Mjengo Limited v Menengai Oil Refineries Limited
The bottom line
#Kenya's Court of Appeal dismissed a distributor's appeal, confirming a Kshs. 38.7 million debt because unpleaded counter-claims and unproven special damages cannot win cases.
What this practically means
#Executive summary
#Key legal issues
#Proof of special damages
The respondent's claim for Kshs. 38,703,041 was specifically pleaded in the plaint and strictly proved through uncontroverted invoices, delivery notes and testimony; the trial court's finding was affirmed.
The plaint particularised the supply of goods, their value, the refusal to pay and the interest claim. The invoices were produced by the respondent's managing director and accountant, and the appellant's witness expressly did not object to them in cross-examination, rendering them uncontroverted. The court therefore found the required standard of proof met and affirmed the trial judge.
Failure to file a counter-claim or set-off
The appellant's failure to plead a counter-claim or set-off for commission was fatal; an unpleaded claim cannot support a defence or found relief.
Relying on Nairobi City Council v Thabiti Enterprises, the court held a court should not grant a counter-claim unless pleaded. Even if the commission had been contractual, the respondent could not be condemned for breach because the appellant never counter-claimed. The trial court's hands were tied by the absence of supporting pleadings.
Contractual status of commission and promissory estoppel
These issues were rendered otiose by the findings on pleading and proof; and in any event the elements of promissory estoppel did not exist on the facts.
Having affirmed the findings on special damages and the fatal absence of a counter-claim, the court declined to determine whether the commission was contractual or ex-gratia, as it would serve no utilitarian purpose. On promissory estoppel, the termination of the ex-gratia scheme was communicated, the appellant continued trading, and no clear and unequivocal promise intended to create legal relations and acted upon to detriment existed.
Selectivity in evaluation of evidence
The learned judge considered all the evidence; the ground of selectivity failed.
A judgment need not be a transcript of proceedings; it must embody all material evidence. The appellate court must juxtapose the evidence against the judgment to determine whether there is a basis for interference. Having read the evidence and the impugned judgment, the court was satisfied the judge considered all the evidence tendered.
Legal principles established
#- Special damages must be both specifically pleaded and strictly proved before a court can award them; they cannot be inferred from the act in question.
- A court cannot grant relief on a counter-claim or set-off that has not been pleaded; failure to counter-claim is fatal to a defendant's unpleaded demand.
- On a first appeal, the court is obligated to re-evaluate all the evidence and arrive at its own independent conclusions, while bearing in mind it did not see or hear the witnesses.
- A trial court must evaluate all the evidence and its conclusion must account for all the evidence; failure to deal with a material fact amounts to misdirection justifying appellate interference only if material to the judgment.
Court orders
#- 1.Dismissal of the appeal
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nakuru
- Nakuru High Court Civil Case No. 79 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal jurisdiction (appellant sought to set aside the High Court judgment; the judgment itself does not quote the specific provision)
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.
- Suleiman & 4 others v Issa & 2 others (Environment and Land Case 398 of 2017) [2026] KEELC 4484 (KLR)[2026] KEELC 4484 (KLR)9 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mjengo Limited v Menengai Oil Refineries Limited", Case Analysis (2025). Nakuru Civil Appeal (from Nakuru High Court Civil Case No. 79 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/85/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.