[2025] KEHC 4985 (KLR)

[2025] KEHC 4985 (KLR)

The appeal was dismissed on two grounds. First, the memorandum of appeal was filed out of time, more than one year after the judgment, without leave of court, rendering the appeal incompetent. Second, even if the appeal were properly before the court, the appellant failed to prove his claim on a balance of probabilities. The trial court correctly found that the assessment report for crop damage was only marked for identification and not produced as an exhibit, and no receipts were provided for the alleged costs of production. The law requires that special damages be specifically pleaded and strictly proved, and documents relied upon must be formally produced as exhibits to have evidential...

Citation
[2025] KEHC 4985 (KLR)
Parties
Appellant: Johana Rotich; Respondent: Philip Cheboi
Court
High Court
Court Station
High Court at Kabarnet
Jurisdiction
Kenya
Judgment Date
24 April 2025
Case Number
Civil Appeal E002 of 2023
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal dismissed
Judges
RB Ngetich
Legal Topics
Negligence, Special Damages, Admissibility of Evidence, Balance of Probabilities
Source Language
English
Tort Law Civil Procedure Negligence Special Damages Admissibility of Evidence Balance of Probabilities

Case Brief

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Parties

Johana Rotich

Appellant

Philip Cheboi

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the appeal was filed out of time.
  2. 2 Whether the appellant proved his case on a balance of probabilities for damages arising from destruction of crops by the respondent's livestock.
  3. 3 Whether the trial court erred in excluding the assessment report and declining to award special and general damages.

Ratio Decidendi

The appeal was dismissed on two grounds. First, the memorandum of appeal was filed out of time, more than one year after the judgment, without leave of court, rendering the appeal incompetent. Second, even if the appeal were properly before the court, the appellant failed to prove his claim on a balance of probabilities. The trial court correctly found that the assessment report for crop damage was only marked for identification and not produced as an exhibit, and no receipts were provided for the alleged costs of production. The law requires that special damages be specifically pleaded and strictly proved, and documents relied upon must be formally produced as exhibits to have evidential...

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed with costs to the respondent.