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Machoka v Gudka & another (Civil Appeal 176 of 2020) [2026] KECA 1170 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1170 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 176 of 2020 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between John Oruru Machoka Appellant and Bhavin Ashwin Gudka 1st Respondent Dr. Vijay Kumar Saidha 2nd Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Kisii (Ndung’u, J.) dated 13th May, 2020 in HCCA No. 141 of 2018) Judgment 1.The dispute between the parties arose following the wrongful attachment of the Motor Vehicle Registration No. KBD 724W Pick-Up belonging to John Oruru Machoka (the appellant), while executing a decree issued to Bhavin Ashwin Gudka and Dr. Vijay Kumar Saidha (the respondents) in Kisii CMCC No. 240 of 2013. Consequently, the appellant filed Kisii CMCC 486 of 2014 against the respondents, claiming damages for loss of user of the subject motor vehicle and/or profits, interest and costs. 2.In the amended plaint dated 22nd January, 2015, the appellant stated that on or about 20th June, 2014, the respondents caused the impounding and wrongful detention of his motor vehicle in execution of a decree in Kisii CMCC No. 240 of 2013, wherein he was not a party. He thus filed a notice of objection in the said matter, and the respondent gave a notice of intimation to proceed with the attachment and sale of the vehicle. The court hearing the objection proceedings later delivered a ruling in his favour on 11th September, 2014, and that his vehicle was then released by the auctioneers on 12th September, 2014 at the respondent’s instance. According to the appellant, he suffered loss of user of his motor vehicle to the tune of Kshs. 75,000/- per week for 12 weeks and 2 days through alternative car hire, totalling Kshs. 925,000/=. 3.The respondents, in their defence, contended that the execution process complained of was carried out by a duly licensed auctioneer, who is an officer of the Court and not their agent. That they therefore could not be held liable for the actions of the auctioneer. They asserted that the attachment and retention of the subject motor vehicle were grounded in lawful court process, and hence no damages could arise therefrom. They further contended that the appellant and his father, Shem Thomson Machoka (the judgment debtor in the execution proceedings), hatched the claim for damages as a scheme to defraud the cause of justice. They also stated that the suit was bad in law and legally untenable, as the court lacked jurisdiction pursuant to Sections 7 and 34 of the Civil Procedure Act. 4.On 07th December, 2018, the trial court (Hon. P. Wamuch Nyotah, Resident Magistrate) delivered judgment in the suit, dismissing the respondents’ defence and finding in favour of the appellant as prayed. The trial court found that the respondents, being the principals and decree holders in Kisii CMCC No. 240 of 2013, instructed their lawyers and auctioneers to attach the subject motor vehicle in execution of the decree in their favour. The trial court also found that attaching the appellant’s motor vehicle instead of the judgment debtor’s property was illegal as it amounted to trespass to goods or chattels, and warranted payment of damages by the respondents. The trial court awarded the appellant Kshs. 925,000.00 being damages for the loss of use of his vehicle. 5.The respondents were dissatisfied with the decision of the trial court and thus filed an appeal in the High Court of Kenya at Kisii. The 1st appellate court (Ndung’u, J.) summarized the issues arising for determination as: whether the auctioneer was acting as an agent of the decree-holder, whether the auctioneer was solely liable for the bungled execution and the right party to be sued for damages, whether the court contravened the provisions of section 34 of the Civil Procedure Act by adjudicating upon the subject which touched on execution proceedings, and whether the trial court erred in granting prayers that were neither pleaded nor proved. 6.The 1st appellate Court considered and allowed the appeal, set aside the decision of the trial court, substituted the same with an order dismissing the suit, and granted costs to the respondents. In the impugned Judgment dated 13th May, 2020, the learned Judge found that the appellant was entitled to institute proceedings against the respondents, who issued instructions to the auctioneer who wrongfully attached the appellant’s vehicle. The 1st appellate court also found that it would have been improper for the appellant to seek damages against the respondents in the other suit (Kisii CMCC 240 of 2013), as it related to a separate and distinct cause of action. 7.Further, the 1st appellate Court noted that because the amended plaint was unclear on who between the two respondents the appellant was seeking damages from, the error was fatal and rendered the claim ambiguous. The 1st appellate court went on to find that the respondent’s claim for loss of user was specifically pleaded and set out in his claim, but was not proved. It explained that a perusal of the evidence before the trial court did not provide any details of the alternative vehicle the appellant purportedly hired during the illegal impounding of his vehicle, which meant he had failed to prove his claim for special damages. 