Nkubitu & another v Thirindi (Civil Appeal 150 of 1997) [1998] KECA 270 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that written submissions cannot replace evidence, and cancelled a damages award made without any witness testimony.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge could properly assess damages on the basis of written submissions alone, without evidence being led
- 2.Whether there was any evidential basis for the award of Shs.167,100/- in damages
Key legal issues
#Whether damages may be assessed on written submissions without evidence
No. Assessment of damages in vacuo, without evidence led, is illegal and contrary to law; the burden of proof under section 107 of the Evidence Act must be discharged by evidence.
The trial judge assessed damages based only on written submissions containing allegations, documents annexed and counsel's assertions. The court held that submissions are not evidence; even after a consent judgment on liability, the plaintiff must lead evidence proving the dependants, the deceased's age, income and support. The practice, said to be rampant at Meru, was condemned as clearly illegal.
Allocation of blame where both counsel participate in the improper practice
Both counsel misled the judge and both bear blame; it would be unjust to leave the plaintiff alone to suffer, so no costs order was made.
Although the defendants complained on appeal, their advocate had played an active part in the improper practice. The court held the judge should nonetheless have prevented it because a judge is presumed to know the law. Fairness to the plaintiff and shared culpability of counsel led to the remittal and a no-costs order.
Legal principles established
#- Written submissions are not evidence and cannot take the place of evidence; a party must lead evidence to prove facts asserted, including dependency, age and income of a deceased, before damages can be assessed.
- Even after liability is settled by consent, the plaintiff must still lead evidence to prove the averments supporting quantum.
- A judge is presumed to know the law and should not permit assessment of damages in the absence of evidence, even where counsel mislead the court.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of Etyang J. set aside
- 3.Case remitted to Etyang J. to assess damages in accordance with settled principles and section 107 of the Evidence Act
- 4.No order as to costs of the appeal or of the proceedings in the superior court up to the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 198 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment/decree of the High Court (statutory first appeal)
Relief refused
#Costs of the appeal and of the superior court proceedings
Both counsel contributed to the state of affairs prevailing at the time of delivery of judgment in the superior court
Costs
No order as to costs of the appeal or of the proceedings in the superior court up to the date of judgment; each party to bear their own costs (implied by 'no order as to costs')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Submissions are not evidence and cannot take the place of evidence.
We are concerned that the learned Judge embarked on the exercise of assessing damages in vacuo and in the absence of any evidence as none was led.
For all these reasons, we allow this appeal, set aside the judgment and decree of Etyang J. and remit the case back to him to assess damages in accordance with settled principles and more specifically section 107 of the Evidence Act.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okoiti v Portside Freight Terminals Limited & 12 others[2025] KESC 44 (KLR)30 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Nkubitu & another v Thirindi (Civil Appeal 150 of 1997) [1998] KECA 270 (KLR)", Case Analysis (1998). Civil Appeal 150 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/270/eng@1998-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.