https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7485

Kenfreight (Ea) Limited v Reibel SA (Civil Suit 120 of 2014) [2026] KEHC 7485 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7485 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit 120 of 2014 DKN Magare, J May 28, 2026 Between Kenfreight (Ea) Limited Plaintiff and Reibel SA Defendant Judgment 1.The Plaintiff instituted this suit vide the Plaint dated 14.09.2014 seeking the following reliefs:a.The sum of $133,845.91.b.Interest thereon at court rates till the date of payment in full.c.Costs of and incidental to this suit. 2.It was averred that the Plaintiff was from time to time engaged by the Defendant to provide to the Defendant logistics and transport and logistical services for in bound cargo off loaded at the Port of Mombasa and destined to various parts of Kenya and East and Central Africa including South Sudan. 3.It was pleaded in the Plaint that sometime in the year 2013, the Defendant contracted the Plaintiff to provide logistic and transport services for forty-one (41) Twenty Feet (20') Containers to Juba, South Sudan which included inter alia, hiring of Generator Sets for each truck and providing the fuel requirements for these generator sets. 4.The Plaintiffs’ claim against the Defendant is for US$133,845.91 being the monies due and owed to the Plaintiff on account of services rendered by the Plaintiff to the Defendant during the year 2013. 5.The Defendants entered appearance and filed a defence and counterclaim dated 27.10.2021 denying the averments in the plaint. In particular, the Defendant admitted to contracting the Plaintiff to provide logistic and transport services for 41 containers twenty feet each to Juba, South Sudan. Any further eventual costs and disbursement were to be settled by the Defendant upon the Plaintiff presenting invoices supported by documentation. 6.By way of counterclaim, the Defendant pleaded as follows:a.The Plaintiff issued to the Defendant invoices CF-13-03284 for the sum of US $ 29,520.00, and CF-14-00952 for the sum of US $ 90,000.00 in respect of alleged incidental costs for logistics and transportation services for the forty-one (41) twenty feet (20') containers to Juba, South Sudan.b.The Plaintiff issued several credit notes to the Defendant for the sum of US $ 163,075.00. The credit notes were as follows:CN-14-00216 (US $ 21,840.00)CN-14-00050 (US $ 3,840.00)CN-13-00519 (US $ 317,000.00)CN-13-01095 (US $ 395.00)c.The Defendant avers that as a result of the above, the Plaintiff is indebted to the Defendant by sum of US $ 51,235.00 which it now prays for against the Plaintiff.d.The Defendant thus counterclaimed for:-i.The sum of US $ 51,235.00;ii.Interest thereon at court rates from the date of filing the Original Action until payment in full;iii.Costs of and incidental to this suit; andiv.Any other or further relief which this Honourable Court deems fit to grant. Evidence 7.PW1 was Lemmy Kimathi. He relied on his witness statement dated 9.11.2022. He also produced the documents in the Plaintiff’s list and bundle of documents dated 15.9.2014 and supplementary list dated 9.11.2022. The Plaintiff produced and relied on the following documents:a.Invoice No. CF-14-00952 dated 19th March, 2014 for US $. 90,000.00 together with a bundle of emails.b.Invoice No. CF-14-01405 dated 9th May, 2014 for US $. 1,609.00 together with a bundle of documents.c.Invoice No. CN-13-00392 dated 2nd August, 2013 for US $. 100.00.d.Invoice No. CF-14-00258 dated 23rd January, 2014 for US $. 12,380.00 together with a bundle of documents.e.Invoice No. CF-14-00460 dated 10th February, 2014 for US $. 252 together with a bundle of documents.f.Invoice No. CF-14-00901 dated 13th March, 2014 for US $. 5,406.84 together with a bundle of documents.g.Invoice No. CF-14-01161 dated 8th April, 2014 for US $. 110.00 together with a bundle of documents.h.Invoice No. CF-14-01461 dated 15th May, 2014 for US $. 16,957.47 together with a bundle of documents.i.Invoice No. CN-14-00244 dated 22nd May, 2014 for US $. 450.00.j.Invoice No. CN-14-00216 dated 14th May, 2014 for US $. 21,840.00 together with a bundle of documents.k.Invoice No. CF-13-03284 dated 25th November, 2013 for US $. 29,520.00 together with a bundle of documents.l.Copies of the correspondence and copy correspondence (e-mail) exchanged between the parties.m.Copy of statements of account of Kenfreight (EA) Limited in respect of Reibel S.A. and invoices relating thereto.n.Copy of transfer instructions advice from the defendant’s bankers showing remittance of the sum of US$90,357.06 by the defendant to the plaintiff. 8.It was his stated case that in 2013, the Defendant contracted the Plaintiff to provide logistic and transport services for forty-one 20 ft containers to Juba. The contract stipulation included hiring generator sets for each track and providing fuel for the generators. The Plaintiff fulfilled this bargain in January 2014. The Plaintiff completed the work but the Defendant declined to pay for the services. 