8.Aggrieved by part of the 1st appellate court’s findings, the appellant lodged an appeal to this Court. The memorandum of appeal dated 16th December 2020 raises three grounds of appeal as follows:i.The learned Judge erred in law and misdirected himself fundamentally in holding that special damages were not proved with certainty, particularly that the registration number of the motor vehicle was not stated in the receipt.ii.The learned Judge erred in law and misdirected himself fundamentally in holding that the failure of the appellant to state in the plaint from whom between the two respondents he was specifically seeking damages was fatal as to render the appellant's claim ambiguous.iii.The learned Judge failed to do substantive justice by giving undue regard to procedural technicalities. 9.The appellant’s prayer before this Court is that the appeal and the appellant’s claim be allowed, the order of costs made by the 1st appellate court be set aside, and that the appellant be awarded costs of this appeal and in the 1st appellate court. 10.In the written submissions dated 4th March 2025, the appellant urged that it was evident from the amended plaint that the claim was against the two respondents herein, who further jointly denied the claim in their statement of defence. That writing the word ‘defendant’ instead of ‘defendants’ in the amended plaint neither prejudiced the respondents nor made the issues irrelevant. He contended that the trial court did not deviate from the substantive issues in question because the parties’ intention could be discerned from the pleadings and at the hearing. That the 1st appellate court erred in interfering with the decision of the trial court on the basis that some paragraphs in the amended plaint referred to a single defendant. 11.Regarding proof of special damages, the appellant cited the case of Jackson K. Kiptoo v Attorney General (2009) KECA 455 KLR, in which this Court affirmed that the required degree of certainty and particularity of proof depends on the nature of the acts complained of. The appellant noted that he hired an alternative motor vehicle and produced 13 receipts from Chake Courts & Investment for 6 days' car hire, running from 27th June, 2014 to 15th September, 2014, as shown at pages 174 to 181 of the record of appeal. That he also produced receipts he issued to Hotel Storm Ltd for payments made to him after rendering the services. He argued that no evidence was adduced to demonstrate that the expense was not incurred, or to object to the production of the receipts. That the learned Judge introduced the issue while interfering with the trial court’s decision. Therefore, rejecting the receipts produced in court without objection on the ground that the registration number of the motor vehicle hired from a third party is not stated in the receipt would be tantamount to visiting an injustice on an innocent party. (See Charles Kipkoech Leting vs. Express (K) Ltd & another (2018) KECA 187 (KLR). 12.The appellant further submitted that Article 159(2) (a) (b) and (d) of the Constitution of Kenya, as read with the overriding objectives in Sections '1A' and 'IB' of the Civil Procedure Act and Section 3A and 3B of the Appellate Jurisdiction Act, allow the court to do substantive justice without undue regard to technicalities of procedure. That in exercise of its judicial discretion, the court has to weigh the prejudice likely to be suffered by the innocent party against the prejudice to be suffered by the offending party. 13.The respondents’ submissions are dated 16th April, 2026. It is submitted that the issues of law for consideration by this Court concern the special damages and the admissibility as well as probative value of required evidence. The respondents argued that it is trite law that parties are bound by their own pleadings and therefore barred from going beyond the pleaded case. That the appellant ought to have therefore proved the payment of Kshs. 925,000/= in addition to specifically pleading the same. That although the bundle of receipts produced by the appellant were not objected to, the 1st appellate court appreciated that the same were admissible in evidence but lacked probative value. The respondents relied on the decision of the court in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR, in which it was held that mere admission of a document in evidence as an exhibit does not amount to its proof, and that when the court is called upon to determine whether a document has been proved or disproved or not proved, it considers all facts and evidence on record and not merely look at the document alone. 14.This appeal came up for hearing before us on 20th April, 2026. Learned counsel Mr. Bosire Gichana appeared for the appellant. He relied on the appellant’s written submissions and highlighted that the issue of special damages was proved contrary to the learned Judge’s findings. He urged this Court to consider a sample receipt issued to the appellant in the record of appeal. He noted that the receipt contains details of the person offering the services, the person who paid for the services, the purpose for car hire for 6 days, is duly signed and has a revenue stamp. He argued that not including the vehicle’s registration number in the receipt was not crucial, and even then, the receipt, having been issued by another person, should not be visited upon the appellant. In addition, counsel argued that it is trite law that the Appellate Court will not interfere with matters of fact unless the court took into account matters that were not necessary, or that ought not to have been taken into account. That it is a point of law that the superior court interfered with the discretion of the learned magistrate to accept the use of ‘defendant’ as referring to both respondents. 15.On the other hand, learned counsel Mr. Mulisa appearing for the respondents relied on the respondents’ written submissions and urged that being a second appeal, this Court should confine itself only to issues of law, a position that we consider is well settled and was not contested. While reiterating the respondents’ submissions dated 16th April, 2026, counsel submitted that the appellant should have gone further to call the maker of the bundle of receipts to prove their authenticity and probative value. 