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Court of AppealDismissedCivil Appeal 29 of 2004· [2010] KECA 452 (KLR)

Moses Jomo Olengeben v Samson Masea Johana Masea

Court of Appeal of Kenya
5 February 2010
Philip Kiptoo TunoiP. K. TunoiDAD. K. S. AganyanyaJNJ. G. Nyamu
1,526 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can recover the value of stolen cattle using your own testimony and a police charge sheet, without a formal valuation report.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu from the judgment of Birech P.K.K.A. (Commissioner of Assize) dated 24th March 2003 in Kisii H.C.C. No. 214 of 1999, which awarded the two respondents Kshs.490,600 jointly for cattle stolen by the appellant, whose liability was admitted. The appellant advanced eight grounds, of which grounds 7 and 8 were abandoned at the hearing. Counsel for the appellant argued that the special damages were not strictly proved, that there were three irreconcilable sets of valuations, and that the trial court awarded an amount not pleaded in the plaint and decided an unpleaded issue without amendment, relying on the Virani and Provincial Insurance decisions and Blay v Pollard. Counsel for the respondents submitted that the charge sheet values were never challenged, that strict proof depends on circumstances, and that the court retained discretion to award a proper amount. The Court restated the duty of a first appellate court to re-evaluate the evidence. It held that the charge sheet figures, corroborated by the respondents' unchallenged oral evidence and uncontradicted by the appellant, satisfied strict proof on a balance of probabilities, and that formal valuation of cattle is not a prerequisite, a court being entitled to rely on the evidence of local farmers as to prevailing local values. The Court upheld the judgment of the superior court and dismissed the appeal with costs to the respondents. The judgment is a single judgment of the whole court; its binding rule is that strict proof of special damages is circumstantial and that owner testimony may suffice for livestock value.

Key legal issues

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01

Strict proof of special damages

Holding

The charge sheet value of the stolen cattle, supported by the respondents' unchallenged oral evidence, constituted strict proof on a balance of probabilities notwithstanding discrepancies in the pleaded figures

Reasoning

Liability was admitted and the appellant gave no conflicting values. The charge sheet figures plus the oral testimony of the two farmer owners supplied sufficient proof; nothing on record countered the accepted value, and the court retains discretion to award a proper amount even if less than that claimed.

p. 3
02

Proof of value without formal valuation or expert evidence

Holding

Oral evidence of the cattle owners as to the value of their herds sufficed; formal valuation is not a prerequisite and local market values may inform the assessment

Reasoning

The court applied a common-sense principle that cattle owners know the value of their toil; in real-life situations formal valuations are not required, and a court may have regard to local circumstances and local market values in assessing damages.

p. 3
03

Deciding unpleaded issues without amendment

Holding

Although counsel relied on Blay v Pollard for the rule that cases must be decided on the issues on the record, the court found the award was anchored on the pleaded claim and the charge sheet, so no unpleaded issue was decided

Reasoning

The respondents had indicated the value of each of the twenty-five cows in the plaint, the value per the charge sheet was never challenged, and the discrepancy between separate claims and the aggregate pleaded was not fatal to the claim.

p. 2

Legal principles established

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  • Special damages must be both pleaded and strictly proved, but what amounts to strict proof depends on the circumstances of the case
  • On a first appeal, the appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses
  • Formal valuation of cattle is not a prerequisite to recovering their value; a court may rely on the owner-farmers' evidence of local market value

Court orders

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  1. 1.Judgment of the superior court upheld
  2. 2.Appeal dismissed with costs to the respondents
On appeal from
High Court of Kenya at Kisii
Kisii H.C.C. No. 214 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction over appeals from the High Court (the judgment states 'As this is a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moses Jomo Olengeben v Samson Masea Johana Masea", Case Analysis (2010). Civil Appeal 29 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/452/eng@2010-02-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.