https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8171

David Satelite Ltd & another v Samsutech Corporation Ltd (Civil Appeal E284 of 2025) [2026] KEHC 8171 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8171 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E284 of 2025 NM Orina, J June 11, 2026 Between David Satelite Limited 1st Appellant David Munuve 2nd Appellant and Samsutech Corporation Limited Respondent (Being an appeal from the judgment and decree of Hon. Becky Cheloti Mulemia delivered on 14 February 2025 in MCCMMSU No. E779 of 2020) Judgment Background 1.On the morning of 25 January 2019 around 6.00 a.m, an assortment of electronic items belonging to the Respondent left its warehouse in Syokimau aboard motor vehicle registration number KCC 634Z (the truck) operated by the 1st Defendant’s driver and turnboy for delivery to its stores along Koinange Street within Nairobi’s Central Business District. The truck did not arrive at its destination prompting a search and a report at Embakasi police station under OB number 43/25/2019. The truck was later recovered on 26 January 2019 at around 11.00 a.m abandoned at Bellevue near NEMA offices along Popo Road, Nairobi. All the items on board were missing with the exception of two refrigerators. The driver and turnboy were also missing. 2.Subsequently, the Respondent was compensated by Mayfair Insurance (its insurers) for the lost items to the tune of Kshs. 2,700,000.00. The insurers filed a subrogation claim through the Respondent which was the subject of the impugned trial court judgement for the sum of Kshs. 2,785,023.00 which comprises of the value compensated for the lost items plus investigation and adjustment fees of Kshs. 85,023.00. the trial court in a judgement rendered on 14 February 2025 allowed the claim as prayed together with costs and interest. 3.Dissatisfied with the trial court’s findings, the Appellants filed the instant appeal on the following grounds:a.The learned trial magistrate erred by failing to properly analyse the evidence placed before her and to thereby find and hold that there did not exist any valid contract signed between the 2nd Appellant and the respondent for the transportation of the Respondent’s goods;b.The learned trial magistrate erred by failing to appreciate the evidence presented before her and to hold and find that in the absence of any valid transportation contract signed between the 2nd Appellant and the Respondent, the Respondent did not have any valid or lawful cause of action against the 2nd Appellant and therefore the suit against the 2nd Appellant was unsustainable;c.The learned trial magistrate erred in law by failing to appreciate and apply the doctrine of privity of contract which stipulates that as a general rule, a contract cannot confer rights or obligations on a person (such as the 2nd Appellant) who is not a party to the contract;d.The learned trial magistrate erred in law by failing to properly analyse the evidence presented before her and by entering judgement against the 2nd Appellant for the sum of Kshs. 2,785,023.00 together with interest and costs thereon in the absence of any evidence whatsoever to support the liability of the 2nd Appellant;e.The learned magistrate misapprehended the facts and law relating to the application of the doctrine of subrogation and fell into an error by holding and finding that the doctrine of subrogation was applicable in the circumstances of the dispute before her for determination and in the absence of any compelling evidence to support this finding;f.The learned magistrate failed to properly assess and analyse the evidence presented before her and thereby erred by finding that the doctrine of subrogation was applicable merely because Mayfair Insurance Company Limited had already compensated the Respondent for the claimed value of the lost goods belonging to the Respondent;g.The learned magistrate misapprehended the law and failed to appreciate that Mayfair Insurance Company Limited could only successfully claim the value of the lost goods from the Appellants through the doctrine of subrogation subject to sufficient evidence being adduced by the Respondent to proof that the Appellants were indeed liable in negligence for the loss of the goods and further, subject to sufficient evidence being adduced to proof the particulars of the goods lost and their actual value;h.The learned magistrate totally misapprehended the evidence presented before her and thereby arrived at the wrong decision that the Respondent had incurred loss amounting to Kshs. 2,785,023.00 through the negligence of the Appellants in the absence of any and/or sufficient evidence to proof that the Appellants caused the alleged loss and/or that the alleged loss was indeed suffered by the Respondent;i.The learned magistrate failed to properly analyse the evidence presented before her and to find and hold that the Respondent had failed to produce any evidence to proof that any goods were loaded into the 1st Appellant’s motor vehicle registration number KCC 634Z and/or that the evidence produced by the Respondent in this regard did not meet the required threshold;j.The learned trial magistrate fell into error of law and fact by failing to properly analyse the evidence placed before her during the trial and to hold and find that the Respondent had failed to produce any credible evidence to proof the true or actual value of the goods which were allegedly lost and/or to proof that the lost goods were worth Kshs. 2,700,000.00 as claimed by the Respondent;k.The learned trial magistrate in her