9.The claim is for a total of US$ 126,165.91 as per the invoices and credit noted produced in court. 10.On cross examination, it was his case that there was no reference to track. The Plaintiff waited for the defendant to make approvals. All invoices were to be settled. 11.It was his further case that UNMIS did not guarantee payment for reference. He could not confirm who approved the referrals. 12.The difference in US $ was 137,000 and the balance was US $ 618,199. US $ 54000 and US $ 36000 was for truck detention charges and there were 180 delay days. 11 trucks were stranded. It was his testimony that there was no signed agreement between the parties. There were no agreements on demurrage but the same was shared by email. There was no prayer for demurrage. 13.There were also storage charges in respect of KPA but there was no agreement that the same could be settled by the Defendant. 14.In reexamination, PW1 testified that the claim was for US $ 133,845.91 for services rendered to MV Reibel S.A. 15.DW1 was Nathalie Geschier. She was the Chief Executive Officer of the Defendant. She adopted and relied on her witness statement dated 27.10.2021. She also produced documents in her filed list of documents dated 11.11.2021. 16.On cross examination, it was her case that she had been transacting with the Plaintiff company since 2011. According to her, the Plaintiff delivered forty one twenty feet containers from Mombasa to Juba at an agreed cost of US $ 280,850. 17.The Plaintiff raised invoices totaling US $ 421,690 and passed credit notes totaling US $ 140,840. Subsequently, the Defendant paid US $ 280,850 but the Plaintiff raised further invoices for further costs alleged to be incurred in transportation, of US $.331,900. 18.She testified that the Defendant had paid all dues and even paid more. The only one issue was with genset, fuel costs, and levy charges. The Defendant was in agreement with the number of invoices that the Plaintiff raised. 19.She testified that the Defendant did not indicate in the wire transfer which invoices they were paying. They did not inform the Plaintiff of the excess of US $ 850. 20.It was true from the Plaintiff’s list that they had paid US $ 493,190. She testified further that some payments were made after this suit was filed. The Plaintiff did not give a satisfactory explanation for each of the invoices. They were to settle whatever was genuine. They had paid too much for the invoices. They overpaid by US $ 137,000. They paid invoices except ones dated 19.3.2014 and 19.5.2014. 21.Further, it was her case that the responsibility was with the Plaintiff to organize transport from Mombasa to Juba. Submissions 22.The Plaintiff filed submissions dated 1.10.2025. They submitted that there was no formal agreement but agreements through a series of emails and approvals. They transported 41 20-feet container from Mombasa to Juba, South Sudan. This was for gensets, delays, fuel charges and others as per instructions and approvals. They completed the task. The defendant kept asking for time to pay only to later communicate that something happened and the order disappeared. There was no payment for a sum of US $ 133,845.91. The defendant indicated that they had paid a sum of US $ 280,850 and at the same time stated that they required supporting documents. They again stated that they paid in excess and proof of particulars. It was submitted that the defendant’s witness admitted that US $ 90,000 was not paid since they had already paid too much. They thus appeared to suggest that a sum of US $ 43,845.91 was the only one in contention. 23.They submitted that the invoices were totaling to US $ 755,199.60 out of which a sum of US $ 184,660 and US 7,680 $ US $ 91,609.60 was addressed by the defense. A total sum of US $ 473,190 was paid and credit for US $ 190,400 given leaving a sum of US $ 473,190. After payment a sum of US $ 126,165,91 remains unpaid to date. They relied on the case of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] KECA 870 (KLR), where the court of appeal [Maraga, Azangalala & Kantai, JJ. A)] held as follows:This Court in Independent Electoral and Boundaries Commission & Anor v Stephen Mutinda Mule & 3 others (supra) cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) Limited v Nigeria Breweries PLC SC 91/2002 where Pius Adereji, JSC expressed himself thus on the importance and place of pleadings:... it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.The judges in that case also stated:In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. 24.The plaintiff submitted that the defence witness departed and contradicted their evidence and such should be disregarded. Further reliance was placed on the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR). 