Njogu v County Government of Uasin Gishu (Civil Appeal 12 of 2020) [2025] KECA 1040 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a trader's bid to recover business losses, ruling you must prove your damages and cannot profit from illegal conduct.
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 learned Judge of the High Court failed to consider the appellant's submissions on the first appeal
- 2.Whether the appellant was given a notice (raised for the first time on second appeal)
- 3.Whether the learned Judge failed to consider the law in determining the issues of quantum
- 4.Whether the learned Judge failed to consider the direction that the appellant be allocated an alternative plot
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal
Section 72 of the Civil Procedure Act confines the Court to questions of law; the Court must resist delving into matters of fact.
Section 72 permits second appeals only on grounds that the decision is contrary to law, failed to determine a material issue of law, or contains substantial procedural error. The Court endorsed Kenya Breweries Ltd v Godfrey Odoyo, adopting Chesoni Acting JA's formulation that an appellate court restricted to questions of law must accept findings of fact of the lower courts unless no reasonable tribunal could have reached them. The complaint that the Judge ignored the law on quantum and submissions was therefore examined only as an alleged error of law.
Whether the first appellate Judge failed to consider the appellant's submissions
The allegation fails; the Judge's judgment extensively considered the parties' submissions and re-evaluated the evidence.
While an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence (Selle v Associated Motor Boat Co), an allegation that the first appellate court failed to do what the law enjoins is a matter of law properly interrogatable on second appeal. Here the judgment analysed and re-evaluated the evidence rather than reproducing it, which is all that is required, and the Court was unable to fault the Judge.
Proof of damages for loss of business
The appellant did not adduce sufficient evidence to support the number of days claimed; damages must be proved, not merely pleaded.
The learned Judge correctly stated the principles that damages must be pleaded and supported by evidence. The claim for 112 days' lost income at Kshs. 4,000 per day was unsupported; the criminal cases were disposed of summarily, and the appellant made no attempt to justify the days in his plaint or to mitigate his loss. Following Idi Ayub Omari Shabani v City Council of Nairobi, particulars thrown at the head of the court do not discharge the burden of proof.
Entitlement to compensation arising from the appellant's criminal culpability
A plaintiff who admits guilt to offences and is dealt with by law cannot claim compensation for consequences of that illegal conduct; ex turpi causa bars the claim.
The appellant pleaded guilty on two occasions and was discharged under section 35(1) of the Penal Code. Applying Holman v Johnson and Scott v Brown, Doering, Mcnab & Co, the Judge found no court should enforce obligations arising from illegal transactions. The Court of Appeal reiterated Lord Mansfield's dictum and held the appellant, having been found criminally culpable on his own plea, could not benefit from that wrongdoing.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and may not interfere with findings of fact of the courts below unless no reasonable tribunal could have reached them or the decision is perverse.
- A plaintiff claiming damages must prove the damage pleaded; it is not enough to set out particulars and expect the court to award them.
- No court will lend its aid to a party whose cause of action arises from an illegal act (ex turpi causa); a person found criminally culpable cannot benefit from that wrongdoing.
- A first appellate court must analyse and re-evaluate the evidence, but is not required to write a judgment replicating that of the trial court.
- An issue of fact not raised before the first appellate court cannot be entertained for the first time on second appeal.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs as the respondent did not appear
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- High Court Civil Appeal No. 130 of 2015
- Jurisdiction invoked
- Section 72 of the Civil Procedure Act (second appeal confined to matters of law)
Relief refused
#Setting aside of the High Court judgment and reinstatement of the trial court's award of Kshs. 120,000 for loss of business
The appeal was found devoid of merit; the second appellate court is confined to matters of law, the Judge had properly considered the submissions and evidence, and the appellant, having been found criminally culpable on his own plea, could not benefit from his wrongdoing.
Determination of the allegation that the appellant was not given a notice
It is an issue of fact on which this Court cannot venture on second appeal, and it was not raised before the first appellate court.
Costs
No order as to costs, as the respondent did not appear
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.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
We have considered this appeal which we find it devoid of merit.
We dismiss the same but with no order as to costs as the respondent did not appear.
It is so ordered.
Issues in the judgment
#The judgment cites Holman v Johnson with the year printed as '[17775]', an apparent typographical error for 1775.
The names of the actual parties to this appeal are not stated anywhere in the judgment as extracted; the parties are identified only as 'the appellant' and 'the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogu v County Government of Uasin Gishu (Civil Appeal 12 of 2020) [2025] KECA 1040 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (from High Court Civil Appeal No. 130 of 2015, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1040/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.