https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7363
The appeal failed because the appellant did not strictly prove the alleged special damages or produce documentary evidence of a tribunal order and proceedings showing that the respondent was required to open the house. The respondent's silence did not shift the burden of proof, and unsupported oral evidence carried...
Source-derived case information.
- Citation
- [2026] KEHC 7363 (KLR)
- Parties
- Appellant: JARED OCHIENG ONYANGO; Respondent: PARAGON PROPERTY CONSULTANTS LTD
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E1213 of 2024
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- Appeal dismissed with costs.
- Judges
- ["LP Kassan"]
- Legal Topics
- Special Damages, Burden of Proof, Unchallenged Evidence, Lockout/distress by Landlord, Proof of Loss, Appeal Dismissed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JARED OCHIENG ONYANGO
Appellant
PARAGON PROPERTY CONSULTANTS LTD
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the appellant proved loss of items worth Ksh 504,650 as special damages.
- 2 Whether the respondent's failure to testify lowered the appellant's burden of proof.
- 3 Whether the appellant was entitled to damages for unlawful distress or lockout without documentary proof of a tribunal order and proceedings.
Ratio Decidendi
The appeal failed because the appellant did not strictly prove the alleged special damages or produce documentary evidence of a tribunal order and proceedings showing that the respondent was required to open the house. The respondent's silence did not shift the burden of proof, and unsupported oral evidence carried insufficient weight. The lower court was therefore right to dismiss the claim.
Court Disposition
Appeal dismissed with costs.
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
1 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA NAIROBI CIVIL APPELLATE DIVISION HCCA E1213 OF 2024 JARED OCHIENG ONYANGO ………………………….. …..APPELLANT PARAGON PROPERTY CONSULTANTS LTD ………..RESPONDENT VERSUS 1. The brief history of this Appeal is that the Appellant was the JUDGMENT Respondent’s tenant who was charged with creating disturbance in a criminal case where the Respondent was the complainant. According to the Appellant, he spent 14 days in the remand before he was finally convicted and fined Ksh5,000/-. The Appellant’s contention is that he lost items worth Ksh504,650/- which were in the house. The house had been locked by the Respondent who denied him access despite filing a suit in the tribunal. 2. The lower Court dismissed this claim on the basis that the Appellant did not provide prove of loss of items worth the amount claimed nor did he attach any order from the tribunal requiring that the Respondent allows him access to the house. At the time when this matter was filed, Civil Procedure HCCA 12132024 /EK 1 Rules had not been amended to allow filing of witness statements. 3. The Respondent did not testify in this case. The burden of prove does not become lesser in cases where the defendant does not testify. The claim by the Appellant qualify to be for special damages which must be strictly proven. Failure to produce documentary evidence to prove special damages is incurable because the Court cannot rely on mere oral evidence. 4. This Court would have awarded damages for unlawful distress or lockout but there is no documentary evidence that the matter was filed before a tribunal which issued an order for the locks to be opened but was not complied with. No proceedings of the said tribunal case were attached. The casual evidence or the unsupported oral evidence by the Appellant carries less weight even though the matter is undefended. 5. The onset of the above is that the appeal is dismissed with costs DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 28TH DAY OF MAY 2026. HON L P KASSAN JUDGE HCCA 12132024 /EK 2 HCCA 12132024 /EK 3