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Court of AppealPartially AllowedSecond Appeal from Kakamega Civil Appeal No. 12 of 2018· [2026] KECA 342 (KLR)

Jeremiah Makore Wetende v Solomon Luyali T/A Lumo Blues Guest House

Court of Appeal of Kenya
27 February 2026
ASAsike-MakhandiaHOH.A. OmondiLKL. Kimaru
2,647 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed stolen-goods compensation failed because damages weren't specifically pleaded, but corrected the costs order against the guest.

What this practically means

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Executive summary

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The appellant, a guest at the respondent's guest house in Kakamega, sued after his laptop and tablet phone were stolen from his room, quantifying the loss at Kshs.75,999/- but pleading only general damages. The trial magistrate awarded the quantified sum with costs and interest. On first appeal, the High Court held the claim was in substance one for special damages which had not been specifically pleaded and proved, set aside the award, and dismissed the suit with costs. On second appeal, the Court of Appeal, confined to matters of law under Section 72(1) of the Civil Procedure Act, framed two issues: whether the first appellate court erred in law on the special damages point, and whether it misjudged costs. The Court held there was no error of law: the law is settled that special damages must be specifically pleaded and strictly proved, parties are bound by their pleadings, and the trial court had no business rewriting a general damages prayer into a special damages award; the appellant's failure to amend was his own doing. On costs, however, the Court found the first appellate court erred in principle: it affirmed the finding of negligence against the respondent yet awarded him costs of the first appeal without giving any reasons for departing from the principle that costs follow the event. The appeal succeeded only on costs. The Court set aside the costs order and substituted an order that each party bear his own costs in the Court of Appeal and in the first appellate court.

Key legal issues

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01

Pleading and proof of special damages

Holding

The trial court improperly awarded a quantified sum as special damages where the plaint prayed only for general damages; parties are bound by their pleadings

Reasoning

Special damages must be specifically pleaded and strictly proved. Although receipts were produced showing the purchase price of the stolen items, the prayer remained for general damages, so the trial court converted an unpleaded claim into an award. The appellant could have amended his prayer during the hearing but did not, and the trial court had no mandate to rewrite the prayers on his behalf.

p. 4
02

Discretion on costs

Holding

The first appellate court erred in principle by awarding costs to the respondent without giving reasons despite affirming the finding of negligence against him

Reasoning

Costs follow the event unless the court orders otherwise for good reason. An appellate court will not interfere with a discretionary award on costs unless it was exercised unjudicially or on wrong principles, or where no reasons are given and the order is wrong. Here the judgment disclosed no reasons for the departure, rendering the exercise of discretion questionable once liability was affirmed against the respondent.

p. 5

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved, and a court may not rewrite a prayer for general damages into an award of special damages
  • Second appeals to the Court of Appeal are confined to matters of law only
  • Costs follow the event, but where a court departs from that principle it must give reasons; an unexplained departure from the principle in the face of a finding of fault is an error in principle

Court orders

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  1. 1.Appeal allowed only to the extent of setting aside the order on costs made by the first appellate court
  2. 2.Substituted order that each party shall bear his own costs in this Court as well as in the first appellate court
On appeal from
High Court of Kenya at Kakamega
Civil Appeal No. 12 of 2018
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act - second appeals lie on matters of law only

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, "Jeremiah Makore Wetende v Solomon Luyali T/A Lumo Blues Guest House", Case Analysis (2026). Second Appeal from Kakamega Civil Appeal No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/342/eng@2026-02-27

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