judgement failed to appreciate the facts and the law and particularly Section 108 of the Evidence Act cap 80 of the laws of Kenya which stipulates that the burden of proof of any fact lies on the person who wishes the court to believe in the existence of any particular fact and that such person would fail if no evidence or at all was given in this regard;l.The learned magistrate erred by failing to appreciate the facts and the law to appreciate that the Respondent’s claim was in the nature of a special damage claim and the law provides that such claim must not only be specifically pleaded but must also be strictly proved in accordance with Order 21 Rule 13 of the Civil Procedure Rules;m.The learned trial magistrate failed and/or overlooked to phrase the issues in dispute for determination by the court, failed to properly interrogate the evidence presented by the witnesses with any degree of particularity and thereby ended up writing a shallow judgement devoid of any judicial reasoning;n.The learned trial magistrate completely failed and/or ignored to properly evaluate the evidence of “PW1”, “PW2”, “PW3”and “PW4”and to note and give weight to the glaring gaps and insufficiency of their evidence particularly during cross-examination by the counsel for the Appellants;o.The learned trial magistrate completely ignored to analyse and uphold the weighty defence and evidence adduced by the Appellants during the trial including oral and documentary evidence;p.The judgement and award of Kshs. 2,785,023.00 together with interest and costs in favour of the Respondent is erroneous, unjust and without any basis in fact and law. 4.This appeal was canvassed by way of written submissions. The Appellants filed submissions dated 12 February 2026 while the Respondent filed submissions dated 13 April 2026. The Appellant’s submissions 5.On grounds number 1-4, the Appellants submit that the 2nd Appellant had raised a preliminary object on the grounds that the Respondent’s suit against him was fatally defective and incompetent for the reason that he was not a party to the agreement dated 3 June 2010 (the transportation agreement) and hence the Respondent did not have a cause of action against him. It is the Appellants’ case that the parties to the transportation agreement which is contained at page 113 of the Record of Appeal are the 1st Appellant and the Respondent and the 2nd Appellant had merely signed it as the director of the 1st Appellant. 6.Whereas the Appellants do not dispute that there was a valid agreement between the 1st Appellant and the Respondent, they aver that no valid contract existed between the 2nd Appellant and the Respondent. The Appellants rely on the doctrine of privity of contracts and submit that the trial magistrate erred in law and fact by failing to uphold the objection raised by the 2nd Appellant. Furthermore, the Appellants aver that the trial magistrate failed to determine this question in her judgement even considering that the same had been framed as issue number 1 and 2 in the statement of agreed issues between the parties. The same is produced at page 143 of the Record of Appeal. 7.On grounds 5-7, the Appellants submit that there was no privity of contract between them and Mayfair Insurance Company Limited (Mayfair). The Appellants argue that since the Respondent was fully compensated by Mayfair for the loss of goods, the Respondent did not have any sustainable or direct cause of action against the Appellants having been fully compensated for the value of the lost goods and could not file the action for recovery of the lost goods against the Appellants directly. 8.Further, even though the Appellants concede that the essence of the doctrine of subrogation is to allow an insurer after compensating an insured for any loss under the insurance contract to seek indemnity from a third party, they aver that they could not be held automatically liable for the alleged loss of goods. It is their case that the Respondent was required to discharge the burden of proof and demonstrate by evidence that the claimed loss occurred due to negligent actions of the Appellants and satisfy the court that indeed the loss was suffered. 9.On grounds 8-16, the Appellants submit that the Respondent failed to adduce sufficient evidence to prove that the alleged loss indeed occurred and/or that the loss was occasioned by the negligent actions of the Appellants and/or their authorized servants. The Appellants aver that evidence before the trial court demonstrated that they were not liable for the loss suffered by the Respondent. Further, the Appellants aver that the Respondent failed to prove the claim for special damages for the loss suffered as required under Section 108 and 109 of the Evidence Act. The Appellants argue that the Respondent failed to prove the specific goods and description thereof for the goods which were loaded into their truck or the specific goods which were lost in transit and their value. 10.In this regard, the Appellants impugn the delivery note relied on in evidence by the Respondent. The Appellants aver that the delivery note produced by the Respondent as proof that the goods were loaded into the truck contained anomalies being that the delivery note is on the letter head of another company being Kensco Business Solutions Limited and not the Respondent’s; that the delivery note is not signed; that the delivery note shows the goods were received by the Respondent rather than the Appellant’s driver; that the serial numbers indicated on the delivery note are not for the goods which were allegedly stolen and that the date when the goods were allegedly stolen is not clear. 