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Court of AppealDismissedCivil Appeal No. 3 of 2018· [2019] KECA 795 (KLR)

Aliff Construction Compant Limited v County Government of Tana River & 1 other

Court of Appeal of Kenya
4 April 2019
1,984 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Aliff Construction's Kshs.21.9 million claim because the company couldn't strictly prove its losses, even though the county government never showed up to defend itself.

What this practically means

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Executive summary

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The appellant contractor contracted with the County Government of Tana River in August 2014 to construct a footbridge at Gamba-Onkolde for Kshs.11,762,395.40. After works were halted in February 2015 pending re-design, the appellant sued in the High Court at Garsen seeking Kshs.21,970,494 for unpaid extra works plus Kshs.920,000 it had paid towards evaluation and re-designing. Following a consent recorded by the parties acknowledging Kshs.2,216,172.94 as owed and leaving the balance to litigation, the suit proceeded partly undefended. The trial Judge (Ongeri, J.) dismissed the claim, finding the appellant had failed to prove it on a balance of probabilities. On appeal, a three-judge bench of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) in a single joint judgment re-evaluated the evidence as required on a first appeal. It held that the absence of the 1st respondent at the hearing did not relieve the appellant of its burden of proof, which it failed to discharge: the director had admitted the contractual sum had been paid, and the contract revealed no entitlement to extra payment. The court further held that the claim was one for special damages, requiring strict proof; the appellant's receipts, salary vouchers, car hire payments and self-prepared schedules were not connected to the alleged extra works. Affirming the judgment of the High Court, the court dismissed the appeal with costs to the 1st respondent on 4th April 2019.

Key legal issues

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01

Whether uncontroverted evidence in the absence of the defendant automatically entitles the plaintiff to judgment

Holding

No. Even where the defendant does not appear at the hearing, the plaintiff remains bound to discharge the legal burden of proof to the required standard.

Reasoning

The court held that the general rule that the burden lies on the party who asserts the affirmative of an issue applies regardless of whether the opposing party participates. The appellant's director admitted the contractual sum had been paid, and the contract disclosed no entitlement to extra payment, so the unchallenged testimony could not sustain the claim. The learned Judge was therefore right to evaluate the evidence herself.

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02

Standard of proof of special damages

Holding

Special damages must be pleaded and strictly proved with independent evidence tying each item to the loss claimed; schedules prepared by the claimant and unconnected receipts do not suffice.

Reasoning

The court reaffirmed the strict proof standard from Kenya Bus Services v Fredrick Mayende and Bonham Carter v Hyde Park Hotel. The appellant's documents, largely salary vouchers and car hire payments, were never connected to unpaid extra works, and its director's schedules lacked independent corroboration. The claim for special damages accordingly failed.

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03

Duty of a first appellate court

Holding

A first appeal is decided by way of rehearing: the appellate court must re-evaluate the evidence and reach its own conclusions, subject to the absence of advantage enjoyed by the trial court in seeing and hearing witnesses.

Reasoning

Adopting Kenya Ports Authority v Kuston (Kenya) Limited, the court restated the governing standard for first appeals. Applying it, the court independently reviewed the record and concurred with the trial Judge's findings that the appellant had been paid more than the contractual sum and had failed to prove the alleged agreement to pay for extra works.

p. 2

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • The absence of a defendant at trial does not relieve a plaintiff of the burden of proving its case
  • Special damages must not only be specifically pleaded but also strictly proved; mere production of receipts not connected to the claim is insufficient

Court orders

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  1. 1.Appeal dismissed with costs to the 1st respondent
On appeal from
High Court of Kenya at Garsen
H.C.C.C No. 2 of 2015
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's statutory appellate powers

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aliff Construction Compant Limited v County Government of Tana River & 1 other", Case Analysis (2019). Civil Appeal No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/795/eng@2019-04-04

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