damages was therefore a misdirection in law and fact, justifying appellate interference. 24. On the issue of costs, it is well established that they follow the event and awarding them lies within the discretion of the Court. The Court of Appeal in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR), reiterated that costs follow the event to mean that the successful party is ordinarily entitled to costs unless the Court records good reasons for departing from that principle. 25. In the result I order as follows: i. The Appeal is therefore allowed. ii. The Judgement is set aside and substituted with material damage award of Kshs. 290,000 and special damages of Kshs. 21,450 iii. I am inclined to grant the cost of the appeal to the Appellant. SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 23RD DAY OF APRIL, 2025 ____________________ MOHOCHI S. M. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7717/eng@2026-04-23 4

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