Board of Governors Mother Theresa Fantoni Primary School & another v Mbau & another (Civil Appeal E050 of 2023) [2026] KEHC 17446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. E050 OF 2023

BOARD OF GOVERNORS MOTHER THERESA

FANTONI PRIMARY SCHOOL…………………………………...1ST APPELLANT

REGISTERED TRUSTEES OF THE CONGREGATION OF

THE DAUGHTERS OF ST FRANCIS DE SALES……………….. 2ND APPELLANT

VERSUS

ERIC MBAU………………………………………………………....1ST RESPONDENT

AG PLUS E.A. LIMITED…………………………………………..2ND RESPONDENT

(Being an appeal from the judgment of Hon. B.A. Luova, Adjudicator, delivered on 23rd February 2023 in Small Claims Court at Machakos Claim No. E265 of 2022)

JUDGMENT

1. This is an appeal arising from the assessment of damages in a material damage claim brought by the Appellants against the Respondents for causing destruction of their property by a motor vehicle belonging the 1st Respondent.

2. The Appellants were the Claimants in the Small Claims Court. Their case was that on 26th June 2022, motor vehicle registration number KCZ 083N, which belongs to the 1st Respondent, was so recklessly, carelessly or negligently driven that it veered off the road and rammed into the 2nd Appellant's premises, extensively destroying the perimeter wall, sign post, gate and guard house.

3. By a statement of claim dated 9th September 2022, the Appellants sought the cost of repair, estimated at Kshs. 682,640/= on a bill of quantities. With leave of the court, they amended the claim on 18th November 2022 and raised the sum to Kshs. 834,750/=, together with costs and interest. They filed a further list of documents dated 17th November 2022. It contained a letter from Deo Builders dated 12th October 2022 setting out the scope of works and the time needed to complete them, a plan of the scope of work, and a receipt for Kshs. 834,750/=.

4. The 1st Respondent, Eric Musee Mbau, filed a response dated 19th October 2022, amended on 22nd November 2022. He denied the claim in its entirety and blamed the accident on the absence of signage or warning at a road construction site. He also disputed quantum. He produced photographs of the damaged premises and of what was constructed after the accident, and the report dated 24th November 2022 of Proximate Adjusters Limited. The report was produced by RW2, a chartered loss adjuster and the Managing Director of that company, who reassessed the bill of quantities at Kshs. 447,833/= using prices recommended by the Institute of Surveyors of Kenya (ISK). RW2 also testified that the new gate, sign posts and guard house were upgraded and that the sum of Kshs. 834,750/= was not itemized.

5. The Adjudicator dismissed the claim against the 2nd Respondent, found the 1st Respondent 100% liable, and awarded Kshs. 682,640/= as the cost of repair with costs and interest. The Appellants, dissatisfied with the award on quantum, filed a memorandum of appeal on 17th March 2023 on the following grounds:

“(i) THAT the Learned Adjudicator erred in law in awarding the claimants Kshs. 682,640/= as cost of repairs as opposed to Kshs. 834,750/= as claimed in the amended statement of claim dated 18th November, 2022.

(ii) THAT the learned Adjudicator erred in law in failing to find that the claimants had proved with evidence that the costs of repairs it incurred amounted to Kshs. 834,750/=.

(iii) THAT other grounds and reasons to be adduced at the hearing hereof.”

6. They ask that the appeal be allowed, that judgment be entered in their favour for Kshs. 834,750/=, and that the costs of the appeal be borne by the Respondent.

7. The 1st Respondent opposes the appeal. He states that he has already settled the decretal sum and asks that the appeal be dismissed with costs. The 2nd Respondent did not take part in the appeal.

The Submissions

The Appellants' Submissions

8. The Appellants' submissions are dated 17th April 2026. They state that the appeal is confined to quantum and that it raises a point of law, being the improper application of the principles governing proof and award of special damages. They rely on Lusoi Greens Limited v Tibi (Civil Appeal E530 of 2023) [2025] KEHC 3307 (KLR) for the duty of a first appellate court and on Butt v Khan [1981] KLR 349 for the circumstances in which an appellate court will interfere with an award of damages.

