1. This appeal arises from the judgment of the Small Claims Court at Meru delivered on 30th April 2024. The Appellant had instituted a claim against the Respondent seeking compensation in the sum of Kshs. 717,500 arising from the alleged destruction of crops by elephants.
2. The Appellant’s case before the trial court was that, on or about 21st February 2024, elephants allegedly strayed into his farm situated on Land Reference No. 9526 Ngaremara/Gambela and destroyed crops comprising maize, dolichos, pigeon peas and sorghum. He attributed the loss to the Respondent’s failure to contain and control the elephants.
3. The Respondent denied liability and contended that the area was within a known wildlife migratory corridor. It further maintained that the invasion was occasioned by prevailing drought conditions and that the Appellant had failed to take reasonable measures to protect the crops despite the known presence of wildlife in the area.
4. Following the hearing, the learned Adjudicator found the Respondent 80% liable for the occurrence. The claim was nevertheless dismissed on the ground that the special damages pleaded had not been strictly proved. The trial court particularly relied on what it described as substantial disparities between the individual crop verification forms and the final assessment report prepared by the agricultural officer.
5. Aggrieved by that decision, the Appellant lodged the present appeal. Although the Memorandum of Appeal raises several grounds, the central complaint is that the learned Adjudicator erred in dismissing the claim after finding the Respondent substantially liable and after receiving evidence concerning the destruction and assessment of the crops.
6. The Respondent opposed the appeal and maintained that the claim was properly dismissed because the evidence concerning the alleged value of the crops was inconsistent and unreliable. It further submitted that the agricultural officer’s report was not conclusive and could not, without more, establish the amount claimed.
7. As a first appellate court, this court is under a duty to reconsider, re-evaluate and analyse the evidence tendered before the trial court and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was explained in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
8. Having considered the record of appeal, the judgment of the trial court and the parties’ submissions, the issues arising for determination are:
a. Whether the trial court erred in finding that the Appellant had failed to prove special damages merely because of the discrepancies appearing in the assessment documents;
b. Whether the evidence of the agricultural officer was sufficiently reliable and conclusive to establish the value of the alleged crop loss on a balance of probabilities; and
9. The claim was heard and determined by the trial court, evidence was received from the parties and findings were made regarding liability and proof of loss. The principal question before this court is whether the evidence placed before the trial court was sufficient to sustain the monetary award sought. The appeal shall therefore be determined on that basis.
10. The law regarding special damages is settled. Special damages must not only be specifically pleaded but must also be strictly proved. The requirement of strict proof, however, does not mean that every claim must be established with absolute mathematical certainty or that every inconsistency in the evidence is necessarily fatal.
11. In Hahn v Singh [1985] KLR 716, the Court of Appeal stated that special damages must be specifically pleaded and strictly proved. Similarly, in Provincial Insurance Co. of East Africa Ltd v Mordekai Mwanga Nandwa [1995–1998] 2 EA 289 , the court emphasized that a party claiming special damages bears the burden of proving the particular loss claimed.
12. The standard remains proof on a balance of probabilities. Strict proof does not elevate the civil standard into proof beyond reasonable doubt. Rather, it requires evidence that is sufficiently cogent, credible and reliable to enable the court to determine both the existence and the extent of the loss without resorting to conjecture.
13. The trial court found that there were substantial differences between the individual crop verification forms and the final assessment report. It consequently concluded that the special damages had not been properly proved and dismissed the claim.
14. Upon re-evaluating the evidence, this court is unable to agree entirely with that conclusion. The existence of discrepancies between the underlying verification forms and the summary report did not, without more, establish that the Appellant had failed to prove any special damage.
15. The agricultural officer was called as a witness and explained that some of the differences resulted from errors made while transferring figures from the primary verification documents into the final summary. The underlying forms remained part of the evidential record and were capable of being examined independently.
16. The trial court was therefore required to evaluate the primary documents, the oral explanation offered by the agricultural officer and the nature and significance of the discrepancies before reaching a conclusion on the claim. The mere existence of inconsistencies in a summary document did not automatically render the entire claim incapable of proof.
17. In that respect, the learned Adjudicator adopted an unduly rigid approach. The court ought to have distinguished between discrepancies that went to the substance and reliability of the assessment and those that were capable of explanation or correction by reference to the primary documents.
18. It was therefore an error to conclude, solely from the existence of disparities in the assessment documents, that special damages had not been proved. The Appellant had tendered evidence intended to establish the occurrence of crop destruction and had produced documents prepared during the assessment of the alleged loss.
19. The Appellant’s complaint is consequently well founded to the extent that the trial court treated the discrepancies as automatically fatal to the entire claim. The evidence ought instead to have been subjected to a substantive assessment of its reliability and probative value. That finding, however, does not conclude the appeal. The court must still determine whether the evidence, properly evaluated, established the value of the alleged crop loss to the requisite civil standard.
20. The agricultural officer was presented as a witness with relevant technical knowledge concerning crop assessment. Expert evidence may assist a court in matters requiring specialized knowledge. However, an expert’s opinion does not displace the court’s duty to assess the evidence or relieve the party relying upon it of the burden of proof.