25.They also relied on a persuasive case of Mombasa Civil Case No. 87 of 2013 - Ngobi v Kenya Ports Authority & others (Civil Case 87 of 2013) [2023] KEHC (KLR), where the court held as follows:A party is bound by its pleadings. Upon the removal of the 1st Defendant as a party, the Plaintiff was under duty to establish a clear cause of action against the 2nd and 3rd Defendants. The Plaintiff pleaded that the consignment was placed with KPA and the 3rd Defendant and his submissions did not link the 2nd Defendant to any fault as to allege negligence or breach of statutory duty or contract. The Plaintiff was thus bound to plead the manner in which the 2nd Defendant was to blame which he failed. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: -11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. 26.They also relied on the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR), where the Court of Appeal [Akiwumi, J. A], stated thus:The words of Jessel M.R. on this issue are the following:When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given. 27.The court in the above case continued as follows:In the subsequent appeal to this court, it was held that a mere denial is not a sufficient defence in the type of action that had been brought against the defendant. In the judgment of this court delivered by Platt, J. A. as he then was, it is clearly stated as follows:First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.Thus is Maguga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). 28.Further reliance was made on the case of Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others [2014] eKLR. It is already cited in the above paragraph. 29.The defendant filed submissions dated 20.11.2025. They raised three issues, that is:a.Whether the plaintiff’s claim has been pleaded and particularized on account of breach of contract.b.Whether the plaintiff pleaded and proved specials damages.c.Whether the defendant proved its counter claim. 30.It was the defence’s position that particulars of breach are essential. They submitted that it is only three trucks that were authorized for fuel and genset. They averred that there were no documents for the 8 out of 11 trucks. Reliance was placed on the case of Almasi Bottlers Ltd v Kiboi (Civil Appeal E094 of 2023) [2025] KEHC 7233 (KLR), where A. Ong’injo, J held as follows:Thus, a breach of contract occurs when without legal justification, one party to the contract ignores, refuses to fulfill or fails to meet any provision of a written or verbal contract. 31.They also relied on the cases of Jackline Njeri Kariuki v Moses Njung’e Njau [2021] KEHC 4818 (KLR), where G.W.Ngenye-Macharia J, as she then was, held as follows:45.In my understanding, a breach of contract is committed when a party, without lawful excuse, fails or refuses to perform what is due from him under the contract, or performs defectively, or incapacitates himself from performing. The Appellant failed to ensure quiet possession of the motor vehicle by the Respondent and in so doing breached the terms of the contract. 32.It was the defence submission that the terms of the contract were not provided and were not proved. They relied on the case of Hydro Water Well (K) Limited v Sechere & 2 others (sued in their representative capacity as the officers of Chae Kenya Society & 2 others (Sued in their representative capacity as the officers of Chae Kenya Society) [2021] KEHC 22 (KLR), where JM Mativo, J, as he then was, held as follows:To successfully claim damages for breach of contract, the plaintiff had to show that a contract was in existence, that the contract was breached by the defendant and that the plaintiff suffered damage (loss) as a result of the defendant's breach. The plaintiff was not required to show a causal link between the breaches of an agreement and the damages with certainty. He was only required to establish that the wrongful conduct was probably a cause of the loss. A plaintiff who at the end of a trial can show no more than a probability that he would not have suffered the loss if the contract had been properly performed, would succeed unless the defendant could discharge the onus of proving that there was no such probability.[disambiguation mine]. 33.On the question whether special damages were pleaded and proved, they submitted that the special damages were neither pleaded not proved. They relied on the case of Coast Bus Service Limited v Murunga & others, Nairobi CA No.192 of 1992 (UR):It is now trite law that special damages must first be pleaded and then strictly proved. There is a long line of authorities to that effect and if any were required, we would cite those of Kampala City Council v Nakaye [1972] EA 446, Ouma v Nairobi City Council [1976] KLR 297 and the latest decision of this Court on this point which appears to be Eldama Ravine Distributors Limited and another v Chebon civil appeal number 22 of 1991 (UR). In the latest case, Cockar JA who dealt with the issue of special damages said in his judgement:It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v Nairobi City Council [1976] KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages. Chesoni J quoted in support the following passage from Bowen LJ's judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage:The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry. 34.On specials they posited that for special damages to be awarded, they must be specifically pleaded and also strictly proved as held in the case of Maritim & Another –v- Anjere (1990-1994) EA 312 at 316 in this regard:It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed. 35.Further reliance was placed on the case of Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR), where the court of appeal [A.B. Shah)] posited as follows:The learned judge exercised his discretion in not allowing the amendment. Whilst exercising such discretion he said he was not satisfied as to the bona fides of the plaintiffs. I think he was right. The plaintiffs could have and must have or at least ought to have known the exact measure of their damages at the time they filed suit. Why did they not tell their counsel of the loss? Is it because they wanted to avoid paying court fees on the sum of shs.8,652,438/= as the learned judge has himself asked during the course of the arguments before him?The learned judge was also, in his discretion, entitled to refuse the amendments when it was not shown precisely how the sum of shs.8,652,438/= was arrived at and when such damage was suffered? It was the plaintiffs' duty to make a full disclosure of reasons for their failure to earlier plead the special damages rather than go on seeking amendments as and when they were hit by the force of defendant's arguments on their want or lack of proper pleadings. 36.They submitted that invoices were listed but not proved. On the counterclaim they set out invoices that were contested as from (vii) to (xiii). They submitted that it was agreed that a sum of US $ 663,590 was agreed by both sides as paid. A sum of US $527,140 was said to be due. A sum of US $136,450 was overpayment. However, a sum of US $ 51,235 had been reconciled at the time of filing suit. Analysis 37.There is only one issue herein, that is, how much is due to either of the parties. The plaintiff claimed for a sum of US $ 133,845.91 while the defendant claimed for a sum of US $ 51,235. 38.The burden of proof was on the Plaintiff to ascertain the allegations in the plaint. The defendant also had the burden of proving the counterclaim, since whoever asserts in the positive must prove. The court is aware that the burden of proof is set out in sections 107-109 of the Evidence Act:107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 39.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows: -In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred. 40.The degree on a balance of probabilities must carry reasonable probability but not so high as in criminal cases. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 41.A party has a duty to prove matters within their knowledge. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession. 42.There is no form of contract required to be entered into. The parties had their own version of contracts. It is not the duty of the court to amend contracts or relieve parties of their contracts. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), the court of appeal[Tunoi, Shah & Keiwua JJ A] stated as follows regarding the sanctity of contracts:A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported):It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain. 43.The plaintiff posited and shared a myriad of emails, that they transported for the defendant 41 containers each 20 feet from the Port of Mombasa to Juba. The tragedy is that the matters now raised by the defendant in their submissions were not raised in the pleadings. The submissions are beautifully written but they are neither evidence nor pleadings. 44.Mwera J, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 it was stated as doth:Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case. 45.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, where the Court held that:As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable. 46.The Court of Appeal was more succinct, that Submissions cannot take the place of evidence, when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ marketing language, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented. 47.Therefore, the court shall ignore issues that are only raised in submissions. The second issue is the question raised by the defendant regarding special damages. Special damages must be both pleaded and proved before they can be awarded by the Court. In the case of Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR, the court, Justice Luka Kimaru, as then he was, stated as doth; -In regard to special damages the law is quite clear on the head of damages called special damages. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves. 48.The reason pleadings are filed and exchanged in advance of the court hearings is to enable parties give their all - in terms of prosecuting or defending the suit so that no party is got unawares of the assertion by the other, that may emerge in evidence when in fact were not part of the pleadings. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled The Present Importance of Pleadings published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called Any Other Business in the sense that points other than those specific may be raised without notice. 49.The question then is whether the claim was for special damages and whether the plaintiff failed to specifically plead and prove special damages. However, from the reading of the matter, this was not a claim for special damages. It was a claim for payment of consideration. There was no breach pleaded by both sides. The plaintiff pleaded that they performed their part of the bargain. They also forwarded invoices. There is no part of the contract that is unperformed. The only part remaining is settlement of the consideration. The invoices that were unpaid were set out specifically and traversed by the defendant. 50.The Plaintiff particularly succeeded in proving that the invoices were presented but not fully settled. The Defendant’s allegation that some invoices were not settled because there were overpayments was not supported by evidence. 51.Whether the defendant owes the money, it is up to them to show that they challenged the invoices they received, or paid. All invoices were sent and acknowledged. The plaintiff stated that a sum of US $ 133,845.91 was unpaid. At least the defendant acknowledged the sum of US$ 90,000 was not paid. The other invoices for US $ 36,165.91 is the only amount that the court needs to deal with. 52.However, from the evidence, the net claim should be US $ 126,165.91 and not US $ 133,845.91. 53.On whether any sum is due, in the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR), the Court of Appeal Akiwumi, J. A, stated thus is relevant:The words of Jessel M.R. on this issue are the following:When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.…In the subsequent appeal to this court, it was held that a mere denial is not a sufficient defence in the type of action that had been brought against the defendant. In the judgment of this court delivered by Platt, J. A. as he then was, it is clearly stated as follows:First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given. 54.This kind of claim is a liquidated claim and not an action for special damages or breach of contract. A liquidated demand is dependent on the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. There must be evidence of payment or actual reason why a debt is not due. 55.When a liquidated demand is made, then the defendant has a duty to show payment. In the case of Magunga General Stores vs. Pepco Distributors Ltd. [1987] KLR 150; [1988-92] 2 KAR 89 [1986-1989] EA 334, where the court of appeal held as follows:“Mere denial is not a sufficient defence in a claim for breach of contract for goods sold and delivered and cheques issued in settlement thereof. There must be a reason why the defendant does not owe the money. Either there was no contract or it was not carried out or failed. It could also be that payment had been made and could be proved. It is not sufficient therefore to simply deny liability without some reason given.” 56.Therefore, I dismiss the allegations that the claim herein was for special damages. It was a liquidated claim for which the defendant had a duty to show payment. 57.The Plaintiff’s position is that they wholly fulfilled its part of the bargain but the defendant declined to settle the invoices as presented. The credit notes were agreed to be deduced and were deducted leaving a sum of US $ 126,165.91. This was arrived at as follows:a.US $ 755,199.60 total invoices1.US $ 473,190 payment2.US $ 190,400 creditsb.Total payment and credits -US $ 663,590c.Subtotal US $ 111,609.60 58.This leaves a deficit of US $ 14,556.91 from the figures addressed in the main pleadings. Was the sum of US $ 14,556.91 proved? This were part of the charges that were allegedly not agreed upon. The specific amounts should be specifically defined. The court cannot look at figures thrown to it. While addressing the question of special damages, which can also apply to the liquidated claim in the case of David Bagine V Martin Bundi [1997] KECA 54 (KLR), the Court of Appeal [E. Gicheru, A.B. Shah and G. S. Pall], posited as follows:It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter 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 damage, 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 have lost, I ask you to give me these damages.' They have to prove it" 59.The Defendant maintained that although there were invoices that were indeed not settled, the same was true because the Defendant had in fact made overpayments to the Plaintiff. The Defendant did not dispute that it was