11.The Appellants also aver that the sole evidence relied on by the trial magistrate was an assessment report but “PW4” who produced the said report was not legally competent to produce the same since she was not the maker. 12.The Appellants prays for the appeal to be allowed as prayed. The Respondent’s case 13.The Respondent avers that the liability of the 2nd Appellant arises from his “active misfeasance” as the “directing mind and will” of the transport operation. The Respondent submits that the trial court did not err in finding the 2nd Appellant liable because he was not a passive officer but the primary architect of the failed safety system that led to the loss. The Respondent urges the court to apply the personal participation doctrine which stipulates that corporate officers are personally liable for tortious acts they “commit, participate in, or inspire.” In support of this argument, the Respondent urges the court to be persuaded by the holding in the case of Yavar Rzayev LLC v. Rottman, Del Super. C.A S14L – 120 035 MJB (2015) which held that when a corporate officer directly participates in a tortious conduct, liability may be imposed. 14.To further buttress its argument, the Respondent submits that the 2nd Appellant can be said to have personally committed, participated in, or directed the acts that led to the loss of the Respondent’s goods. His liability, according to the Respondent, can be evidenced through his failure in personnel vetting and supervision, failure to ensure adequate security measures, and mismanagement of operational systems. Consequently, the Respondent argues that the 2nd Appellant cannot seek refuge behind the doctrine of separate legal personality. Additionally, the Respondent avers, the Appellants occupied the legal status of bailees for reward and they assumed a strict duty of care upon loading the consignment unto the truck. 15.On the applicability of the doctrine of subrogation, the Respondent submits that all the conditions for the doctrine to apply were satisfied being: the existence of a valid contract of insurance; a loss covered by the risk; and a full indemnity paid to the insured. In response to the averment by the Appellants that they cannot beheld liable merely because an insurance payout was made, the Respondent submits that liability against the Appellants has been established through evidence which demonstrated that the Appellants had custody of the goods under a contract of carriage; that the goods were lost while in the custody of the Appellants; and that the Appellants’ employee/ driver absconded with the goods in the course of employment and was subsequently charged with stealing by servant. The Respondent submits that these facts establish vicarious liability. 16.On liability, the Respondent reiterates that the goods in question were lost while in the custody of the Appellants. The Respondent further submits that the loss occurred through the Appellants’ employee who was acting in the course of employment which in turn establishes breach of bailment obligations and vicarious liability rendering the Appellants fully liable for the loss. The Respondents further rely on the case of Royal Insurance Company of East Africa & another v Superfreighters Ltd & 4 others [2003] KEHC 948 (KLR) where the Court held that, “…In the absence of any explanation as to how the loss occurred, the Court must presume that it was as a result of the Transporter’s negligence for goods in the possession of a bailee do not just disappear in thin air without some intervening human act or omission.” 17.Finally, the Respondent submits that the special damages awarded by the trial court were strictly proved through the discharge voucher issued by Mayfair confirming payment of Kshs. 2,700,000.00; the mutual acknowledgement between the Respondent and Mayfair; and a payment voucher request for investigation and adjustment fees being Kshs. 85,023.00 18.The Respondent prays that the appeal be dismissed with costs. Analysis and determination 19.The grounds set out in the memorandum of appeal are unnecessarily verbose and repetitive. I am constrained to remind counsel for the Appellants that there is beauty in brevity. In appellate litigation, points of disagreement with the trial court’s judgement should be presented with the necessary conciseness and the aggrieved party should avoid the temptation to “throw enough mud at the wall” hoping that some of it will stick. 20.A reading of the numerous grounds of appeal advanced by the Appellants and the submissions of parties brings out four main issues in contention:a.Whether the 2nd Appellant was properly joined in the suit before the trial court;b.Whether the doctrine of subrogation was applicable in this case;c.Whether liability was established against the Appellants for the loss of the Respondent’s goods;d.Whether the claim for special damages was sufficiently proved 21.As a first appellate court, my role is to reassess and reanalyse the evidence before the trial court in order to reach my own conclusions. However, in doing this, my assessment is done having in mind that I did not have the opportunity to see or hear the witnesses first hand. This duty has been restated in Selle & another vs. Associated Motor Boat Co. Ltd. & others (1968) EA 123. Whether the 2nd Appellant was properly joined in the suit before the trial court 22.The dispute before the trial court related to loss of goods belonging to the Respondent which were allegedly being transported by the 1st Appellant pursuant to a transportation contract dated 3 June 2010 (page 113 of the Record of Appeal). In the agreement, the Respondent and the 1st Appellant entered into a contract for the provision of transport services for a fee. 23.There is no contention between the parties that the 2nd Appellant is the director of the 1st Appellant. Further, in the Plaint filed before the trial court, the 2nd Appellant is described as a director of the 1st Appellant. In paragraph 5 of the Plaint, though, the Respondent averred that the Respondent had entered into an agreement with the Appellants. It is stated, “At all material times to this suit the Plaintiff had entered into an agreement with the Defendants for supply of transportation services for its goods to the Plaintiff’s various customers within the Republic of Kenya.” 