16.We have considered the parties’ respective submissions. Our jurisdiction on a second appeal is strictly limited to questions of law only. The Court cannot re-evaluate, re-assess, re-examine findings of fact unless the lower courts’ factual determinations were completely perverse or made without any supporting evidence. In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR the Court of Appeal firmly held that in a second appeal we have to resist the temptation of delving into matters of facts. Bearing in mind that principle, we proceed to determine the issues in the present appeal. 17.The first issue before us for determination is whether the 1st appellate Court erred in law and misdirected itself fundamentally in holding that special damages were not proved with certainty, particularly that the registration number of the motor vehicle was not stated in the receipt. The 1st appellate court addressed the issue by stating as follows;“ 29.Turning to the issue of whether the respondent proved his claim, the respondent testified that he spent Kshs. 925,000/= for car hire services when his vehicle was illegally impounded. He produced receipts that had been issued to him by Chake Courts & Investment totalling to Kshs. 925,000/= to support his claim. The production of the receipts was not opposed by the appellants. The respondent was however unable to give details of the car he had hired. On being prodded during cross examination, the respondent stated that the registration number of the vehicle was included in his documents. Having perused the documents produced by the respondents before the trial court, I found no details of the vehicle the respondent claimed he had hired. For this reason, I find that the respondent failed to specifically prove his claim for damages.” 18.The learned Judge relied on this Court’s decision in Richard Okuku Oloo –Vs- South Nyanza Sugar Co. Ltd (2013) eKLR that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity. Further, the degree and certainty must necessarily depend on the circumstances and nature of the act complained of. In the instant case, the appellant claimed Kshs. 925,000.00 incurred in alternative car hire being loss and damage suffered when the appellant’s motor vehicle registration No. KBD 724W was attached and released on 12th September, 2014 by and at the instance of the respondents. 19.We consider that the base upon which the claim was founded was that the appellant had hired an alternative car because his motor vehicle he would have otherwise used in his business had been detained in the execution process that was subsequently found to be unlawful. It therefore falls that in view of the nature of the claim and the circumstances, to satisfy the necessary degree of certainty and particularity of pleading and proving the claim, the appellant claiming special damages for car hire payments was required to specifically plead that he hired the alternative car and strictly prove the payments made with documentary evidence (such as matching hire agreements or payment receipts) so as to succeed. We find that the claim was proved on a balance of probability with respect to the pleaded case that the appellant hired the alternative motor vehicle as was alleged in the plaint, taking into account the testimonies and receipts or the documents that were admitted in evidence at the trial. 20.In particular, and as submitted for the appellant, the issue of the registration number of the motor vehicle did not feature anywhere in the pleadings and submissions. Instead, the record shows that the appellant produced before the trial Court the relevant receipts which showed that indeed the appellant had paid the amount of money that was claimed. The record shows that the receipts were produced and admitted in evidence by the trial Court without an objection on the part of the respondents. Accordingly, the 1st appellate court went astray in law in finding that the appellant had not proved the claim for want of the particulars of the car that was hired on the receipts that the appellant had relied upon to urge the claim for special damages in circumstances that there was no objection to production and admission of the receipts. We are satisfied that the respondents failed to show the legal basis upon which it was urged that the documents and testimonies carried no evidential probative value and that the claim for recovery of car hire fee could not fail on appeal merely because the receipts lacked a registration number. The receipts had been admitted into evidence at the trial without objection that the receipts had not been validly proved and testimony was taken about the expenses that were incurred by the appellant. The 1st appellate as such was precluded from entertaining technical objections to the form of the evidence because the objection had not been raised at the earliest opportunity during the trial. To that extent the respondents must be held to have therefore waived such objections, if any, about the mode of proof of the receipts. The submission for the respondents that the makers of the receipts ought to have been called cannot be entertained as it is barred as belated and duly waived. 21.Thus, the Supreme Court of India in R.V.E. Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P. Temple {(2003) 8 SCC 725] held as follows“…. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: - (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.” 22.We therefore find this ground of appeal to have merit. 