Nkoroi v Muchina (Civil Appeal E099 of 2022) [2025] KECA 965 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a claim for damaged household goods because the plaintiff never stated or proved the value of the lost items.
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 appeal is competently before the Court
- 2.Whether the learned Judge erred in law in dismissing the appeal on the ground that the appellant failed to prove his claim before the trial court
Key legal issues
#Competency of the appeal where no strike-out application was filed within the prescribed period
The objection to competency failed because it was raised by preliminary objection rather than by a motion under rule 44, and was taken outside the thirty-day window in rule 86.
Rule 86 empowers the Court to strike out a notice or record of appeal where no appeal lies or an essential step was not taken within prescribed time, but bars such applications brought after thirty days from service of the notice or record of appeal. No application under rule 86, nor any formal application under rule 44, was filed. A preliminary objection is not a prescribed mode of application. The objection was therefore both procedurally improper and out of time, and lacked merit.
Proof of special damages in a claim for missing and damaged goods
The appellant failed to plead the values of the items in the plaint and failed to prove them; photographs and receipts attached to submissions could not supply the deficiency.
Special damages must be specifically pleaded and strictly proved. The plaint listed the items but assigned no value, and neither the witness statement nor submissions revealed their value. Receipts were allegedly filed with submissions, but submissions are not a means of adducing evidence; documents are produced by consent or during a party's evidence under Order 14 rule 1(1) and Order 18 rule 2 of the Civil Procedure Rules. No valuation report was produced. The concurrent findings of the two courts below could not be disturbed on second appeal.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law and does not revisit findings of fact.
- Special damages must be pleaded with particularity, including the values of the items claimed, and strictly proved.
- Evidence may not be adduced through submissions; documents are produced either by consent or at the time the party gives evidence.
- An objection to the competency of an appeal under rule 86 of the Court of Appeal Rules must be brought by way of a formal application within thirty days of service of the notice or record of appeal; a preliminary objection does not suffice.
Court orders
#- 1.The appeal was dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kerugoya
- Civil Appeal No. 33 of 2018
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal on points of law)
Relief refused
#Setting aside of the High Court judgment and allowance of the appeal
The appellant failed to plead or prove the value of the items claimed as special damages; the Court would not interfere with concurrent factual findings of the two lower courts
Costs
The appeal was dismissed with costs to the respondent.
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.
We, accordingly, find no merit in this appeal which we hereby dismiss with costs.
Submissions is not a means through which evidence is adduced.
A preliminary objection is not one of the ways prescribed for making applications before this Court.
Since the values of the items were not pleaded, they could not have been produced without an amendment to the plaint.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkoroi v Muchina (Civil Appeal E099 of 2022) [2025] KECA 965 (KLR)", Case Analysis (2025). Civil Appeal No. NYR E099 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/965/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.