9. They submit that the Adjudicator was inconsistent. He rejected the loss adjuster's report for want of proof of the ISK guidelines, yet he did not award the full sum claimed and supported by evidence. They submit that the amended claim and the Deo Builders receipt and letter superseded the earlier estimate, that the Adjudicator relied on a superseded figure, and that no reasons were given for the reduction. They rely on Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] KEHC 2976 (KLR) for the proposition that special damages are proved by a receipt, and they say they produced one.

The 1st Respondent's Submissions

10. The 1st Respondent's submissions are dated 2nd June 2026. He relies on Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR and Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2EA 212 for the role of the court, and on Peters v Sunday Post Limited [1985] EA 424 for the caution with which an appellate court differs from findings of fact made by the court that saw and heard the witnesses.

11. He submits that the Appellants gave contradictory evidence on special damages, that the figure of Kshs. 834,750/= is an unitemised lump sum and only an estimate, and that no receipt was produced for it. He submits that the new structures are more costly than what was destroyed, that the loss adjuster's evidence supports this, and that the principle is restitutio in integrum. He relies on Kamau v Simiyu (Civil Appeal E055 of 2022) [2025] KEHC 8926 (KLR) for the principle that damages are never awarded to enrich a claimant beyond actual loss.

12. This court notes that some of the authorities are misplaced. Lusoi Greens (supra), Abok James Odera (supra) and Kenya Ports Authority (supra) concern the duty of a first appellate court to re-evaluate evidence, which section 38 does not permit here. Its point that a receipt rather than an invoice proves special damages is not in dispute, because the Appellants did produce a receipt. The question was the sufficiency of that receipt, which is a matter for the trial court. The 1st Respondent cites Peters v Sunday Post Limited as reported in 1985, but that decision is reported at [1958] EA 424, and it also concerns findings of fact. Kamau v Simiyu (supra) states the principle of restitutio in integrum, which is not in dispute. The Adjudicator did not need it to reach his conclusion and the award does not enrich the Appellants. The 1st Respondent filed no cross-appeal, so his arguments that the award should have been lower are not before this court. His payment of the decretal sum does not make the appeal academic, because the Appellants seek a higher sum.

Issues for Determination

13. The following issues arise for determination noting that appeals from the Small Claims Court to this court are on matters of law only:

(i) Whether the appeal raises matters of law within section 38 of the Small Claims Court Act.

(ii) Whether the Adjudicator erred in law in awarding Kshs. 682,640/= instead of Kshs. 834,750/=.

(iii) Who should bear the costs of the appeal?

Analysis and Determination

Whether the appeal raises matters of law

14. This court has considered the memorandum of appeal, the record of appeal, the rival submissions, the authorities cited by both parties and the law. The Appellants cited the duty of the court through Lusoi Greens (supra) and the 1st Respondent through Abok James Odera (supra), but the right of appeal here is created and limited by statute. Section 38 of the Small Claims Court Act provides:

“38. (1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.”

15. This court therefore does not rehear the claim or re-weigh the evidence. Its task is to decide whether the Adjudicator misdirected himself on the law, and in that respect its role is akin to that of the Court of Appeal on a second appeal. In the case of Karanja v Murigi (Civil Appeal 68 of 2019) [2025] KECA 517 (KLR), the Court of Appeal, in dealing with an appeal confined to matters of law, cited its decision in Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR as follows:

In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. 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.”

16. This court is of the view that whether a sum claimed has been proved is largely a question of fact, but whether the Adjudicator applied the correct principles on the proof of special damages is a question of law. The appeal is competent to the latter only.

Whether the Adjudicator erred in law in awarding Kshs. 682,640/= instead of Kshs. 834,750/=

17. The general approach of an appellate court to an award of damages was stated in the case of Butt v Khan [1981] KLR 349, in which Law JA said:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was inordinately high or low.”

18. The claim before the Adjudicator was for the cost of repairing damaged property, and such a claim is one for special damages (see David Bagine v Martin Bundi (Civil Appeal 283 of 1996) [1997] KECA 54 (KLR)). Further, in the case of Vishva Stones Supplies Company Limited v RSR Stone (2006) Limited (Civil Appeal (Application) E308 of 2020) [2024] KECA 978 (KLR), the Court of Appeal restated the rule, citing Hahn v Singh [1985] KLR 716:

“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

19. The burden lies with the claimant to strictly prove the sum claimed. The court is cognizant of the provision of Section 32 of the Small Claims Court Act which relaxes the rules of evidence in that court, but is of the opinion that the burden of proof is not displaced by that provision.

20. The Adjudicator directed herself correctly on that burden. On page 4 paragraph 15 of her judgment, she cited Karugi & Another v Kabiya & 3 Others [1987] KLR 347, which holds that the burden on a plaintiff to prove his case remains the same throughout even where the matter is not validly defended. She then made three findings on the evidence. First, the photographs filed by the 1st Respondent showed a remarkable difference between the premises before and after renovation, such as an iron sheet roof replaced by a slab roof and a more modern perimeter wall. Second, it was not clear whether the receipt for Kshs. 834,750/= was the total cost of renovating the damaged premises or whether the cost was higher. Third, the receipt was not itemized, so the court could not assess how the figure was reached. She concluded at paragraph 16 that the sum of Kshs. 834,750/= had not been sufficiently proved.

21. The Adjudicator did not hold that no receipt existed. She recorded it at paragraph 10 of her judgment and considered it. The 1st Respondent's submission that no receipt was produced is therefore not borne out by the record. What the Adjudicator found was that the receipt, read with the photographs and the scope of works, did not show how much of the sum went to restoring what the accident destroyed and how much went to improvements. Nothing in the finding discloses an error of principle.

22. The alleged inconsistency does not arise. The rejection of the loss adjuster's figure of Kshs. 447,833/= and the refusal of Kshs. 834,750/= rest on different footings. The first failed because the 1st Respondent did not produce the ISK guide on which his reduction was based. The second failed because the Appellants did not discharge their own burden. The weakness of the defence evidence does not prove the claim, which is the very point of Karugi & Another v Kaiya & 3 Others (supra). The sum awarded was the Appellants' own itemized bill of quantities, which they pleaded and produced and which the defence evidence did not displace. The submission that the earlier estimate was superseded confuses a pleading with evidence. The amended claim replaced the pleaded figure, but the bill of quantities remained an exhibit that the Adjudicator was entitled to use as the guide to the cost of repair. A court that finds the higher sum unproved may lawfully award the lower sum that is proved. The Adjudicator gave his reasons at paragraphs 15 and 16, so the complaint that no reasons were given also fails.

23. For these reasons, the Appellants have not shown that the Adjudicator misdirected herself on the law governing special damages or proceeded on a wrong principle or misapprehended the evidence in some material respect, or made an award of Kshs. 682,640/= that was so inordinately low as to represent an entirely erroneous estimate. Issue (ii) is answered in the negative and the appeal fails.

Costs

24. It is trite that costs follow the event, thus the 1st Respondent is the successful party and is entitled to the costs of the appeal. The 2nd Respondent did not participate and no order is made for or against it.

Disposition

25. The court makes the following orders:

(i) The appeal is dismissed.

(ii) The judgment of Hon. B.A. Luova, Adjudicator, delivered on 23rd February 2023 in Small Claims Court at Machakos Claim No. E265 of 2022 is upheld.

(iii) The Appellants shall bear the costs of the appeal.

Orders accordingly.

Judgment dated, signed and delivered virtually via Microsoft teams on this 29th day of October, 2026.

E. N. MAINA

JUDGE

In the presence of:

Ms Memali for Opondo for 1st Respondent

Mr. Kipchilat for the Appellant

Miriam – Court Assistant/Interpreter