https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11190

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E272 OF 2025** **MOMENTUM CREDIT LTD……………..………………...................APPELLANT** **-VERSUS-** **FRANCIS MBURU NGIGE.............……......................................RESPONDENT** ***(Being an appeal from the judgment of Yusuf Barasa Mukhula (SPM) delivered*** ***on 18th September 2025 in Thika*** ***MCCC No. E083 of 2023)*** **J U D G M E N T** **Background** 1. This appeal emanates from the judgment delivered on **18.09.202**5 (as referenced in the appeal)in **Thika MCCC No. E083 of 2023**. The suit in the lower court was commenced by way of the plaint dated 28th February, 2023 filed by **Francis Mburu Ngige** the plaintiff in the lower court (hereinafter the Respondent)against **Momentum Credit Ltd**, the defendant in the lower court (hereafter the Appellant). The Respondent sought: 2. ***A permanent injunction restraining the defendant from selling, disposing off and/or interfering with the plaintiff’s enjoyment and use of Motor vehicle Registration Number KCZ 093C.*** 3. ***An order releasing Motor vehicle Registration Number KCZ 093C from Capitol Diamond Storage and Auction Yard.*** 4. ***An order that the defendant do cater for all costs of the auctioneer, storage of the Motor vehicle at Capitol Diamond Storage and Auction Yard and any other incidentals arising from the impoundment of Registration Number KCZ 093C.*** 5. ***General damages.*** 6. ***Loss of business for the duration that the motor vehicle was impounded.*** 7. ***Costs of the suit and interest hereof.*** 8. ***Such further or other relief as the Honourable Court may deem fit.*** 9. The Plaintiff later amended its plaint. The amended plaint is dated 13th August, 2024 and sought: 10. ***A permanent injunction restraining the defendant from selling, disposing off and/or interfering with the plaintiff’s enjoyment and use of Motor vehicle Registration Number KCZ 093C.*** 11. ***An order releasing Motor vehicle Registration Number KCZ 093C from Capitol Diamond Storage and Auction Yard.*** 12. ***An order that the defendant do cater for all costs of the auctioneer, storage of the Motor vehicle at Capitol Diamond Storage and Auction Yard and any other incidentals arising from the impoundment of Registration Number KCZ 093C.*** 13. ***General damages.*** 14. ***Loss of business in the sum of Kshs.182,686/- per month from February 2023 when the motor vehicle was impounded until judgment in full.*** 15. ***Costs of the suit and interest hereof.*** 16. ***Such further or other relief as the Honourable Court may deem fit.*** 17. It was pleaded in the plaint that the appellant without any right impounded the respondents **Motor vehicle Registration Number KCZ 093C** and kept it at Capitol Diamond Storage and Auction Yard. 18. The appellant filed a statement of defence dated 23.04.2024 denying allegations and claimed the repossessed **Motor vehicle was Registration No. KCM 532T** and not **Motor vehicle Registration Number KCZ 093C** and that the said **Motor vehicle was Registration No. KCM 532T was** used as security to secure a loan by one **Alex Munyiri Karuri.** 19. The suit proceeded for full hearing with the Respondent and his witness’ testimony, while the Appellant on its part relied on the testimony of one (1) witness. Upon close of submissions, the trial court by way of the judgment delivered on 18th September, 2025 allowed the Respondent’s claim, thus awarding him all prayers sought and the sum of Kshs.720,000/-,for loss of user plus costs of the suit and interest. **The Appeal** 1. Aggrieved by the aforementioned decision, the Appellant preferred the present appeal by way of the memorandum of appeal dated 16th October, 2025 which is based on the following grounds: 2. *The* *Learned Magistrate erred in law and in fact in awarding the respondent special damages under loss of user despite the trial court’s findings that the claim was not strictly proved.* 3. *The Learned Magistrate erred in law and in fact in treating the claim of loss of use as a general damage.* 4. *The Learned Magistrate erred in law and in fact in failing to* *consider the omission of the respondent to mitigate loss.* 5. *The Learned Magistrate erred in law and in fact in awarding the respondent costs of the suit and interest.* 6. The Appellant consequently seeks the following orders: 7. *That the appeal be allowed.* 8. *The award of loss of user totalling to Ksh.720,000/- be set aside.* 9. *The award of costs of the suit plus interest be set aside.* 10. *The appellant be awarded the costs of the appeal plus interest.* **Parties’ Submissions on the Appeal** 1. The appeal was canvassed by way of written submissions. Counsel for the appellant submitted that the trial court erred in awarding special damages under loss of user despite its finding that the claim was not strictly proved. 2. Whilst Citing the decision in **Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691(KLR);** on loss of use in profit making chattels, in personal injury claims, where it is assessed as general damages and not special damages . That the court should not have relied on **Nyaga v AG,Civil appeal No.E019 of 2023,** which was factually different from the instant case, hence arriving at a misleading decision. 3. The appellant further submitted a claim for loss of user is a special damage and not a general damage and should therefore be specifically and strictly pleaded and the respondent provided no evidence of the incurred loss totaling to Kshs.182,686/-. 4. That the trial court did not sate the criteria it used to award the sum of Kshs.2,000/- per day and the factors taken into consideration. They submit that the court erred in in finding the claim unproven and going ahead to award damages. The respondent had pleaded Kshs.182,686/- per month and nowhere did they claim Kshs.2,000/- per day for the court to arrive at the ruling. 5. The respondent on the other hand, supported the application of **Nyaga v AG, Civil Appeal No.E019 of 2023.** The respondent anchored his submission ondecisions in **Nduu v Kuu 7 another (Civil Appeal 8 of 2022)[2023]KEHC 24002(KLR), Team for Kenya National Sports Complex & 2 Others v Chabari M’ingaruni (Civil Appeal No.293 of 1998), Real People Kenya Limited v Gachanja & another [2026] KEHC 334 (KLR) and Peter Njuguna Joseph & Another v Anna Moraa (Civil Appeal No. 23 of 1991).** 6. Ultimately, counsel maintained that the Respondent was entitled to payment of loss of user and hence the trial court acted correctly in finding in his favour. In the premises, the court was urged to dismiss the appeal with costs, and to uphold the decision of the trial court with costs of the appeal to the respondent. **Analysis and Determination** 1. This court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: *“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.* *An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.* *In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”* 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.** 2. The legal position is that the burden of proof in civil cases rests with the plaintiff at all material times, while the standard of proof is held on a balance of probabilities. In **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91**, the Court of Appeal stated in this regard held that: ***“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”*** *(Emphasis added).* 1. Having earlier summed up the contents of the pleadings which were relied on by the parties, the trial court after restating and analyzing the evidence reasoned and granted the orders sought by the respondent but on loss of user, saw fit to award Kshs.2,000/- per day to the respondent for the 30 months the vehicle was impounded totaling to Kshs.720,000/-, and entered judgment accordingly, thereby precipitating the present appeal. 2. In reiterating the standard of proof, the Court of Appeal in **Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR** 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 a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.* *This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the 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.”* 1. Upon review of the memorandum of appeal and submissions by the respective parties before this court it is evident that the appeal is essentially challenging the award made by the trial court in favour of the Respondent, for loss of user for the sum of Kshs.720,000/-. As such, the court will consider the 4 grounds of appeal contemporaneously. 2. The issues for consideration by this Court therefore concerns special damages and the admissibility as well as probative value of required evidence. 3. It is trite law that parties are bound by their own pleadings and therefore barred from going beyond the pleaded case. That the Respondent ought to have therefore proved the payment/earning of Kshs.182,686/- in addition to specifically pleading the same. 4. Therefore, although the appellant did not object to the production of the report that the respondent produced, this does not necessarily mean that it was of probative value. This position was stated 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. 5. In **Richard Okuku Oloo –Vs- South Nyanza Sugar Co. Ltd (2013) eKLR**, the court held that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity. Further, the degree of certainty must necessarily depend on the circumstances and nature of the act complained of. 6. In the Court of Appeal at **Nairobi Civil Appeal 283 of 1996, David Bagine v Martin Bundi,** the court stated; ***“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 Shabani V. City Council of Nairobi (1982-88) 1KAR 681 at page 684:*** ***“…….Special damages in addition to being pleaded, must be strightly 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 damage 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’*** 1. The court further stated, ***“We must and ought to make it clear that damages claimed under the title “loss of user” can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase “doing the best I can”. These damages as pointed out earlier by us must be strictly proved. Having so erred, the learned judge proceeded to assess the same for a period of nearly three years. There the learned judge seriously erred.***” 1. This court concurs with the above position. A perusal of the record of appeal as well as the court proceedings shows no proof of the loss, the report does not contain receipts or proof of earnings by the respondent that would guide court to calculate the loss incurred. It is a document based on assumptions and conjecture and it was upon the respondent to convince court to grant them the pleaded loss Kshs.182,686/- per month and which the trial court rightfully did not grant. 2. Moving to the eventual award by court of Kshs,720,000/-, a reading of the trial courts judgment shows contradictions: ***“….it is not clear the nature of work the M/V was being used and there is no evidence how much it was earning per day...”*** *“…****however, it was obvious that the M/V was used for trade and the plaintiff must have incurred loss during the period it had been impounded…”*** *“…****in a month, the vehicle could have made Kshs.2, 000 x 12=Kshs.24,000/-“*** 1. The trial court went ahead to *suo moto* calculate the award at Kshs.2,000/- without showing the formula or criteria used to arrive at the figure, granting an amount not pleaded for by the respondent. 2. It is clear from the pleadings, testimony and evidence, that the respondent did not present any credible evidence for an award of loss of user, neither was there basis for the award of Kshs.720,000/-. 3. The trial court erred in awarding the colossal damages without proper legal justification, flouting the well-settled legal principle that he who alleges bears the burden of proof and without strict evidentiary proof of the formulae used to arrive at the amounts and contrary to section 109 of the Evidence Act. 4. The trial court was precluded from entertaining or making any orders on loss of user without strict proof and the respondent must be found as having failed to prove this prayer to the required standard and I find this ground of appeal meritorious. **Disposition** 1. **C**onsequently, the appeal partially succeeds in the following terms: 2. ***The respondent did not prove special damages in the form of loss of user with certainty or particularity to guide in calculation of the loss suffered by the respondent.*** 3. ***Without particularized special damages, the trial court erred by making an award for loss of user and the same is hereby set aside.*** 4. ***Since the respondent was successful on three prayers before the subordinate court, he shall have the costs of the lower court case.*** 5. ***Notwithstanding the partial success, there shall be no orders as to costs in this appeal.*** ***Dated, signed and delivered at Nairobi this 23rd day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of** M/s Moonga for appellant M/s Etole for Respondent Kalondu – Court Assistant