[2021] KEHC 2573 (KLR)
The court held that, despite interlocutory judgment having been entered against the defendants for failure to file appearance or defence, the plaintiffs are still required to strictly prove special damages claimed. The documents submitted by the plaintiffs in support of special damages were illegible, making it...
Source-derived case information.
- Citation
- [2021] KEHC 2573 (KLR)
- Parties
- Plaintiff: Mary Nungari Ndurungi; Plaintiff: Denis Ndinu Ndurungi (suing as the legal representatives of the Estate of Alex Karanja Ndung’u, Deceased); Defendant: Paul Ndung’u; Defendant: Simon Wamwaki Ithuthu; Defendant: Paul Ng’ang’a Ngugi; Defendant: Joseph Kinyanjui Kuria; Defendant: Lilian Njoki Muhoro
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2 of 2020
- Procedural Posture
- Civil Case / Ruling on Proof of Special Damages After Interlocutory Judgment
- Outcome
- Ruling deferred; plaintiffs required to supply legible documents to prove special damages before judgment can be prepared.
- Judges
- MM Kasango
- Legal Topics
- Default Judgment, Special Damages Proof, Formal Proof, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nungari Ndurungi
Plaintiff
Denis Ndinu Ndurungi (suing as the legal representatives of the Estate of Alex Karanja Ndung’u, Deceased)
Plaintiff
Paul Ndung’u
Defendant
Simon Wamwaki Ithuthu
Defendant
Paul Ng’ang’a Ngugi
Defendant
Joseph Kinyanjui Kuria
Defendant
Lilian Njoki Muhoro
Defendant
Procedural Posture
Civil Case / Ruling on Proof of Special Damages After Interlocutory Judgment
Legal Issues
- 1 Whether the plaintiffs have proved their claim for special damages as required by law.
- 2 Whether illegible documents can suffice as proof of special damages.
Ratio Decidendi
The court held that, despite interlocutory judgment having been entered against the defendants for failure to file appearance or defence, the plaintiffs are still required to strictly prove special damages claimed. The documents submitted by the plaintiffs in support of special damages were illegible, making it impossible for the court to determine whether the claim for special damages had been proved as required by law. The court reiterated that it is not enough for a plaintiff to merely list particulars of loss; the loss must be strictly proved with clear and legible evidence. As such, the court could not proceed to judgment on special damages until legible documents are supplied.
Court Disposition
Ruling deferred; plaintiffs required to supply legible documents to prove special damages before judgment can be prepared.
Orders
- Plaintiffs to state whether legible documents proving special damages will be supplied to the court to enable preparation of judgment.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVIL CASE NO. 2 OF 2020
BETWEEN
1. MARY NUNGARI NDURUNGI
2. DENIS NDINU NDURUNGI(suing as the legal representatives of the Estate of)
ALEX KARANJA NDUNG’U (DECEASED)...................................PLAINTIFFS
VERSUS
PAUL NDUNG’U.......................................................................1ST DEFENDANT
SIMON WAMWAKI ITHUTHU.............................................2ND DEFENDANT
PAUL NG’ANG’A NGUGI......................................................3RD DEFENDANT
JOSEPH KINYANJUI KURIA.................................................4TH DEFENDANT
LILIAN NJOKI MUHORO.....................................................5TH DEFENDANT
RULING
1. The plaintiffs filed this claim against the five defendants who failed to file their appearance or defence within the prescribed time. Indeed, none of those documents have so far been filed by the defendants.
2. On the plaintiffs’ application, interlocutory judgment was entered against the defendants on 10th February, 2021 for the default of filing an appearance and defence.
3. The plaintiffs formally proved their case on 20th September, 2021. Today, this Court was expected to deliver its judgment. Judgment has however not been prepared in this matter because the documents the plaintiffs rely upon in proof of special damages are illegible. This Court is unable to determine whether the plaintiffs have, as required proved the claim for special damages. The requirement was restated in the case JACKSON MWABILI VS. PETERSON MULELI (2020) eKLRas follows:-
“37. And in DAVID BAGINE V MARTIN BUNDI(283 of 1996) [1997] eKLR, the Court of Appeal, referred to the judgment byLord Goddard CJinBONHAN CARTER V HYDE PARK HOTEL LIMITED[1948] 64 TLR 177),and again observed that:-
‘It is trite law that the Plaintiff must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note 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.’”
4. At the reading of this Ruling, the plaintiffs will be required to state whether legible documents proving special damages will be supplied to the court to enable the court prepare its judgment.
RULING DATED AND DELIVERED AT KIAMBU THIS 4TH DAY OF NOVEMBER, 2021.
MARY KASANGO
JUDGE
Coram:
COURT ASSISTANT : NANCY
FOR THE PLAINTIFFS: MS. THUKU H/B MR. KABUGU
FOR THE 1ST DEFENDANTS : NO APPEARANCE
COURT
RULING DELIVERED VIRTUALLY.
MARY KASANGO
JUDGE