24.It is clear from the pleadings filed before the trial court that the 2nd Appellant had been sued as a party to the transportation agreement. No such agreement exists in the evidence produced before the trial court to show that the 2nd Appellant was a party to any transportation agreement or the transportation agreement in contention. We agree with the Appellants that the 2nd Appellant did not have a subsisting contract with the Respondent and could not be held liable under the contract between the 1st Appellant and the Respondent. Under the doctrine of privity of contracts, a contract cannot confer rights or impose obligations on a person who is not a party to the contract. Whereas there are some exceptions to this doctrine, the Respondent did not demonstrate under what exception the 2nd Appellant was sued. 25.The trial court did not address the specific liability of the 2nd Appellant. Instead, the court found the Appellants jointly liable. Perhaps if the trial magistrate had addressed her mind to the objection raised by the 2nd Appellant that he was not a party to the agreement she could have reached a different holding. Instead, the analysis by the trial magistrate steered clear of the issue and held the Appellants jointly liable without providing the basis for the holding. 26.The Respondent has, however, argued that the 2nd Appellant was sued before the trial court for his “active misfeasance” as the “directing mind and will” of the transport operation. The submissions advanced by the Respondent on the liability of the 2nd Appellant are nothing more than an afterthought and an attempt to salvage the case against the 2nd Appellant on appeal. The Respondent is advancing a fresh narrative on the liability of the 2nd Appellant that was not before the trial court. Appeal proceedings do not afford a party who did not advance a strong case at the trial stage a second bite at the cherry. Rather, they are limited to correcting errors committed by the trial court, if any. The argument by the Respondent is hereby rejected. For the reason that the trial magistrate found the 2nd Appellant liable in contravention of the doctrine of privity of contracts she erred in law and fact and that finding is reversed. Whether the doctrine of subrogation was applicable in this case 27.The doctrine of subrogation applies where there is a contract of insurance that insured a risk and the risk has happened leading to the compensation as per the terms of the insurance policy. The insurer then steps into the shoes of the insured and pursues a claim of indemnity against a third party on the basis that the third party is at fault. In doing this, however, the insurer cannot institute a suit in its own name but in the name of the insured. The law in this regard is well settled as pronounced by the Court of Appeal in Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited (2018) eKLR as follows: 26.The essence of the doctrine of subrogation is not in contention. It allows an insurer after compensating an insured for any loss under the insurance contract to step into the shoes of the insured. In that, the insurer is entitled to all the rights and remedies the insured might have against a third party in respect of the loss compensated…. 28.As it stands, the law in that respect is settled, that is, that an insurer cannot under the doctrine of subrogation institute a suit in its own name against a third party. See this Court’s decisions in Octagon Private investigation Security Services vs. Lion of Kenya Insurance Co. [1994] eKLR and Michael Hubert Kloss & another vs. David Seroney & 5 others [2009] eKLR. 28.The evidence before the trial court shows that the Respondent had taken out an insurance policy with Mayfair Insurance Company Limited to cover goods in transit which was valid until 31 December 2019 (page 27 of the Record of Appeal). It is not in contest that as at the time of the loss of the Respondent’s goods on 25 January 2019, the said policy was still valid. The evidence also demonstrates that the Respondent triggered the insurance policy upon the loss of its goods and it was duly compensated by Mayfair (discharge voucher dated 16 April 2019 – page 28 of the Record of Appeal). It is also clear from the evidence that the insurer instituted these proceedings upon sending a demand letter to the Appellants for indemnification. The proceedings were brought in the name of the Respondent. I am satisfied that the doctrine of subrogation was applicable in these proceedings and was invoked properly. 