[2003] KEHC 750 (KLR)
The court held that the appellant's claims for loss of business and value of her kiosk were special damages, not general damages. Such damages must be specifically pleaded and proved. The appellant failed to specifically plead these damages in her plaint, and therefore was not entitled to be awarded them, even...
Source-derived case information.
- Citation
- [2003] KEHC 750 (KLR)
- Parties
- Appellant: Zipporah Wanjiru; Respondent: Municipal Council of Nakuru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 8 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- ARM Visram
- Legal Topics
- Pleading of Special Damages, Proof of Special Damages, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Wanjiru
Appellant
Municipal Council of Nakuru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was entitled to further damages for loss of business and value of her kiosk destroyed by the respondent.
- 2 Whether such damages, not specifically pleaded in the plaint, could be awarded as general damages.
- 3 Whether the lower court erred in awarding special damages that were not specifically pleaded.
Ratio Decidendi
The court held that the appellant's claims for loss of business and value of her kiosk were special damages, not general damages. Such damages must be specifically pleaded and proved. The appellant failed to specifically plead these damages in her plaint, and therefore was not entitled to be awarded them, even though she attempted to prove them during the proceedings. The lower court's award of special damages was not disturbed because there was no cross-appeal. The appeal was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appellant's appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL 8 OF 1997
ZIPPORAH WANJIRU …………………………………………. APPELLANT
VERSUS
MUNICIPAL COUNCIL OF NAKURU ……………….....……....RESPONDENT
JUDGMENT
This is an appeal from the Judgment of the lower court by which the successful Appellant seeks, in the main, further damages by way of loss of business and value of her kiosk which was destroyed by the Respondent. These were not specifically pleaded in her Plaint. Mr. Kahiga for the Appellant argued that these were general damages which the court was obliged to award upon proof thereof. I cannot agree. Looking at the nature of these claims and the process employed to prove them, it is obvious that the same are in the nature of special damages. The Appellant knew what profits she was making from her business and the value of her kiosk at the time she brought her action in the lower court.
Her loss in that respect could be determined with arithmetic accuracy and did not require assessment by the court. It is clear beyond peradventure that special damages need not only be specifically pleaded but also specifically proved. The Appellant chose to prove those damages when she had not pleaded them. In fact, she did not specifically plead any claim for special damages and was not entitled to be awarded any although the lower court did award some. However, since there was no cross appeal to that award, I do not see the reason to disturb the same. I, therefore, dismiss the Appellant’s appeal with costs to the Respondent.
Dated and Delivered at Nakuru this 7th day of May, 2003.
ALNASHIR VISRAM
JUDGE