https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8021

Patrick v Limo & another (As the administrators of the Estate of Chemos Levi Limo) (Civil Appeal E030 of 2025) [2026] KEHC 8021 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8021 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E030 of 2025 A Mabeya, J June 5, 2026 Between Ndoli Patrick Appellant and Stephen Kinwach Limo & Doris Chepkwemoi Limo (As the administrators of the Estate of Chemos Levi Limo) Respondent Judgment 1.The respondents filed the primary suit before the trial court vide a plaint dated 5/4/2023 seeking general damages for fatal injuries sustained following a road traffic accident as well as special damages of Kshs. 1,013,550/-. 2.The appellant entered appearance and filed a statement of defence dated 29/9/2023 in which he denied the respondents’ claim and pleaded contributory negligence on the part of the respondent. 3.The matter proceeded to trial and by a judgment delivered on 26/03/2025, the trial court decreed: -a.Liability 100% against the appellant.b.Pain & Suffering Kshs. 30,000/-c.Loss of expectation of life Kshs. 100,000/-d.Loss of dependency Kshs. 2,000,000/-e.Special damages Kshs. 1,013,550/-f.Costs and interest at court rates. 4.Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 3/2/2025 and raised four (4) grounds of appeal as follows: -a.That the learned trial magistrate erred in law and in fact by proceeding on wrong principles when assessing damages to be awarded to the respondent under the head of special damages and thereby failed to apply tenets of the law applicable.b.That the learned trial magistrate erred in law by awarding the respondent special damages of Kshs. 1,013,550/- which was not proved and the receipts had no revenue stamp.c.That the learned trial magistrate erred in law by failing to take into account the injuries pleaded by the respondent and considering comparable reasonable awards thereby arriving at an erroneous estimate of the compensatory award leading to an excessive award.d.That the learned trial magistrate erred in law by awarding the respondent global sum of Kshs. 1,500,000/- which was excessive in the circumstances. 5.The appeal was disposed of by way of written submissions. The appellant abandoned his appeal on the general damages awarded under the Law Reform Act & Fatal Accidents Act and instead restricted the appeal to the special damages of Kshs. 1,013,550/- awarded as contained in grounds 1 & 2 of his Memorandum of Appeal. 6.It was his submission that his appeal was anchored on whether the respondent strictly proved special damages as required by law. That special damages must be specifically pleaded and strictly proven because they are not the direct, natural, or a probable consequence of an act and cannot simply be inferred as held in the case of Hahn v Singh (1985) Civil Appeal No. 42 of 1983 [1985] KLR 716. 7.That all receipts relied upon by the respondent lacked revenue stamps and under section 19(1) of the Stamp Duty Act, unstamped instruments cannot be admitted as evidence in civil proceedings, meaning the trial court erred in relying on them. 8.The appellant specifically attacked the catering receipts produced by Pw3 on two fronts; firstly, for lack of clarity in that Pw3 admitted the amount included foodstuffs, but provided no itemization or breakdown whereas a general lump sum does not meet the legal threshold for special damages and secondly, that there was no proof of prepayment as Pw3 testified that she was paid in cash after the burial which the appellant argued is highly improbable as there was no prior documentation for such a big spend out of pocket, leaving the court to speculate on whether payment actually happened. 9.On their part, the respondents submitted that the trial court was entirely justified in making the award, pointing out that the special damages were specifically pleaded, particularized, and strictly proven in line with Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Co. Ltd (2004) KLR 269. 10.That the appellant did not object to the production of any of these receipts during the initial hearing and as such, raising these issues on appeal was an afterthought. 11.They rejected the appellant's argument that the lack of revenue stamps rendered the receipts inadmissible, raising two points; One, that under section 88 of the Stamp Duty Act, the statutory duty to affix a revenue stamp fell entirely on the person receiving the money and not the consumer/payee (the respondents) and, Two that courts do not reject documents simply for lacking revenue stamps as was held in the case of Elmi v Nagda (Civil Appeal E515 of 2022) [2024] KEHC 1637 and Wycliffe Lubanga Kefa v Dennis Ochola & another (2020) eKLR. 12.This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 13.Before the trial court, Stephen Kinwach Limo testified as Pw1. He adopted his statement dated 5/4/2023 as his evidence in chief. It was his testimony that the deceased was heading to Mamboleo whereas the vehicle that knocked him down was heading to Kisumu town when it overtook a lorry at Mamboleo round about and ended up knocking the deceased down. 14.In cross-examination, he told the court that the accident occurred on the 6/9/2021 as he escorted the deceased to Uzima University for admission. That the deceased walked 10 metres in front of him when he was knocked down and died instantly. 15.That he catered for the funeral expenses, obtained a limited grant and paid his advocate Kshs. 60,000/-, paid for fuel at Kitale National Oil and was issued with a receipt, paid for transport of the deceased’s body and also paid Kshs. 800,000/- in installments of Kshs. 100,000/- daily for catering services during the funeral period. 16.Pw2, Wycliffe Maina Mose, the manager of Mwanzo Catering Services admitted to knowing the receipt dated 15/9/2021. He testified that they provided services at a funeral in Kitale for 10 days and charged a fee of Kshs. 800,000/-. 17.In cross-examination, he stated that he was given the contract to provide catering services by Pw1. That the contract was oral and that he was to provide services for 8 days. That he knew that the receipt had no revenue stamp but it had a date and bore his signature. The respondents then closed their case. 18.On his part, the appellant closed its case without calling any witness. 19.From the foregoing, the only issue for determination is ‘whether the trial court erred in awarding special damages based on receipts that lacked revenue stamps’. 20.It is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by a court. Suffice it to quote from the decision of the Court of Appeal in Hahn v Singh (supra) where it was held that: -“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.” 21.In this regard, courts have naturally insisted that a party must present actual receipts of payments made to substantiate loss or economic injury. It is not enough for a party to provide pro forma invoices sent to the party by a third party. In Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR; Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR.), it was held that an invoice is not proof of payment. 22.In the present case, the respondent pleaded for Kshs 1,013,550/- as special damages for Fuel Cost/Transportation, Catering Services during the funeral, search on motor vehicle and legal costs for pursuing letters of administration. 23.The appellant challenged the admissibility of the receipts as the same had no revenue stamps. Under section 88 of the Stamp Duty Act, the obligation to affix a revenue stamp on a receipt is in law placed upon the person issuing the receipt and not the person to whom it is issued. To decline admission of such receipts would be therefore to punish an innocent party. 24.The issue was aptly addressed by Sila J. (as he then was) in Jackson Kariuki Kahungura & another v John Karanja Kihagi & 5 others [2018] eKLR as follows: -“ 71.From the above, the duty to stamp the receipt is not that of the recipient but that of the issuer of the receipt. One could object to production of the receipt if not stamped, so that it may be stamped, but once introduced as evidence, the court cannot close its eyes and assume that no such expense was ever incurred. This indeed appears to be the approach taken by several judges. In the case of Beatrice Ndungwa Makau vs Nairobi City Council & Another, High Court at Nairobi, Civil Appeal No. 1 of 2007, (2012) eKLR, the trial magistrate court refused to make an award of special damages on the reason that the receipts produced were not stamped. On appeal, Onyancha J, stated as follows:“In rejecting the evidence contained in the receipts produced by the appellant, the trial magistrate used the ground that the receipts were not revenue-stamped. However, that reason was one for rejecting the receipts from being produced. However, neither the Respondents nor the court objected to production. Once the evidence was properly produced in my view, it would be difficult for the court to close its eyes and brain to the evidence they contained or represented. In my opinion, the court should not have ignored properly admitted evidence of the appellant, which were in any case, not rejected by the Respondents.” 72.The learned Judge proceeded to make the award on special damages based on these unstamped receipts.Emukule J, in the case of Benedeta Wanjiku Kimani (Suing as the administrator of the Estate of Samwel Njenga Ngunjiri (deceased) vs Changwon Cheboi & Another, High Court at Nakuru, Civil Suit No. 373 of 2008 (2013) eKLR also faced a situation where a claim for special damages was made and the receipts produced did not have revenue stamps.…“I have indeed looked at the invoices, and receipts, and they indeed do not appear to bear any copy of a revenue stamp affixed to them. That does not however conclusively determine that the Plaintiff did not pay for the various services rendered in the course of the deceased's hospitalization, or for his funeral expenses.In my view it is the duty of the receiver of the revenue and not the payer to affix the revenue to receipt of all the prescribed amounts. It is the receiver of such payments who should be interrogated and not the poor widow who would be mourning her husband and cannot be penalized for failing to ascertain whether the receipt she was receiving in acknowledgment of the payments she was making had a revenue stamp affixed on them. Lastly having admitted the receipts by consent, the Defendant's counsel is estopped from challenging their admission by way of submission.In the result therefore, I allow the plaintiff's claim in the sum of Kshs. 75,650/= as special damages.” 73.What transpired above is what we have in this case. There was no objection to the production of the receipts, and I am in agreement, as averred by Emukule J above, that the defence is now estopped from challenging them at this stage. 74.In my humble view, courts need to be slow before denying someone an award for money that he must have spent, just because a receipt, for which the duty to stamp is not his, has not been stamped. Why should the court prejudice you for the omission of somebody else and on something that you have no duty to do? If say, you broke your leg following an accident, and there is ample and undisputed evidence that you spent so many nights in a hospital, and you underwent surgery, and you spent Kshs. 500,000/= for which the hospital has issued you with a receipt but has not stamped it, surely should you be denied this money, of which there is no doubt that you have spent, just because the hospital has not stamped the receipt? We have to look at the justice of the case and not technicalities. Maybe the most I can do, if there is an objection at the time of production, is to ask you to ensure that the receipt will be stamped. 75.… 76.Thus, the objection that this court cannot make an award based on the contention that some receipts were not stamped, must fail. My conclusion on this point is that the plaintiff has proved damages in the sum of Kshs. 8,037,309.88.” 25.The above case falls on all fours with the present case. It is a persuasive authority. I am therefore persuaded that the trial court correctly awarded the amounts in the receipts that did not have revenue stamps as presented by the respondents. 26.As regards the challenge that the expenses were improbable, the testimony of Pw2 remained intact. It was not displaced. He remained firm that he was paid the money for the services rendered. Those grounds therefore fail. 27.In the circumstances, the appeal is found to be without merit and is hereby dismissed with costs.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE