Otieno v China Jiangxi International Kenya Limited

5. Aggrieved, the respondent led an appeal in the High Court of Kenya at Homa Bay, the precursor to this appeal. Upon reviewing and re- evaluating the evidence presented in the trial court, the rst appellate court found that while the agreement was not substantially disputed, the obligation to undertake repairs at the respondent’s cost was not expressly stipulated. It held that the appellant had failed to prove the repair costs, having relied solely on an inventory without supporting invoices or receipts. It further found that the claim for September 2017 rent was untenable, as the respondent had vacated the premises in August 2017. It consequently allowed the appeal with costs. 6. The appellant, being dissatised with the judgment and decree of the rst appellate court, lodged this second and perhaps last appeal contending that the rst appellate court erred in law and fact by concluding that the evidence presented was inadequate to establish the respondent’s liability; failing to undertake a proper and impartial evaluation of the evidence; and misapplying the relevant provisions of the Civil Procedure Act, the Civil Procedure Rules and the Evidence Act, in allowing the respondent’s appeal. 7. The appeal was heard by way of written submissions only. When called out, Mr. Odhiambo, learned counsel appeared for the appellant. Neither the respondent nor its counsel were present though served with the hearing notice for the day by the court. Since it had led written submissions through Messrs. Anyumba & Company Advocates, the court opted to proceed with the hearing, its absence notwithstanding. 8. Counsel for the appellant, submitted that the rst appellate court erred in holding that the appellant had not spent Kshs.180,000/= in repairing the premises. Counsel relied on the agreement, which clearly stipulated that the respondent was responsible for repairing the premises upon expiry of the lease and or its vacation thereof. 9. Counsel submitted that the obligation to repair and restore the premises to a habitable state lay with the respondent. It was contended that the rst appellate court erred by concluding that the appellant had failed to prove the expenditure of Kshs.180,000/=, despite the Plaint indicating that the said amount was the estimated cost of repairs. 10. Counsel emphasized that the agreement required the respondent to obtain an inventory from the appellant and undertake repairs or replacements at his own cost. He submitted that the rst appellate court misinterpreted the terms of the agreement, which constituted an error of law, by concluding that the appellant had not spent the amount claimed in the Plaint, rather than recognizing it was a projected expenditure. Counsel further noted that the rst appellate court had failed to appreciate that the respondent did not call any witness to rebut his case. In conclusion, counsel urged the Court to allow the appeal in its entirety. 11. The appeal was opposed by the respondent, stating, that during cross-examination, the appellant admitted that the premises were vacated in August 2017, yet he claimed rent for the month of September 2017. That the appellant also conceded that he personally prepared the inventory and quantied the damages, despite lacking any professional qualications in the eld. He further admitted that the repairs had not been undertaken and that the Kshs.209,000/- claim was based on market estimates. The respondent submitted that the appellant’s claim was in the nature of special damages, which must be specically pleaded and strictly proved. In this case, although the appellant pleaded the amount as special damages, he failed miserably to specically prove the claim. The appellant’s own testimony conrmed that he had not incurred any expense towards the repairs of the premises. The respondent relied on the case of Hahn v Singh [1985] KECA 129 (KLR) where this Court held that special damages must not only be pleaded but also strictly proved, as they are not the direct or probable consequence of the act complained of. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2216/eng@2025-11-28 2

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12. Additionally, the award of Kshs.19,000/- for rent arrears for month of September 2017 was inconsistent with the appellant’s own testimony that the premises had been vacated in August 2017. In light of all the foregoing, the respondent urged this Court to uphold the judgment of the High Court and dismiss the present appeal with costs. 13. This is a second appeal. The jurisdiction of this Court to entertain second appeals is anchored on Section 79D of the Civil Procedure Act, which provides that a second appeal lies to the Court of Appeal only on matters of law. This injunction has been reiterated in numerous decisions of this court, including Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR, where the Court held that factual ndings of the rst appellate court are generally binding to this Court unless it is demonstrated in reaching those ndings, the rst appellate court acted on no evidence, misapprehended the evidence, or drew wrong conclusions from the evidence. 14. The central issue for determination in this appeal is whether the rst appellate court erred in law in setting aside the trial court’s judgment. 15. The appellant’s case in the trial court was premised on the agreement upon which the respondent occupied his residential premises. Upon termination of the agreement, the appellant claimed that the respondent failed to undertake repairs as required by the terms of the agreement, thereby necessitating the expenditure of Kshs.180,000/= for repairs and a further loss of Kshs.29,000/= in unpaid rent for the month of September 2017. 16. It is trite law that special damages must not only be pleaded with specicity but also strictly proved. This principle was authoritatively reiterated in Hahn v Singh (supra), thus: “ Special damages must be pleaded and proved. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.” 17. In the instant case, the appellant pleaded special damages of Kshs.209,000/= but failed to produce receipts, invoices, or expert reports to substantiate the alleged repair costs. Essentially special damages are in the nature of a refund of what has been expended by a party. The appellant’s testimony conrmed that the repairs had not been undertaken and that the gures he had pleaded were mere estimates based on market trends. That he is the one who prepared the assessment report, yet he had absolutely no qualications in that eld. The rst appellate court was therefore correct in nding that the evidentiary threshold for the award of special damages pleaded had not been met. 18. On the rent for the month of September 2017, the appellant admitted during cross-examination that the respondent vacated the premises in August 2017. The claim for rent for the month of September was therefore unfounded. The High Court’s nding on this ground was consistent with the evidence on record. 19. On revaluation of the evidence by the rst appellate court, the appellant contended that in so doing, it misinterpreted the agreement and failed to appreciate that the obligation to repair was contractually assigned to the respondent. While the agreement did contain provisions on maintenance, the rst appellate court correctly noted that the obligation to repair at the respondent’s cost was not expressly stipulated in a manner that would justify the award of damages without supporting evidence. 20. In Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212, this Court reiterated that an appellate court will not interfere with ndings of fact by the trial court and rst appellate court unless it is shown that such courts misapprehended the evidence or acted on wrong principles. In this case, the rst appellate court properly re- evaluated the evidence and applied the correct legal principles in arriving at its decision. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2216/eng@2025-11-28 3

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21. Having considered the record, the submissions of both parties, and the applicable law, we nd no error of law in the judgment of the rst appellate Court. The appeal in the premises lacks merit and is accordingly dismissed with no order as to costs. DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF NOVEMBER, 2025. ASIKE-MAKHANDIA ............................... JUDGE OF APPEAL H.A. OMONDI ............................... JUDGE OF APPEAL L. KIMARU ............................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2216/eng@2025-11-28 4

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