29.The Appellants, however, contend that they did not have privity of contract with the insurer hence the proceedings against them are unwarranted. Whereas the Appellants are correct in asserting that there was no privity of contract between them and the insurer, the doctrine of subrogation is not invoked on the basis of privity of contract between the insurer and the person it is invoked against. A suit for subrogation, like the suit which is the subject of these appeal proceedings is brought in the name of the insured against a third party (the Respondent herein) by an insurer who assumes the rights of the insured upon payment of compensation. Whether liability was established against the Appellants for the loss of the Respondent’s goods 30.Associated with the grounds of appeal on the applicability of the doctrine of subrogation is the argument by the Appellants that, in any case, even if the court were to find that the doctrine is applicable, the Appellants are not liable as a third party. The Appellants argue that they are not liable in negligence for the loss of the goods. It is the Appellant’s case that the Respondent did not fully discharge the burden of proof that the claimed loss occurred due to negligent actions of the Appellants. They also aver that the Respondent did not satisfy the court that the loss indeed occurred. 31.In their defence filed before the trial court, the Appellants averred that they did all that was possible within their capability and means to ensure that the Respondent’s goods were safe and therefore the alleged loss of some of the goods was caused by factors beyond their control. The trial court, in the relevant part of the judgement, found that the goods belonging to the Respondent had been stolen while under the care of the Appellants and as such the Appellants were liable for the loss. In the evidence recorded by the trial court, the 2nd Appellant who testified as DW1 confirmed that the driver and turn boy of the truck that was transporting the goods belonging to the Respondent on 25 January 2019. He also testified that the truck was registered in his spouse’s name. 32.The extent for liability for carriage of goods is dependent on the type of carrier in question. Under common law, a common carrier is held liable under strict liability for loss or damage of goods while a private carrier’s liability is based on negligence. The test of whether one is a common carrier or a private carrier has been stated as follows:To constitute a person a common carrier he must be ready to carry for hire as a business and not as a casual occupation. It is essential that he should hold himself out as being ready to carry goods for any person or to carry any passengers no matter who they may be. If he carries for particular persons or certain passengers only he is not a common carrier, and the relationship between him and the owner of the goods or the passenger is one of special contract. If he retains a right of selection as to whom or what he shall carry he is not a common carrier.11Halsbury’s Laws of England Vol.4 para 36 33.It is not contested that the 1st Appellant transported the goods in question on behalf of the Respondent pursuant to a transportation agreement between the parties dated. 3 June 2010. The 1st Appellant was, therefore, not a common carrier and its liability can only be based on negligence. In its claim before the trial court, the Respondent averred that the truck’s driver and turn boy who had been engaged by the 1st Appellant were negligent and dishonest and that negligence was attributable to the Appellants through the doctrine of vicarious liability. The particulars of negligence on the part of the Appellants and/or their employees were stated as follows: failing to protect the Respondent’s goods; failing to resist the theft of the Respondent’s goods; failing to deliver the goods to the agreed destination; colluding with thieves to steal goods loaded on the truck; entrusting the Respondent’s goods to dishonest employees who ended up stealing the goods; exposing the Respondent’s consignment to the risk of damage/loss and theft; causing the loss or theft of the Respondent’s consignment; and being generally reckless, careless and negligent. 34.In order to establish negligence on the part of the 1st Appellant, the burden rested on the Respondent to establish four elements. First, the Respondent was required to demonstrate that the 1st Appellant owed the Respondent a duty of care, there was a breach of that duty and that breach is attributable to the 1st Appellant, and finally that a loss resulted from the breach. These elements were restated by JB Ojwang, J (as he then was) in Khetshi Dharamshi Co Ltd v P N Mashru Ltd [2006] KEHC 3325 (KLR) as follows:The law of negligence is part of the civilizing legal infrastructure, much like the criminal law, which places fixed duties on all persons – to ensure they take care and do no cause injury to their “neighbours”. To such “neighbours” everyone has a duty of care, and anyone who acts in breach of this duty, with consequential injury, stands, at the motion of the injured party, to be compelled to make appropriate recompense. 35.As a carrier entrusted to carry the Respondent’s goods, the 1st Appellant owed a duty of care to the Respondent to deliver the said goods in good condition. There is also no contest that the said goods were not delivered as expected but some of them were lost and the truck carrying the goods was found abandoned the following day with only two items. The loss of the goods belonging to the Respondent is a breach of the duty of care owed to the Respondent. Evidence was also given that this loss was occasioned by the 1st Appellant’s driver and turnboy who were entrusted with the delivery of the goods. In his witness statement dated 13 April 2021 and filed before the trial court, the 2nd Appellant noted that he had participated in the investigations that subsequently led to the arrest of the driver of the vehicle who had since been charged with theft. Evidence before the trial court was also clear that there were only two refrigerators which had been recovered meaning that the Respondent suffered a loss as a result of the breach. 