Introduction
1. The Respondent then Claimant, lodged his Statement of Claim in the Small Claims Court in Nakuru vide SSCOMM No. E237 of 2025 for special damages of Kshs 63,200/-, general damages and costs against the Appellants herein.
2. The cause of action was alleged to have arisen on 15th December 2024 when motor vehicle registration number KDE 073Q, owned by the 1st Appellant and driven by the 2nd Appellant, veered off the road and rammed into the Respondent's premises, Salgaa Guest House.
3. The adjudicator entered judgment for the respondent in the following terms: liability 100%, special damages Kshs 53,200/-, loss of user Kshs 50,000/-, costs and interest.
4. The appellants’ appeal on grounds which, distilled, are that the adjudicator
(i) found for the respondent on no evidence as to ownership and as to the fact and extent of damage;
(ii) failed to appreciate that special damages, and in particular loss of user, must be specifically pleaded and strictly proved; and
(iii) (iii) failed to consider the authorities placed before him.
5. Both parties filed written submissions which I have read and considered together with the record.
6. At the very onset, it is reiterated that by dint of Section 38(1) of the Small Claims Court Act, 2016 an appeal lies to this Court on matters of law only. A finding of fact reached on no evidence at all, or which no reasonable tribunal properly directing itself could have reached, is however an error of law.
7. The complaint that evidence was insufficient, as distinct from absent, remains a question of fact and is therefore not justiciable on this appeal.
8. The respondent testified on oath that he owned the guest house and produced a police charge sheet naming him as the complainant and identifying the premises as his, together with photographs of the scene.
9. The 2nd appellant admitted the accident and confirmed that the premises were business premises.
10. The Appellants met that evidence with a bare denial. They called no evidence of ownership in any other person, produced no contrary valuation, and did not demonstrate on the record that the Respondent's evidence was shaken in cross-examination.
11. In Nkuene Dairy Farmers Co-operative Society Ltd & another v Ngacha Ndeiya [2010] eKLR the Court of Appeal was emphatic that where a defendant leads no evidence to rebut what the claimant has adduced, "a bare assertion that the respondent did not adduce sufficient evidence to prove his case will not do." A party cannot sit back at the trial, decline to controvert evidence, and then invite the appellate court to reject it.
12. There was evidence before the adjudicator on both ownership and the fact of damage, and his findings on them are findings of fact with which I cannot interfere. Grounds 1 and 4 fail.
13. The law is settled and I need not belabour on it. Special damages must be specifically pleaded and strictly proved a principle founded in various judicial precedents.
14. Strict proof, however, is not synonymous with receipts. In Nkuene Dairy (supra) the Court of Appeal held that in a material damage claim the loss need not be shown to have been actually incurred. The claimant needs only establish the extent of the damage and what it would cost to restore the item to its pre-accident condition, and an unchallenged assessor's report is sufficient proof of that value. That authority answers the appellants' third and fourth grounds squarely.
15. The Respondent produced a valuation report by a quantity surveyor who testified and was available for cross-examination. The report assessed the cost of restoration at Kshs 37,650/-. A receipt of Kshs 10,000/- for the valuer's fee and a motor vehicle search fee of Kshs 550/- were produced. Those items total Kshs 48,200/-, which is precisely what the adjudicator awarded, having expressly disallowed the unreceipted labour charge of Kshs 15,000/-. The further Kshs 5,000/- allowed for the expert's attendance is properly an item of costs and I see no error of principle in its allowance.
16. The appellants sought to distinguish Nkuene Dairy on the footing that this valuation report lacked particularity. That was an argument to be made at the trial, where the valuer was testifying and where no alternative assessment was tendered.
17. The record bears that 2 nd Appellant admitted in his testimony during trial that the Valuer’s report produced by the Respondent to be relied upon by the trial court. The adjudicator evaluated the report, accepted it, and gave reasons. The award of Kshs 53,200/- is traceable, item by item, to evidence on the record. Grounds 2 and 4 fail in respect of the cost of repairs.
18. A claim for loss of user is not in general damages but special damages and must be both specifically pleaded and strictly proved.
19. Loss of user was not pleaded in the statement of claim, where the Respondent claimed special damages of Kshs 63,200/- made up of the repair and incidental items only.
20. Parties are bound by their pleadings. The Respondent invokes Section 32 of the Small Claims Court Act. This Court finds that this proviso effectively relaxes procedural formalities and the rules of evidence. It does not dispense with the requirement that a defendant be told the case he must meet through the claimant’s pleadings.
21. More fundamentally, the adjudicator himself found, at paragraph 27 of the judgment, that there was no daily estimate of the hotel's income on the record, that the figure of Kshs 15,000/- per day appeared only in the claimant's submissions, and that submissions cannot take the place of evidence. He also found, at paragraph 28, that the valuation report did not indicate how long the repairs would take, so that the Court was left to speculate on the period of closure. Having made those findings, the only course open to him was to decline the claim. Instead he awarded Kshs 10,000/- per day for 5 days, a rate no witness spoke to and a period no evidence established.
