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Court of AppealDismissedCivil Appeal (as numbered at Mombasa; memorandum of appeal dated 25th May 2023)

Francis v Mash East Africa Ltd (Civil Appeal E078 of 2023) [2026] KECA 45 (KLR)

Court of Appeal of Kenya
30 January 2026
3,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you can only win a loss of income claim if you keep and produce records proving exactly what you earned.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa against the High Court's dismissal of the appellant's challenge to the trial court's refusal to award Kshs. 67,500 as loss of user of his tuktuk following a road traffic accident with the respondent's bus. The trial court had awarded the appellant special and general damages totalling Kshs. 272,820 but declined the loss-of-user claim for want of strict proof. The High Court (F. Wangari, J.) held that loss of user is special damage which must be strictly proved and dismissed the appeal with costs. On second appeal, the Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJ.A.) confined itself to points of law under section 72(1) of the Civil Procedure Act and framed a single issue: whether the learned Judge erred in holding that the loss-of-user claim had not been proved to the required standard. The Court affirmed the settled position, drawn from David Bagine v Martin Bundi and Kiiru v Kenya Ferry Services, that damages under the title 'loss of user' are special damages which must be specifically pleaded with particularity and strictly proved, and cannot be awarded on guesswork or mere presumption. It rejected the appellant's submission that such a claim belongs to general damages, distinguished Samuel Kariuki Nyangoti and Mitchell Cotts on their facts, and held that the respondent's failure to cross-examine did not shift the appellant's burden of strict proof. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in holding that the appellant had not proved his claim for loss of user to the required standard

Key legal issues

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01

Whether loss of user is general or special damages and the standard of proof applicable

Holding

Loss of user is special damage which must be specifically pleaded with particularity and strictly proved; it cannot be equated to general damages or awarded on guesswork.

Reasoning

The Court endorsed the long-standing line of authority beginning with David Bagine v Martin Bundi, holding that loss of user is what the claimant suffers specifically and cannot be assessed in the standard 'doing the best I can' phrase applied to general damages. The claimant must demonstrate by factual evidence, with specificity, the basis of the figure claimed, and failure by the defendant to cross-examine does not relieve the claimant of that burden of strict proof.

p. 5
02

Whether the learned Judge erred in upholding the trial court's rejection of the Kshs. 67,500 loss-of-user claim

Holding

No error was shown; the appellant admitted he had no records of his alleged income, and the claim rested on his word alone.

Reasoning

The appellant conceded on cross-examination that he kept no record of his daily earnings. The Court distinguished Samuel Kariuki Nyangoti, where the claimant had given concrete evidence of routes, trips per day, earnings per trip and expenses, and Mitchell Cotts, where the amount had been specifically admitted by the respondent. Neither case supported an award on mere presumption.

p. 6
03

The scope of the Court's jurisdiction on a second appeal

Holding

The Court's mandate on a second appeal is limited to points of law under section 72(1) of the Civil Procedure Act.

Reasoning

Relying on Stanley N. Muriithi v Bernard Munene Ithiga and Kenya Breweries Ltd v Godfrey Odoyo, the Court confined itself to matters of law, resisting invitations by counsel to revisit evidential matters of fact, which fell outside its remit on second appeal.

p. 3

Legal principles established

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  • Damages claimed under the title 'loss of user' are special damages which must be specifically pleaded with particularity and strictly proved; they cannot be awarded as general damages on the basis of guesswork or mere presumption.
  • Failure to cross-examine a claimant on a loss-of-user claim does not amount to an admission and does not shift or negate the claimant's burden of strict proof.
  • A claimant must demonstrate by factual evidence, and with specificity, the justification for loss-of-user damages; it is not enough to make a sweeping statement of daily or periodic income.
  • On a second appeal, the Court of Appeal's mandate is confined to matters of law and it will not interfere with concurrent findings of fact.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Mombasa
Civil Appeal No. E034 of 2020
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal lying to the Court of Appeal on matters of law)

Relief refused

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Judgment for Kshs. 67,500 as loss of user of the tuktuk

Loss of user is special damage which must be specifically pleaded with particularity and strictly proved; the appellant admitted he had no records of his income and the claim was not strictly proved

p. 6

Costs of the appeal and of the appeal in the High Court

The appeal failed and was dismissed with costs to the respondent

p. 6

Costs

Appeal dismissed with costs to the respondent.

Quotable passages

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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 find that the appeal fails and is hereby dismissed with costs. Orders accordingly.
p. 6Final orders - dismissal of the appeal
the immutable principle at common law that a claim for special damages, as was the case here, need to be specifically pleaded with particularity and strictly proved.
p. 5Strict proof of special damages / loss of user
Neither does the respondent's failure to cross-examine the appellant's testimony on loss of user amount to an admission or otherwise shift or negate the appellant's burden of strict proof of loss of user
p. 5Effect of absence of cross-examination on burden of proof
it is not enough to make a sweeping statement that this or that figure was the daily or periodic income earned from the business, and that it was lost due to the misfortune complained of.
p. 6Evidentiary specificity required for loss-of-user claims
We take to mind the immutable principle that special damages must be specifically pleaded and strictly proved with particularity and certainty as they represent actual, quantifiable, out-of-pocket expenses, not foreseeable consequences that may be inferred from the incident
p. 6Nature of special damages

Issues in the judgment

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minor

The appellant's memorandum of appeal is dated 25th May 2023 and counsel's supporting submissions are dated 26th June 2023, yet the respondent's submissions are dated 28th May 2025, an unexplained delay of nearly two years not addressed in the judgment.

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, "Francis v Mash East Africa Ltd (Civil Appeal E078 of 2023) [2026] KECA 45 (KLR)", Case Analysis (2026). Civil Appeal (as numbered at Mombasa; memorandum of appeal dated 25th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/45/eng@2026-01-30

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