36.The only deduction looking at the evidence is that the driver and the turn boy were responsible for the loss of the Respondent’s goods. In the words of Ringeera J (as he then was) in Royal Insurance Company of East Africa & another v Superfreighters Ltd & 4 others [2003] KEHC 948 (KLR):In the absence of any explanation as to how the loss occurred, the Court must presume that it was as a result of the Transporter’s negligence for goods in the possession of a bailee do not just disappear in thin air without some intervening human act or omission. 37.The question for determination then is whether the breach occasioned by the driver and turnboy of the 1st Appellant could be attributed to the 1st Appellant, vicariously. Vicarious liability attaches responsibility to the master for the negligent acts of a servant. The test for application of this doctrine is that the servant was acting in the course of his normal duties. The Court of Appeal in Mwona Ndoo vs. Kakuzi Ltd. (1982-1988) 1 KAR 523 expressed this test as follows:The true test can be expressed in these words: was the servant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligent or even fraudulent or contrary to express orders the master is liable. If, however, the servant is not doing what he is employed to do, the master does not become liable merely because the act of the servant is done with the master’s knowledge, acquiescence or permission…But once it is conceded that (i) the servant was doing something in his working hours, (ii) on his employer’s premises and (iii) that his act had a close connection with the work which he was employed to do, then the onus (in the sense of evidential burden) shifts to the employer to show that the act was one for which he was not responsible. In other words, it is presumed that the vehicle is being used for his master’s purpose if the servant has authority to use it at all.” 38.I am satisfied that the driver and the turnboy of the 1st Appellant’s truck were acting in their ordinary course of business of transporting the Respondent’s goods from the Respondent’s warehouse in Syokimau to Nairobi Central Business District on the morning of 25 January 2019 when the Respondent’s goods were lost or stolen. The 1st Appellant did not offer any evidence to rebut this factual situation. The 1st Appellant, was therefore, vicariously liable for the acts of the driver and turnboy. The 1st Appellant cannot shirk the responsibility entrusted upon it for the reason that the breach was done by the servants. As underscored in Securicor (K) v. EA Drapers Ltd and another CA No. 67 of 1985:When a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then, if he entrusts that duty to a servant or agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is careless so that they are stolen by a stranger, the master is liable. So also, if the servant or agent himself steals them or makes away with them. Whether the claim for special damages was sufficiently proved 39.The last issue for determination is whether the Respondent sufficiently proved the claim for special damages. The Appellants aver that the Respondent failed to prove the specific goods and description of goods which were loaded into the 1st Appellant’s truck for delivery. The Appellants further aver that the Respondent failed to prove the value of the goods that were lost. 40.The pleadings filed before the trial court and the totality of the evidence relied upon by the Respondent specifically the delivery note dated 25 January 2019 and the detailed report done by Protectors Limited demonstrate that the sum of Kshs. 2, 785,023.00 was not only pleaded but the same was proved through evidence. The report by Protectors Limited lists the lost items which tallies with the delivery note and has undertaken an independent verification of the claimed sums and arrived at an assessed value. The report also notes that the assessors were provided with invoices to show the value of the items which had been shipped into the country, clearing charges and Kenya Ports Authority charges. These documents were also produced before the trial court. I am satisfied that, on a balance of probabilities, the Respondent proved the value of the items that were lost. 41.On the other hand, the Appellants did not adduce any evidence to impugn the values which the assessors arrived at and which the Respondent was compensated for. The Appellants made sweeping statements in their pleadings before the trial court including the allegation that they were aware that more items had been recovered than was acknowledged without any evidence to back them up. 42.In conclusion, considering the above analysis, I make the following orders:a.The finding by the learned trial magistrate that the 2nd Appellant was jointly liable with the 1st Appellant was in error and the same is hereby set aside;b.The finding of the learned trial magistrate on the liability of the 1st Appellant is hereby upheld and the appeal to that extent is dismissed;c.Parties shall bear their own costs considering the outcome of the appeal. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:Mr. Kang’ethe for the AppellantMs. Wangari for the RespondentLisa – Court Assistant