22. An award founded on an admitted evidential vacuum is not an exercise of discretion, it is speculation, and it is an error of law. Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR assists a claimant who has proved that he was in business and earning, but whose record-keeping is imperfect; it does not license an award where there is neither a pleaded claim nor any evidence of rate or duration. The award of Kshs 50,000/- for loss of user cannot stand.
23. This court finds that to succeed, special damages must first be pleaded with specificity before discharging the burden of proving them through evidence. It is this court’s finding that the Respondent did not specifically plead in his statement of claim and neither did he produce any iota of evidence to support the claim (sic) of special damages on the loss of user.
24. In deciding a similar question, the court in Nairobi Civil Suit No. 1620 of 1995 Gilbert Mwirigi -vs- Elijah Muthuri the court held inter alia:
“Although the plaintiff intimated that he had lost the income which the vehicle used to earn him in his matatu business, this he treated as general damage. In my humble opinion, loss of user being a claim that can be quantified is a specific claim, which should fall under claims for special damages, and not general damages. I shall therefore disregard that aspect of his claim because, it being a claim in special damage, it was not specially pleaded in the plaint. The general rule is that special damage must not only be specifically pleaded, but they must be specifically proven. Not having been so pleaded I regret, the court lacked the jurisdiction to make any award for loss of user."
25. In David Bagaine -vs- Martin Bundi (1997) eKLR , the Court of Appeal considered the issue of loss of user and held that:
“We must and ought to make it clear that damages claimed under the title, "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It cannot in the circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can."
26. The Respondent failed to specifically plead and strictly prove the loss of user.
27. The appeal therefore succeeds in part. Consequently:
a) The appeal is allowed to the extent only of the award for loss of user hence the award of Kshs 50,000/- under that head is set aside.
b) The finding on liability and the award of special damages of Kshs 53,200/- are upheld, together with costs of the claim and interest at court rates from the date of judgment until payment in full.
c) The judgment, decree of the Small Claims Court in Nakuru SCCOMM No. E237 of 2025 is varied accordingly.
d) Each party to bear its own costs of this appeal, the appellants having succeeded only in part.
Dated, signed and delivered at Nakuru this 22nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
C/A: Jamleck/Rutoh
Wanjiku holding brief for Wainaina for the Appellant
Wanjiru for the Respondent
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1. The Respondent then Claimant, lodged his Statement of Claim in the Small Claims Court in Nakuru vide SSCOMM No. E237 of 2025 for special damages of Kshs 63,200/-, general damages and costs against the Appellants herein.
2. The cause of action was alleged to have arisen on 15th December 2024 when motor vehicle registration number KDE 073Q, owned by the 1st Appellant and driven by the 2nd Appellant, veered off the road and rammed into the Respondent's premises, Salgaa Guest House.
3. The adjudicator entered judgment for the respondent in the following terms: liability 100%, special damages Kshs 53,200/-, loss of user Kshs 50,000/-, costs and interest.
4. The appellants’ appeal on grounds which, distilled, are that the adjudicator
(i) found for the respondent on no evidence as to ownership and as to the fact and extent of damage;
(ii) failed to appreciate that special damages, and in particular loss of user, must be specifically pleaded and strictly proved; and
(iii) (iii) failed to consider the authorities placed before him.
5. Both parties filed written submissions which I have read and considered together with the record.
6. At the very onset, it is reiterated that by dint of Section 38(1) of the Small Claims Court Act, 2016 an appeal lies to this Court on matters of law only. A finding of fact reached on no evidence at all, or which no reasonable tribunal properly directing itself could have reached, is however an error of law.
7. The complaint that evidence was insufficient, as distinct from absent, remains a question of fact and is therefore not justiciable on this appeal.
8. The respondent testified on oath that he owned the guest house and produced a police charge sheet naming him as the complainant and identifying the premises as his, together with photographs of the scene.
9. The 2nd appellant admitted the accident and confirmed that the premises were business premises.
10. The Appellants met that evidence with a bare denial. They called no evidence of ownership in any other person, produced no contrary valuation, and did not demonstrate on the record that the Respondent's evidence was shaken in cross-examination.
11. In Nkuene Dairy Farmers Co-operative Society Ltd & another v Ngacha Ndeiya [2010] eKLR the Court of Appeal was emphatic that where a defendant leads no evidence to rebut what the claimant has adduced, "a bare assertion that the respondent did not adduce sufficient evidence to prove his case will not do." A party cannot sit back at the trial, decline to controvert evidence, and then invite the appellate court to reject it.
12. There was evidence before the adjudicator on both ownership and the fact of damage, and his findings on them are findings of fact with which I cannot interfere. Grounds 1 and 4 fail.
