Simon Ndungu Mungai & 1 other v Municipal Council of Kiambu
The bottom line
#Kenya's Court of Appeal dismissed tenants' bid for Kshs 23.8 million, confirming special damages must be specifically itemized and strictly proved with evidence.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to set aside an interlocutory judgment without an application
The High Court had jurisdiction to set aside the interlocutory judgment ex debito justiciae under Order IXA rule 10 even though the respondent never applied.
Order IXA rule 10 empowers the court to set aside or vary a judgment entered under that Order on such terms as are just. Unlike Order IXB rule 8, it contains no requirement of a formal application. The distinction between the two provisions confirmed the court's power to act on its own motion, so the absence of any application by the respondent did not vitiate the judge's exercise of that power.
Sufficiency of the defence against the amended plaint
The respondent's original defence was an effective response to the amended plaint; the interlocutory judgment was wrongly entered.
The amendment merely added detail about the alleged confiscation of goods. In law, amendments relate back to the original pleading, so there was one plaint to answer. The defence specifically denied refusing to release the goods and put the appellants to strict proof, amounting to a joinder of issue under Order VI rule 10(2). The Deputy Registrar erred in entering judgment notwithstanding that defence.
Special damages claim of Kshs. 23,835,255
The claim failed because the special damages were neither specifically pleaded with itemization nor strictly proved by documentary evidence.
The amended plaint disclosed lump-sum figures with no itemized valuation or breakdown. The renovation figure shifted from Kshs. 855,305 to Kshs. 1.4 million with no contract produced; the lease also barred refund of monies spent. Loss of business and value of lost goods had no supporting receipts, valuations or documentary evidence. As first appellate court, the Court found nothing proved.
General damages award of Kshs. 2,000,000 for unlawful eviction
The award was fair and reasonable; the appellate court declined to interfere.
An appellate court interferes with damages only where the judge applied a wrong principle, took into account irrelevant factors or left out relevant ones, or where the award is so inordinately high or low as to be a wholly erroneous estimate. The appellants advanced no specific reasons for finding the award insufficient, so there was no basis for substitution.
Legal principles established
#- Under Order IXA rule 10, a court may set aside an interlocutory judgment on just terms of its own motion; no formal application by a party is required, unlike Order IXB rule 8 which requires an application.
- An amendment to a pleading relates back to the original pleading, so a defence that specifically denied the claims remained effective against an amended plaint without an amended defence.
- Special damages must be both specifically pleaded and strictly proved; they are not the natural or probable consequence of the act complained of and may not be inferred.
- An appellate court will not disturb an award of damages unless the judge proceeded on a wrong principle or misapprehended the evidence, or the award is so inordinately high or low as to be a wholly erroneous estimate.
Court orders
#- 1.Appeal dismissed
- 2.The respondent shall have the costs of the appeal
- On appeal from
- High Court at Nairobi
- HCCC No. 67 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (court's first appellate duty re-evaluating evidence); no specific Article invoked in the judgment.
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.
- Mwamburi t/a Kaddy Fashion and Supplies v Mbololo Ushirika Company Limited (Environment and Land Appeal E015 of 2025) (Environment and Land) [2026] KEELC 2471 (KLR)[2026] KEELC 2471 (KLR)30 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Simon Ndungu Mungai & 1 other v Municipal Council of Kiambu", Case Analysis (2019). Civil Appeal No. 23 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/914/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.