23.The next issue for determination is whether the 1st appellate court erred in law and misdirected itself fundamentally in holding that the failure by the appellant to state in the plaint from whom between the two respondents he was specifically seeking damages was fatal as to render the appellant's claim ambiguous. We consider the issue to be intertwined with the appellant’s ground of appeal that the 1st appellate court failed to do substantive justice by giving undue regard to procedural technicalities. In the amended plaint, the appellant prayed for judgment against “…the Defendant for: ….” The learned judge considered the wording and found as follows;“ 27.As a general rule, pleadings should be clear enough to enable the other party know the case he has to meet. It was held in Bethwell Allan OmondiOkal v Telkom (K) Ltd (Founder) & 9 others Civil Appeal 191 of 2014 [2017] eKLR that, “Pleadings are not just a formality; they are essential in order to frame issues for the determination by the court and to enable the parties know exactly what case they are expected to meet.” 28.The respondent’s claim for loss of user was specifically pleaded and explicitly set out in his plaint. I however note that the amended plaint was not clear as to whom between the two defendants the plaintiff was seeking damages. This error was fatal as it rendered the respondent’s claim ambiguous.” 24.We observe that earlier in the Judgment, the 1st appellate court had considered the holding in Kuronya Auctioneers v Maurice O. Odhoch & Anor [2003] eKLR cited in support of the argument that the respondent had a right of recourse against both the auctioneer and the decree holder, and, had further considered National Bank of Kenya Ltd v Joly Family Stores & another [2005] eKLR where it was held;“The ratio decidendi of the Simiyu case is that if the execution is levied against a wrong party that party has a right of recourse against the auctioneer as well as the decree-holder despite the protection given to the auctioneer by Section 6 of the Judicature Act and that such recourse is at common law.”The 1st appellate court had then, correctly so in our view, concluded that the appellant was entitled to institute the suit against both the auctioneer and the party instructing the auctioneer (decree holder) in the execution process as had been done by the appellant. 25.We therefore find that there was no fatal ambiguity in the manner the appellant framed the final prayer in the amended plaint. The amended plaint in its substantive paragraphs was elaborate that the claim was against both respondents in their capacities as auctioneer and instructing decree holder in the impugned execution process. As submitted for the appellant, such was an excusable technicality in view of Article 159(2) (a) (b) and (d) of the Constitution of Kenya, as read with the overriding objectives in sections '1A' and 'IB' of the Civil Procedure Act and, section 3A and 3B of the Appellate Jurisdiction Act which require the courts to do substantive justice without undue regard to technicalities of procedure. 26.We are further satisfied that the appellant substantially complied with the provisions of Order 2 of the Civil Procedure Rules on formalities of pleadings generally as well as with Order 1 rule 3 of the Civil Procedure Rules which provides;“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 27.The effect is that where defendants are joined, the court has the authority to grant relief or judgment for or against one or more of the joint parties. Accordingly, it is our view that the court does not have to dismiss the suit just because the prayers are poorly drafted but the court can tailor the judgment based on the evidence presented and the claims substantiated in the body of the plaint. 28.We also take the view that a pleading should be interpreted holistically so that if there are two or more defendants and the substantive paragraphs of the plaint clearly outline distinct grievances, causes of action, or allegations against each specific defendant, the court will rely on those substantive paragraphs to understand who the plaintiff is actually targeting with respect to the claimed reliefs. 29.Section 3 (4) of the Interpretation and General Provisions Act, provides;“In every written law, except where a contrary intention appears, words and expressions in the singular include the plural and words and expressions in the plural include the singular.” 30.It should be obvious that the use of “defendant” in plaints or pleadings generally flows from the word “defendant” as used in the Civil Procedure Act and the Civil Procedure Rules. It therefore follows that in civil pleadings, singular words are presumptively interpreted to include the plural (and vice versa) unless the context clearly indicates otherwise. 31.Thus upon proper interpretation, by the use of “defendant” in the conclusive wording of the reliefs the appellant prayed for in the amended plaint, there resulted no fatal ambiguity and the 1st appellate court misdirected itself to that extent, especially in the circumstance that it had already found in the impugned judgment that the appellant was entitled to sue both respondents and the plaint had been elaborate in that respect. 32.The appeal will as well succeed upon the two intertwined grounds. We have found that the appeal is merited. In the premises, we allow the appeal; set aside the judgment and decree of the 1st appellate Court with costs to the appellant; confirm the judgment and decree of the trial court delivered and given on 7th December 2018. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA…………...... JUDGE OF APPEALE. C. MWITA…………...... JUDGE OF APPEALB. ONGAYA…………...... JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR