https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9558

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NO. E138 OF 2025 FLORENCE M. NZIOKA ………………………………..…1ST APPELLANT DAVID NZIOKA NDUBA …………………………………2ND APPELLANT VERSUS GEORGE ODHIAMBO AKOKO ……………………………RESPONDENT (Being an appeal against the whole of the judgement of Hon. Daffine Nyaboke Sure (PM) delivered in Kangundo PMCELC No. E027 OF 2020 delivered on 9th October 2023) **JUDGEMENT** **Introduction** 1. This appeal was transferred to this court from Machakos ELC being Appeal No. E024 of 2023 in a ruling delivered on 10th June 2025 by Hon. Lady Justice A. Y. Koross. The Appellants herein filed this appeal vide the Memorandum of Appeal dated 12th October 2023 against the whole of the judgment delivered by Hon. Daffline Nyaboke Sure P.M delivered on the 9th October 2023 at Kangundo Law Courts. The appeal is premised on the following grounds; *1*. *THAT, the learned Magistrate erred in fact and in law by granting prayers that had not been sought in the Plaint dated 7th December 2020.* *2. THAT, the learned Magistrate erred in fact and in law by granting the Respondent the sum of Kshs.220,000/= special damages which was not specifically pleaded, proved and sought for in the prayers contained in the plaint dated 7th December 2020.* *3. THAT, the learned Magistrate erred in fact and in law by granting the Respondent the sum of Kshs.100,000/= as general damages for breach of contract without the Respondent proving any loss and damage suffered as a result of the breach of contract.* *4. THAT, the learned Magistrate erred in fact and in law by failing to deliver a judgment on the counterclaim filed by the Defendants.* *5. THAT, the Learned Magistrate erred in law and fact in wholly relying on the evidence and arguments advanced by the Respondent and wholly disregarding the arguments W the Appellant.* *6. THAT, the learned Magistrate erred in law and fact by delivering a judgment against the weight of the evidence.* *7. THAT, The Learned Magistrate erred in law and fact by considering extraneous factors which were not material to the case.* 2. The Appellant seeks for orders : - 1. *THAT this appeal be allowed and the judgment of Hon. Daffline Nyaboke Sure delivered on the 9th of October 2023 and all consequential orders be set aside and judgment be entered for the Appellant as per the Counter Claim and the Respondent's case be dismissed.* 2. *THAT the Appellant be awarded the costs for the Chief Magistrate's Court ELC Case E027 of 2020 and this Appeal.* 3. In response to the Memorandum of Appeal dated 12th October 2023, the Respondent herein states as follows: 4. *THAT the Learned Magistrate was right in law and in fact in awarding the Respondent Kshs.220,000/- being unpaid balance for Phase I of the Contract. Among the prayers sought in the Plaint, the Respondent asked the Court for an Order that the Appellants herein do pay to the Plaintiff all the outstanding payments in addition to damages for breach of Contract.* 5. *THAT in Paragraph 7 of the Plaint, the Respondent particularized breach of contract by the Appellants including payment of only Kshs.80,000/- out of the agreed Kshs.400,000/- to be paid at the beginning of the Contract, and an additional Kshs.100,000/-. Therefore, out of the Kshs.400,000/- payable for phase 1, the Appellants only paid Kshs.180,000, leaving an unpaid balance of Kshs.220,000/-* 6. *THAT in addition to the prayers sought in the Plaint, the Respondent herein also asked for only other relief that the Court may deem fit, which it did.* 7. *THAT the Learned Magistrate was right in law and in fact in finding that the Appellants breached the contract, and proceeded to grant the Respondent General damages of Kshs.100,000/- for the said breach.* 8. *THAT the Respondent established the threshold for granting General Damages for breach of Contract. The Respondent showed that a contract was in existence, that the contract was breached by the Appellants herein and that he suffered damage/loss as a result of the Appellants' breach. The Respondent dedicated his time, skills and designs into the construction only for the contract to be terminated at its preliminary stage, and without any notice by the Appellants to the Respondent.* 9. *THAT contrary to ground 4 of the Appellants' grounds of appeal, a determination was made on the Defendants Counterclaim. Pages 10 and 11 of the Subordinate Court's Judgment clearly indicate the Court's decision on the prayers sought by the Appellants. The Court found that the amounts alluded to did not tally with what the Appellants claim they paid, and that as per the acknowledgment book, the Respondent did not sign some entries alleged to have been paid by the Appellants to the Respondent.* 10. *THAT further at page 11, the Court found that it was not clear how the Respondent owed the Appellants money as claimed and that the amount of Kshs.240,000/- sought by the Appellants for stolen materials was never reported as theft, nor any receipts produced for the materials allegedly stolen. The claim was therefore basically not proved.* 11. *THAT the Learned Magistrate was right in law and in fact in finding that the Respondent had established his case to the required standard, and in awarding damages therein.* 12. *THAT the Appeal is frivolous and lacking in merit and is only meant to deny the Respondent an opportunity to enjoy the fruits of the judgment of the Magistrate's court.* 13. *THAT the Memorandum of Appeal does not raise any serious issues for consideration by this Court since the judgement on record was well reasoned and arrived at by the court after a critical analysis and determination of the facts, evidence on record and the submissions of both parties.* 14. *THAT from the Evidence presented before the Chief Magistrate's Court, the parties herein entered a Contract and the same was breached by the Appellants herein, the result of which the Respondent herein suffered loss and damage.* 15. *THAT the learned magistrate rightfully made a decision based on the evidence on record and the testimonies of witnesses given during hearing. As such there is no valid reason to interfere with her decision.* 16. The Respondent pleaded that the appeal be dismissed and costs be born by the Appellants. **Brief facts** 1. The Respondent filed the suit at Kangundo Law Courts being SPM Environment and Land Case Number E027 of 2020 vide a plaint dated 7th December 2020. The Respondent sought the following prayers: *a)* *An order for specific performance to compel the Appellants to abide by the Parties contract agreement dated 15th May 2020.* *b) In the alternative, the Appellants do pay to the Respondent all the outstanding payments in addition to damages for breach of contract.* *c) Costs and interest till payment in full.* *d) Any other relief that the court may deem lit to grant.* 6. The Appellants in response filed their Memorandum of appearance, Statement of Defence and Counterclaim on the 4th January 2021. In the Counterclaim, the Appellants claimed for the following:- 1. *General damages for breach of contract.* 2. *The sum of Kshs.193,150 being loss and damages suffered by the Appellants as a result of the actions of the Respondent.* 3. *Costs and interest of (b) above.* 4. *Costs of the suit and Counterclaim.* 5. Parties thereafter filed and exchanged their pretrial bundles and the matter was certified ready for hearing. The Respondent testified on the 25th October 2021 and closed his case. The 2nd Appellant testified and also closed the Appellants’ case. Both sides also produced their documents as per their respective list of documents. The 2nd Appellant produced his list of documents dated 9th July 2021 as exhibits number 1, 2 and,3 and further list of documents as exhibits number 5, 6, 7 ,8 and 9. The Appellants’ filed Supplementary list of documents dated 31st May 2022Parties thereafter filed their submissions in support of their respective cases. The case was fixed for judgment on the 9th October 2023. Judgment in this matter was delivered on the 9th October 2023. 6. The Appellants being dissatisfied with the said judgment filed this appeal raising grounds of appeal as already set out herein. 7. Directions on this appeal were taken on the 28th January 2025 when parties agreed to canvass the Appeal by way of written submissions. Both parties complied by filing and exchanging their respective submissions. **Appellants’ submissions** 1. In summary the Appellant submitted that parties are bound by their pleadings and there is no room for parties to depart from their pleadings and clear other cause of actions. Secondly, it is also decided law that judicial officers are bound by the pleading before them in granting the orders sought. A judicial officer lacks inherent jurisdiction to grant orders not sought in the pleadings. In the instant case before this court, the learned magistrate granted special and general damages that were not pleaded and proved nor were they sought in the orders sought by the Respondent. The Respondent also throughout is pleadings and testimony did not prove any injury suffered to warrant grant of general damages for breach of contract. Courts have held on times without count that for damages for breach of contract to be awarded one must prove the damages suffered. 2. The Appellants had filed a Counterclaim dated 4th January 2021 and filed in court on the same date. In the Counterclaim the Appellants sought general damages for breach of contract, the sum of Kshs.193,150/= being loss and damages suffered by the Appellants as a result of the actions of the Respondent, costs and interests of b above and costs of the suit and Counterclaim. The Respondent despite being served with the Counterclaim did not file a defence to the same. The Appellants during the hearing, cross-examined the Respondent on the contents of the Counterclaim. The 2nd Appellant in his testimony testified in support of the Counterclaim. That the learned magistrate in her judgment steered clear of the Counterclaim and never mentioned it in the judgment. The Appellants argued that a Counterclaim is a suit by itself and the learned magistrate ought to have considered the same on its merits and delivered a judgment either allowing it or dismissing it and failure to do so is a valuation of the Appellants’ rights to a fair hearing as provided for in Article 50 of the Constitution of Kenya 2010 and rules of natural justice. **Respondents’ submissions** 1. In summary, the Respondent submitted that it is the Appellants’ assertion that the learned magistrate erred in law and in fact in awarding the Respondent Kshs.220,000/- as special damages which was not specifically pleaded, proved and sought for in the prayers contained in the Plaint dated 7th December 2020.What the Appellants failed to state and or reveal before this court is that the amount of Kshs.220,000/= that the trial court awarded was the amount that the Appellants failed to pay and /or outstanding balance of the amount owed pursuant to the Parties’ agreement dated 15th May 2020. 2. The Respondent further submitted that the Appellants raised a Counterclaim claiming that they paid Kshs.193,150/= over and above the agreed Kshs.400,00/=for the 1st Phase, but they failed to prove the claim. The allegations in the Statement of Defence and Counterclaim were therefore never proven, yet the position in law is that he who alleges must prove. 3. The Respondent submitted that apart from pleading general damages, he went further to prove the damages he suffered as a result of the Appellant’s breaching the agreement which they voluntarily executed. That in proving that he suffered damages, the Respondent indicated that the Appellants after frustrating the enforcement of the agreement, went further and defaulted in making payments for the 1st Phase as agreed and owing to the Appellants’ irregular payments as indicated and contrary to the parties’ agreement, the Respondent faced a lot of challenges in implementing the project. That further the Appellants unilaterally, unprocedurally and without any notice to the Respondent, terminated the Parties’ contract vide a letter dated 18th November 2020 which termination was to take immediate effect. This occasioned the Respondent to suffer financially and psychologically and lost other business opportunities as they were committed to implementing the Parties’ contract which eventually got frustrated at the whims of the Appellants. The Respondent affirms that the trial court was right in awarding the Respondent general damages of Kshs.100,000/=. **Analysis and Determination** 1. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in ***Selle & another v Associated Motor Boat Co. Ltd.& others* and in *Peters v Sunday Post Limited* (1968) E.A 123. (1958) E.A Page 424.** 2. In the case of **Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022)**, the court held that: - *“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.* 1. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of [Civil Procedure Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3), a court of first appeal can appreciate the entire evidence and come to a different conclusion 2. I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider the following three issues: 3. *whether the trial court’s award of Kshs.220,000/= which was termed as “****special damages****” can be disturbed on this appeal;* 4. *whether the trial court’s award of Kshs.100,000/= for general damages for breach of contract should also be disturbed on this appeal; and* 5. *whether the trial court considered the Counter claim*. **Award of Kshs.220,000/= for “special damages”** 1. The Appellants’ concern is that the learned magistrate erred in law and in fact in awarding the Respondent Kshs.220,000/- as special damages which amount was not specifically pleaded, proved and sought for in the prayers contained in the Plaint dated 7th December 2020. The Respondent maintains that the amount of Kshs.220,000/= that the trial court awarded was the amount that the Appellants failed to pay and /or outstanding balance of the amount owed pursuant to the Parties’ agreement dated 15th May 2020. 2. I have keenly perused the trial court record. Prayer 2 in the Plaint dated 7th December 2020 was couched as follows: “**In the alternative, the Defendants do pay the Plaintiff all the outstanding payments in addition to damages for breach of contract”**. 3. In the said agreement, the Appellants were to pay a total of Kshs.400,000/= to the Respondent for Phase 1 of the construction of a house on parcel No. Matungulu/Kyaume/1956 but the Appellants defaulted on their obligations by failing to pay the Respondent the agreed Kshs.400,000/= for the 1st Phase. Instead, the Appellants paid Kshs.40,000/= in cash on 3rd October 2020, another Kshs.40,000/= on 8th October 2020 as evidenced by the confirmation of receipt of money received by the Respondent. 4. According to the Contract of the parties herein dated 15th May 2020, the subject construction was to be in four (4) phases and the Respondent was to be paid per phase. At the slab level, the Respondent was to be paid in two installments of Kshs.200,000/= beginning of the contract and Kshs.200,000/= at slab timber work. On 18th November 2020, the 2nd Appellant wrote to the Respondent terminating the contract for the reasons therein. The termination happened at phase 1 of the construction. The letter dated 18th November 2020, was the subject of attempted negotiations which failed and parties approached the court with their claims. 5. The Respondent conceded to not constructing the slab. It appears the contract was terminated at the beginning of the contract when the Respondent was supposed to be paid Kshs.200,000/=. From this amount the Respondent acknowledged receipt of Kshs.80,000/= by signing for Kshs.40,000/= on 3rd October 2020 and Kshs.40,000/= on 8th October 2020. 6. The Appellants on the other hand stated that the Respondent was paid Kshs.400,000/= but he did not finish the work, the Appellants also stated that they paid the Respondent’s workers Kshs.61,800/= and further paid the Respondent Kshs.200,000/= at the beginning of the contract. 7. The Appellants’ Supplementary list of documents dated 31st May 2022 attached a copy of withdrawal slips from Kenya Commercial Bank Tala Branch dated 19th August 2020, a copy of account transfer slip from Kenya Commercial Bank Tala Branch dated 26th September 2020, copies of payment acknowledgement agreements and a copy of a receipt dated 30th September 2020 which were produced as exhibits in the lower court. Unfortunately, I have not been able to read the contents of the slips from Kenya Commercial Bank which are faded and thus not legible. I am unable to tell who are the parties therein, what transactions were done and for how much. Just like the trial magistrate stated, I also add my voice that it would have been appropriate if the Appellants availed in court certified copies of the bank statements highlighting the respective transactions for perusal and consideration. Therefore, the Appellants did not prove to the contrary that the Respondent was paid more than the KShs.80,000/= he acknowledges to have received. 8. The trial magistrate in her judgement at page 239 of the record of appeal stated as follows :- “*in my view, from the above, the parties were bound by the contract to ensure phase 1 is completed. In this case, the defendants (appellants herein) were to pay the Plaintiff Kshs.400,000/= but they paid* ***Kshs.80,000/=*** *which has been acknowledged”* 1. However, still in the same judgement at page 240 1st paragraph, the trial magistrate stated as follows:- *“….I am convinced the plaintiff (Respondent herein) was entitled to Kshs.400,000/= in the 1st phase but was only paid* ***Kshs.180,000/=*** *before the 2nd Defendant (Appellant herein) terminated the contract. I tend to agree with the Plaintiff’s (Respondent herein) submissions on this issue and find he is entitled to Kshs.220,000/= being balance for phase 1”* 1. On this first issue, my analysis of the evidence on record before the trial court, according to the Contract of the parties herein dated 15th May 2020, is that the subject construction was to be in four (4) phases and the Respondent was to be paid per phase. At the slab level, the Respondent was to be paid in two installments of Kshs.200,000/= beginning of the contract and Kshs.200,000/= at slab timber work. 2. On 18th November 2020, the 2nd Appellant wrote to the Respondent terminating the contract for the reasons therein. The termination happened at phase 1 (slab level) of the construction. The Respondent conceded to not constructing the slab. It appears the contract was terminated at the beginning of the contract when the Respondent was supposed to be paid Kshs.200,000/=. From this amount the Respondent acknowledged receipt of Kshs.80,000/= by signing for Kshs.40,000/= on 3rd October 2020 and Kshs.40,000/= on 8th October 2020. Further, the trial magistrate at page12 paragraph 1 of the judgement stated that she was convinced the Plaintiff (Respondent) was entitled to Kshs.400,000/= in the 1st phase but was only paid Kshs.180,000/= before the 2nd Defendant (2nd Appellant) terminated the contract. That the trial magistrate tended to agree with the Plaintiff’s (Respondent) submissions on this issue and found he is entitled to Kshs.220,000/= being the balance for Phase 1. It is not clear from the trial Magistrate’s judgement what was paid to the Respondent according to her analysis of the evidence; was it **Kshs.80,000/=** or **Kshs.180,000/=**. 3. On the foregoing, it is my position that the Respondent having conceded to not completing the slab level, he cannot claim the entire payment of Kshs.400,000/= for a completed phase whereas he was entitled to payment of the 1st installment of Kshs.200,000/= for the 1st phase which was equivalent to work done so far. The Respondent was entitled to **Kshs.120,000/=** being Kshs.200,000/= 1st instalment less Kshs.80,000/= already paid. Accordingly, this court finds that the trial court erred in awarding the Respondent Kshs.220,000/= as the unpaid outstanding amount. 4. The trial magistrate referred to the said amount as **special damages**. This court agrees with the Respondent that the same was a sematic term, which does not affect the substance of the judgement, and hence this court will overlook the term and find that it addressed the issue before the trial court which was for unpaid outstanding amount, though inadvertently termed as special damages. 5. **Award of Kshs.100,000/= for general damages for breach of contract** 6. The Appellants also fault the learned Magistrate for granting the Respondent the sum of Kshs.100,000/= as general damages for breach of contract without the Respondent proving any loss and damage suffered as a result of the breach of contract. 7. The Respondent argues that apart from pleading general damages, he went further to prove the damages he suffered as a result of the Appellant’s breaching the contract which they voluntarily executed. That in proving that he suffered damages, the Respondent stated that the Appellants after frustrating the enforcement of the contract, went further and defaulted in making payments for the 1st Phase as agreed and owing to the Appellants’ irregular payments as indicated and contrary to the parties’ agreement, the Respondent faced a lot of challenges in implementing the project. That further, the Appellants unilaterally, unprocedurally and without any notice to the Respondent, terminated the Parties’ contract vide a letter dated 18th November 2020 which termination was to take immediate effect. This occasioned the Respondent to suffer financially and psychologically and lose other business opportunities as they were committed to implementing the Parties’ contract which eventually got frustrated at the whims of the Appellants. The Respondent affirms that the trial court was right in awarding the Respondent general damages of Kshs.100,000/=. 8. The principle for awarding general damages was set out in the case of **Consolata Anyango Ouma vs. South Nyanza Sugar Co. Ltd (92015) eKLR** where the court held: *“The next question is whether the Appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Ltd vs. Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR, Kenya Breweries Ltd vs. Natex Distributors Ltd, Milimani HCCC No. 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale [1854]9 Exch.341 that the measure of the damages is such as may be fairly and reasonably considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach.”* 1. Also, in Anson’s Law of Contract, 28th Edition at pg 589 and 590 the law is stated to be that: *“Every breach of contract entitles the injured party to damages for the loss he or she has suffered. Damages for breach of contract are designed to compensate for the damage, loss or injury the claimant has suffered through that breach. A claimant who has not, in fact, suffered any loss by reason of that breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal"* 1. Further, the Halsbury’s Laws of England, 3rd Edition Vol. II, defines nominal damages as follows: *“388. Where a plaintiff whose rights have been infringed has not in fact sustained any actual damage therefrom, or fails to prove that he has; or although the plaintiff has sustained actual damage, the damage arises not from the defendant’s wrongful act, but from the conduct of the plaintiff himself; or the plaintiff is not concerned to raise the question of actual loss, but brings his action simply with the view of establishing his right, the damages which he is entitled to receive are called nominal… thus in actions for breach of contract nominal damages are recoverable although no actual damages can be proved”* 1. Guided by the foregoing, I established from the trial court’s record that the Respondent apart from pleading general damages, he went further to prove the damages he suffered as a result of the Appellants’ breaching the contract between the parties herein. Therefore, there is no sufficient cause for this court to interfere with the award of Kshs.100,00/=and the same is upheld. 2. **Whether the trial court considered the Counter claim.** 3. First, the Appellants claim that they had filed a Counterclaim dated 4th January 2021 and filed in court on the same date. In the Counterclaim the Appellants sought general damages for breach of contract, the sum of Kshs.193,150/= being loss and damages suffered by the Appellants as a result of the actions of the Respondent, costs and interests of b above and costs of the suit and Counterclaim. The Respondent despite being served with the Counterclaim did not file a defence to the same. In considering this claim. 4. I must say that I have had the opportunity to peruse through the parties’ pleadings before the trial court and I can confirm that the Respondent did file a Reply to the Statement of Defence and Defence to Counterclaim dated 18th January 2021 which was served upon the firm of Muema & Associates Advocates for the Appellants on 15th February 2021 (*See pages 58 & 59 of the record of appeal*). It is therefore not true that the Respondent did not file a defence to the Counterclaim. The Appellant’s allegation is misconceived and misplaced. 5. Second, the Appellants contend that the learned magistrate in her judgment steered clear of the Counterclaim and never mentioned it in the judgment. The Appellants argued that a Counterclaim is a suit by itself and the learned magistrate ought to have considered the same on its merits and delivered a judgment either allowing it or dismissing it and failure to do so is a valuation of the Appellants’ rights to a fair hearing as provided for in Article 50 of the Constitution of Kenya 2010 and rules of natural justice. 6. In regard to this issue, I have perused the trial court’s judgement and I note that at page 11 paragraphs of the judgement which is at page 239 of the record of appeal, the trial magistrate stated as follows: *“I have considered the evidence of the 2nd Defendant’s (2nd Appellant) and it is not clear why he is demanding Kshs.193,150/=. From his evidence, it was not clear how the Respondent owed him this money. In the submissions the 2nd defendant (2nd Appellant) is also asking for Kshs.240,000/= being the cost of stolen materials. I have considered this and the 2nd Defendant’s (2nd Appellant) never reported the issue of the theft or the receipts for the materials which were stolen. I find that the Defendants’ (Appellants) application to not have any merit and it appears to be a retaliation of the Plaintiff’s (Respondent) suit”.* 1. On the foregoing, there is no doubt that the trial magistrate addressed and considered the Appellants Counterclaim in her judgement save that her finding on the same was not stated in her conclusion. According to the trial court’s judgement, the Counterclaim was found to be without merit and the end result in the circumstances was for it to be dismissed which I hereby do. 2. Consequently, I make the following orders: 3. **The award of Kshs.220,000/= for unpaid outstanding amount (*special damages*) delivered by the trial magistrate on the 9th of October 2023inSPM Environment and Land Case No. E027 of 2020 at Kangundo Magistrate’s Court is set aside and thereof substituted with an award of Kshs.120,000/=.** 4. **The award of Kshs.100,000/= for general damages is upheld.** 5. **The Appellants’ Counterclaim stood dismissed by the trial court.** 6. **The Respondent in the appeal will have the costs and interest of the lower court case. The Appellant will have half the costs of the appeal assessed at Kshs.20,000/=.** It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22ND JUNE 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND JUNE 2026 **In the presence of :** Mr. Muema for Appellant Mr. Odhiambo for Respondent