George Nyandoro v Anthony Edwin Kiprono

Total Ksh. 805,484/= 4. The defendant failed to enter appearance and file defence and therefore, interlocutory judgment was entered against him on 27th March, 2021. 5. During the formal proof hearing of this matter on 15 October, 2024 the appellant adopted his witness statement. He also produced as his list and bundle of documents dated 15th January, 2019 as his evidence. 6. In his statement the appellant stated as a result of the subject accident herein, he contracted Eleven Street Garage to repair his vehicle which repairs cost him Ksh.509,484 and towing charge of Ksh.10,000 7. Additionally, the appellant stated he lost income of approximately Ksh.11,000 per day for 26 days, amounting to a total of Ksh.286,000. The plaintiff produced the following documents: a. Police abstract dated 17/5/2017 b. Motor vehicle copy of records for motor vehicle Registration Number KCK 186J owned by the defendant. c. Certificate of examination dated 16th May 2017 and test of vehicle for KCE 494E Isuzu Minibus. d. Invoice of Ksh.509,484 by eleven Street Garage. e. Receipts of Ksh.10,000 for towing charges by Seven Hills Cab, Recovery and Towing Services. 8. In her judgement, the trial magistrate dismissed the Plaintiff’s claim with costs for the reason that the damages alleged by the plaintiff were not pleaded with certainty and strictly proved as required by law. The learned magistrate also found that no proof was tendered by the plaintiff to support the claim of user of Ksh.11,000/= per day for 26 days. 9. Being dissatisfied with the judgement of the trial magistrate, the appellant preferred this appeal. The appeal is premised on 5 grounds which can only be summarized into one (1) key ground. The ground is whether the learned magistrate erred in fact and law in finding that the oral and documentary evidence provided by the plaintiff in the trial court did not prove the appellant’s claims on balance of probabilities. 10. The Court has carefully re-evaluated the evidence adduced before the trial Court. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial court in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (See. Selle vs Associated Motor Boat Company (1968) EA). 11. Having analyzed the evidence on record, the pleadings and submissions by the appellant, the court identified two issues for determination The first issue for determination in this matter is whether the appellant proved the claim for special damages in the trial court. The second issue is whether the Appellant is entitled to costs of this appeal and of the trial case. 12. It is settled in law that special damages ought to be specifically pleaded and strictly proved. In the case of Mochama v Ogoti (Civil E083 of 2023) [2025] KEHC 1468 (KLR) DKN Magare, J cited with https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10207/eng@2026-07-02 2

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approval the decision in the case of David Begne -vs-Martin Bundi (1997)eKLR, in which the Court of Appeal stated as follows: “ It has been held time and again by this court that special damages must be pleaded and strictly proved as was stated by Lord Droddard C.J. in Bohham vs Hyde Park Hotel Limited (1948) 64 TLR 177 thus: “Plaintiffs must understand that if they bring actions for damages it is for them to prove damages. It is not enough to write down the particulars and so to speak, throw them at the head of the court saying ‘This is what I lost, I ask you to give me these damages. They have to prove it.” 13. To support its claim for special damage for repairs, the plaintiff provided an invoice for Ksh.509,484/ =. The particulars of the said invoice are: a. Mechanical – Ksh. 18,000/= b. Mechanical Parts - Ksh. 118,200/= c. Electrical - Ksh. 8,000/= d. Electrical parts - -Ksh. 93,250/= e. Body works - Ksh. 70,000/= f. Body parts - Ksh. 202,034. 14. Firstly, the court wishes to point that an invoice is not proof of payment and therefore, there is no proof that the aappellant incurred the said expenses. Secondly, this court agrees with the observation of the trial court that the appellants in his evidence -in- chief never stated with with certainty the damages that were occasioned by the subject accident herein necessitating repairs and the cost incurred in repairing his motor vehicle registration number KCE 494E.The particulars of the invoice produced are too general and vague. This court, therefore, agrees with the trial court the cost of repairs were not strictly proved by the plaintiff as required by law. 15. The court also agrees with the trial court that the Plaintiff failed to tender any evidence to prove he suffered loss of user for Ksh.11,000/= per day and that his vehicle was out of use for 26 days. 16. The towing charges of Ksh.10,000 from Ngong Road to Ngong Police Station of the Appellant were, however, proved by the appellant through production of the relevant receipts. The claim is, therefore, allowed. 17. Regarding costs, I agree with the appellant’s counsel that trial court misdirected itself by awarding costs to a defendant who never participated in the trial. Having succeeded in this appeal, albeit marginally, the appellant is awarded costs of the lower court case. The court, however, declines to award cost of the appeal as the appeal as the appeal arose from undefended and the appeal itself not defended. 18. The upshot of my findings above is the trial court judgement set aside and judgement is entered in favour of appellant for the sum of Ksh.10,000 plus costs of the lower court. DATED, SIGNED AND VIRTUALLY DELIVERED THIS 2ND DAY OF JULY 2026. HON. P. K. ROTICH JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10207/eng@2026-07-02 3

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Mr. Obae for the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10207/eng@2026-07-02 4

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