Sawa v Bakary (Civil Appeal E135 of 2023) [2026] KECA 1094 (KLR)
The bottom line
#Kenya's Court of Appeal upheld most damages against a landlord for unlawful eviction but cut the punitive award from Kshs 840,000 to Kshs 200,000.
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 first appellate court failed in its duty to properly re-analyze and re-evaluate the evidence on record and erroneously found that special damages had been proved
- 2.Whether the learned Judge rightly awarded exemplary damages in addition to general damages
- 3.Whether the award of exemplary damages was manifestly excessive
- 4.Whether the awards of interest on general and exemplary damages should accrue from the date of filing suit rather than from the date of Judgment
- 5.Whether interest on special damages should accrue from the date of filing suit notwithstanding that the claim for special damages was introduced by amendment several years after the suit was filed
Key legal issues
#Proof of special damages on second appeal
The first appellate court correctly concluded the Respondent strictly proved special damages; receipts, a list of items and uncontroverted testimony of demolition sufficed.
The claim was specifically pleaded with a breakdown totaling Kshs 404,930 and supported by receipts and witness testimony. On a balance of probabilities, hotel equipment would have been destroyed, lost or stolen upon eviction and demolition. The evidence was uncontroverted, and no wrong legal principle or erroneous conclusion was demonstrated to justify appellate interference.
Entitlement to exemplary damages for unlawful eviction
The eviction, destruction of goods and assault on workers was oppressive, high-handed and calculated to yield profit, squarely fitting the Rookes v Barnard categories; exemplary damages were properly awarded.
The Court applied the established categories permitting exemplary damages: oppressive, arbitrary action, and conduct calculated to profit the defendant beyond compensation. The Appellant evicted without a court order, renovated and re-let at higher rent, increasing his income from Kshs 10,000 to Kshs 24,000 monthly. This was a proper case for exemplary damages.
Quantum of exemplary damages
The award of Kshs 840,000 was disproportionate because the five-year computation period lacked rationale; it was substituted with Kshs 200,000.
Although exemplary damages punish and deter, they must remain proportionate and not cause unjust enrichment. The learned Judge gave no reason for computing the additional rental income over five years. A moderate global award, having regard to the conduct, the nature of the hotel business and the monthly rent, would suffice to punish and deter.
Interest on damages
Interest on general and exemplary damages runs from the date of judgment, not from filing suit; interest on special damages runs from the date of filing suit.
General and exemplary damages are discretionary and only ascertained at judgment, so interest on them cannot run from filing suit. Special damages are quantifiable and often expended before suit, justifying interest from filing. The discretion under Section 26(1) of the Civil Procedure Act must be exercised judicially, and the first appellate court erred in awarding interest on the entire sum from filing suit.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless wrong principles, misapprehension of evidence, or perversity are shown.
- Special damages must be specifically pleaded and strictly proved; receipts and uncontroverted oral evidence coupled with proof of demolition may satisfy strict proof.
- Exemplary damages, though punitive, must remain proportionate to the wrongful conduct and must not result in unjust enrichment.
- Interest on general and exemplary damages accrues from the date of judgment, while interest on special damages accrues from the date of filing suit.
Court orders
#- 1.Special damages of Kshs 403,000 upheld
- 2.Loss of income of Kshs 36,000 upheld
- 3.General damages of Kshs 250,000 upheld
- 4.Exemplary damages of Kshs 840,000 set aside and substituted with an award of Kshs 200,000
- 5.Interest on special damages and loss of income to accrue from the date of filing the suit upheld
- 6.Interest on general and exemplary damages to accrue from the date of the Judgment of the Environment and Land Court delivered on 11th October 2022
- 7.Costs of the appeal to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Not stated
- Jurisdiction invoked
- Second appellate jurisdiction of the Court of Appeal confined to matters of law
Relief refused
#Reduction or setting aside of the awards of special damages, loss of income and general damages
The appellant did not demonstrate that the first appellate court applied wrong legal principles; concurrent findings on liability and proof of special damages stood
Interest on special damages from the date of the amendment rather than the date of filing suit
The Court upheld interest on special damages and loss of income accruing from the date of filing suit
Costs
Since the appeal fails in substantial part, 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.
This being a second appeal, our jurisdiction is confined to matters of law only.
The law on special damages is well settled. The claim must be specifically pleaded and strictly proved.
Exemplary damages, though aimed at being punitive in nature, must nevertheless remain proportionate to the wrongful conduct proved and should not result in unjust enrichment.
Interest on special damages is ordinarily awarded from the date of filing suit, while interest on general damages is awarded from the date of judgment because general damages are at the discretion of the court and are only ascertained at the time of judgment.
i. Special damages of Kshs 403,000 are hereby upheld; ii. Loss of income of Kshs 36,000 is hereby upheld; iii. General damage of Kshs 250,000 are hereby upheld; iv. Exemplary damages of Kshs 840,000 hereby set aside and substituted therefor with an award of Kshs 200,000; v. Interest on special damages and loss of income to accrue from the date of filing the suit is uheld; and vi. Interest on general and exemplary to accrue from the date of the Judgment of the Environment and Land Court delivered on 11th October 2022. vii. Since the appeal fails in substantial part, costs to the Respondent.
Issues in the judgment
#Discrepancy in amounts: the pleaded special damages total is Kshs 404,930 while the award upheld is Kshs 403,000, without explanation in the judgment.
Date discrepancy in the judgment text: an earlier passage records the ELC judgment date as 11th October 2022, and the final orders confirm this, but the body does not otherwise state when the first appellate judgment was delivered.
The record does not state the Court of Appeal case number or neutral citation for this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sawa v Bakary (Civil Appeal E135 of 2023) [2026] KECA 1094 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1094/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.