13. The law is settled and I need not belabour on it. Special damages must be specifically pleaded and strictly proved a principle founded in various judicial precedents.
14. Strict proof, however, is not synonymous with receipts. In Nkuene Dairy (supra) the Court of Appeal held that in a material damage claim the loss need not be shown to have been actually incurred. The claimant needs only establish the extent of the damage and what it would cost to restore the item to its pre-accident condition, and an unchallenged assessor's report is sufficient proof of that value. That authority answers the appellants' third and fourth grounds squarely.
15. The Respondent produced a valuation report by a quantity surveyor who testified and was available for cross-examination. The report assessed the cost of restoration at Kshs 37,650/-. A receipt of Kshs 10,000/- for the valuer's fee and a motor vehicle search fee of Kshs 550/- were produced. Those items total Kshs 48,200/-, which is precisely what the adjudicator awarded, having expressly disallowed the unreceipted labour charge of Kshs 15,000/-. The further Kshs 5,000/- allowed for the expert's attendance is properly an item of costs and I see no error of principle in its allowance.
16. The appellants sought to distinguish Nkuene Dairy on the footing that this valuation report lacked particularity. That was an argument to be made at the trial, where the valuer was testifying and where no alternative assessment was tendered.
17. The record bears that 2 nd Appellant admitted in his testimony during trial that the Valuer’s report produced by the Respondent to be relied upon by the trial court. The adjudicator evaluated the report, accepted it, and gave reasons. The award of Kshs 53,200/- is traceable, item by item, to evidence on the record. Grounds 2 and 4 fail in respect of the cost of repairs.
18. A claim for loss of user is not in general damages but special damages and must be both specifically pleaded and strictly proved.
19. Loss of user was not pleaded in the statement of claim, where the Respondent claimed special damages of Kshs 63,200/- made up of the repair and incidental items only.
20. Parties are bound by their pleadings. The Respondent invokes Section 32 of the Small Claims Court Act. This Court finds that this proviso effectively relaxes procedural formalities and the rules of evidence. It does not dispense with the requirement that a defendant be told the case he must meet through the claimant’s pleadings.
21. More fundamentally, the adjudicator himself found, at paragraph 27 of the judgment, that there was no daily estimate of the hotel's income on the record, that the figure of Kshs 15,000/- per day appeared only in the claimant's submissions, and that submissions cannot take the place of evidence. He also found, at paragraph 28, that the valuation report did not indicate how long the repairs would take, so that the Court was left to speculate on the period of closure. Having made those findings, the only course open to him was to decline the claim. Instead he awarded Kshs 10,000/- per day for 5 days, a rate no witness spoke to and a period no evidence established.
22. An award founded on an admitted evidential vacuum is not an exercise of discretion, it is speculation, and it is an error of law. Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR assists a claimant who has proved that he was in business and earning, but whose record-keeping is imperfect; it does not license an award where there is neither a pleaded claim nor any evidence of rate or duration. The award of Kshs 50,000/- for loss of user cannot stand.
23. This court finds that to succeed, special damages must first be pleaded with specificity before discharging the burden of proving them through evidence. It is this court’s finding that the Respondent did not specifically plead in his statement of claim and neither did he produce any iota of evidence to support the claim (sic) of special damages on the loss of user.
24. In deciding a similar question, the court in Nairobi Civil Suit No. 1620 of 1995 Gilbert Mwirigi -vs- Elijah Muthuri the court held inter alia:
“Although the plaintiff intimated that he had lost the income which the vehicle used to earn him in his matatu business, this he treated as general damage. In my humble opinion, loss of user being a claim that can be quantified is a specific claim, which should fall under claims for special damages, and not general damages. I shall therefore disregard that aspect of his claim because, it being a claim in special damage, it was not specially pleaded in the plaint. The general rule is that special damage must not only be specifically pleaded, but they must be specifically proven. Not having been so pleaded I regret, the court lacked the jurisdiction to make any award for loss of user."
25. In David Bagaine -vs- Martin Bundi (1997) eKLR , the Court of Appeal considered the issue of loss of user and held that:
“We must and ought to make it clear that damages claimed under the title, "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It cannot in the circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can."
26. The Respondent failed to specifically plead and strictly prove the loss of user.
27. The appeal therefore succeeds in part. Consequently:
a) The appeal is allowed to the extent only of the award for loss of user hence the award of Kshs 50,000/- under that head is set aside.
b) The finding on liability and the award of special damages of Kshs 53,200/- are upheld, together with costs of the claim and interest at court rates from the date of judgment until payment in full.
c) The judgment, decree of the Small Claims Court in Nakuru SCCOMM No. E237 of 2025 is varied accordingly.
d) Each party to bear its own costs of this appeal, the appellants having succeeded only in part.
Dated, signed and delivered at Nakuru this 22nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
C/A: Jamleck/Rutoh
Wanjiku holding brief for Wainaina for the Appellant
Wanjiru for the Respondent
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