the duty of the Defendant to settle any further costs and disbursements similar to hiring generator sets for each truck and providing fuel requirements for the generator sets upon presentation by the Plaintiff of invoices and support documents. I note from the documents produced in court that the Plaintiff raised the appropriate invoices and defendant raised credit notes. The credit notes debited the account and reduced the amount payable. There has been no explanation why a sum of US $ 126,165.91 is due and owing. If the defendant wished to impeach any line of the invoices, they should have done so. They cannot throw to the court the miscellaneous charges and wish the court to fish them. 60.The invoices were not fully settled. A sum of US $ 126,165.91 is due and owing. DW1 in her testimony did not dispute the invoices and the application of the credit notes. Her case was that the invoices were raised and paid and there was even an excess payment of which the Defendant had claimed in the counterclaim. 61.The Defendant also contended that there were invoices which were indeed not paid since there was already an excess that needed reconciliation. This emerged not in the defence but in testimony of DW1 and in the counterclaim in which the Defendant posited that the Plaintiff had not settled the Defendant’s incidental costs for logistics and transportation services of US $ 90,000 as well as credit notes of US $ 163,075. 62.Where evidence is produced that is not parity with pleadings, the same is not to be used to vary pleadings. Pleadings that go to trial are the rock-solid foundation of the claim. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’ 63.The Defendant however counterclaimed for only US $. 51,235 despite pleading in the defence that it was its role to settle incidental costs provided invoices and support documents were furnished. Parties are bound by their pleadings and no testimony that would be at variance with the pleadings could be upheld. This would be by way of a public auction. The parties are bound to plead their cases fully. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima J, stated as doth:11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. 64.It not in dispute that the Plaintiff performed its part of the bargain under contract. The duty was on the Defendant to demonstrate that the alleged payment of US $ 280,850 constituted the entire claim due to the Plaintiff. Whereas the Plaintiff prayed for US $ 133,845.91 as the owing amount, they proved a sum of US $ 126,165.91. Defendant failed in proving that they had settled the said amount. 65.If the Defendant had made overpayments, it was in its case to prove that the said excess was over and above the invoices owed to the Plaintiff and was as such not payable. Payments were on order and the Defendant could not be said to have made excess payments while admitting that some invoices issued by the Plaintiff were not paid. In this regard, Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. 66.The parties were bound by the contract. It was not in dispute that the contract existed and was performed. The court cannot vary what the parties agreed and was admittedly fulfilled. This court cannot rewrite a contract that never existed between the parties. Where this court finds elements that constitute a contract, the court has no authority to found no contract for this would amount to the rather unacceptable rewriting of the contract between the parties, and which is an absurdity. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows: -A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. 67.Parties to a contract are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. In Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that: -We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. 68.On the basis for the foregoing, the Plaintiff proved its case on a balance of probabilities. The Defendant on the other hand failed to prove its counterclaim and the same fails while the Plaintiff’s suit succeeds. 69.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 70.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 71.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that costs follow the event: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 72.Costs follow the event. I see no reason not to award the Plaintiff costs. The plaintiff shall have costs of US $. 1,422. Determination 73.In the upshot, I make the following orders:a.Judgment is entered for the Plaintiff for the sum of US $ 126,165.91.b.The Defence and Counterclaim are dismissed.c.Interest on US $ 126,165.91 from 28.05.2020, being a period of 6 years in line with section 4(4) of the Limitation of Actions Act.d.The Plaintiff shall have the costs of the suit assessed at US $. 1,422.e.30 days stay of execution.f.14 days right of appeal. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Ondego for the PlaintiffMrs. Akwana for the DefendantCourt Assistant – Martin