21. In Davie v Edinburgh Magistrates [1953] SC 34 , the court observed that expert witnesses furnish the court with the necessary scientific or technical criteria for testing the accuracy of their conclusions, but the ultimate decision remains that of the court. The court must examine the factual foundation, reasoning and reliability of the opinion before determining the weight to be attached to it.
22. The fact that the Respondent did not call a separate agricultural expert did not, by itself, require the trial court to accept the agricultural officer’s assessment. The burden of proving the claim remained with the Appellant throughout. A court is not obliged to accept expert evidence merely because it is uncontroverted.
23. The evidence of the agricultural officer must therefore be assessed against the material upon which the assessment was founded and the reasoning by which the final figure of Kshs. 717,500 was reached.
24. The record shows that the agricultural officer prepared individual verification forms and subsequently produced a summary assessment. However, the figures appearing in the primary documents did not consistently correspond with those reflected in the final report.
25. Although the witness attributed some of the discrepancies to transcription errors, the explanation did not adequately demonstrate how the final figure was derived from the verified acreage, the extent of crop destruction, the anticipated yield and the applicable market prices. The agricultural officer acknowledged that the report was not conclusive. That admission was material. It did not necessarily render the report inadmissible, but it substantially affected the weight that could be attached to it.
26. An assessment report that is expressly provisional or inconclusive may provide evidence that damage occurred or that a preliminary assessment was undertaken. It does not necessarily establish, without further supporting material, the precise monetary value of the alleged loss.
27. The court was required to determine whether the assessment disclosed a sufficiently transparent and verifiable methodology. The evidence did not satisfactorily explain the basis upon which the acreage affected was established, the percentage of crop destruction attributable to the elephants, the expected yield per unit area, the applicable market prices or the calculations used to arrive at the final figure.
28. The assessment therefore lacked sufficient detail to permit the court to test the accuracy of the amount claimed independently. The final figure was presented as a conclusion without an adequately demonstrated analytical foundation. The primary verification forms did not cure that deficiency. While they provided some evidence concerning the crops allegedly affected, they did not, when considered together with the oral evidence, establish a coherent and reliable basis for quantifying the loss at Kshs. 717,500.
29. The difficulty is not that the Appellant failed to produce documentary evidence or that the agricultural officer was not qualified to undertake an assessment. The difficulty is that the evidence tendered did not provide a sufficiently certain and verifiable basis for the court to determine the value of the loss. The court cannot substitute its own assumptions concerning expected crop yield, market prices or the extent of destruction.
30. The principle that where there is a wrong there should be a remedy, expressed in the maxim ubi jus ibi remedium , does not dispense with the requirement that a claimant prove the loss for which compensation is sought. A finding of liability does not automatically establish the quantum of damages.
31. Liability and quantum are distinct inquiries. A claimant may establish that a wrongful act occurred but still fail to prove the extent or monetary value of the resulting loss. In such circumstances, the court cannot award a sum that is not supported by sufficiently reliable evidence.
32. The learned Adjudicator found the Respondent 80% liable. That finding demonstrated that the trial court accepted that the alleged invasion and damage had occurred and that the Respondent bore substantial responsibility.
33. Nevertheless, the finding on liability could not, by itself, justify an award of the entire sum pleaded. The Appellant was still required to establish the amount of the loss on a balance of probabilities.
34. Upon a fresh evaluation of the evidence, this court finds that the Appellant established that crops were damaged. The evidence, however, did not establish with sufficient certainty the monetary value of the alleged damage.
35. The agricultural officer’s report was not conclusive and the witness did not adequately explain or substantiate the methodology used to arrive at the amount claimed. The discrepancies between the verification forms and the summary report, considered together with the absence of a clear and verifiable basis for the final assessment, rendered the evidence insufficient to prove the quantum claimed.
36. The trial court erred in holding that the special damages had not been proved merely because the assessment documents contained discrepancies. The proper approach was to evaluate the evidence as a whole and determine whether the agricultural officer’s assessment provided a reliable evidential basis for quantifying the loss.
37. Having undertaken that evaluation, this court finds that the assessment was speculative and inconclusive in relation to the amount claimed. The Appellant did not establish, on a balance of probabilities, that the loss amounted to Kshs. 717,500 or to any other ascertainable sum.
38. Accordingly, the appeal lacks merit and is dismissed.
39. The final orders of the court are:
i. The appeal is dismissed.
ii. Each party shall bear its own costs of the appeal.
Dated, Signed and Delivered at Meru this 30 th day of July 2026.
2. The Appellant’s case before the trial court was that, on or about 21st February 2024, elephants allegedly strayed into his farm situated on Land Reference No. 9526 Ngaremara/Gambela and destroyed crops comprising maize, dolichos, pigeon peas and sorghum. He attributed the loss to the Respondent’s failure to contain and control the elephants.
3. The Respondent denied liability and contended that the area was within a known wildlife migratory corridor. It further maintained that the invasion was occasioned by prevailing drought conditions and that the Appellant had failed to take reasonable measures to protect the crops despite the known presence of wildlife in the area.
4. Following the hearing, the learned Adjudicator found the Respondent 80% liable for the occurrence. The claim was nevertheless dismissed on the ground that the special damages pleaded had not been strictly proved. The trial court particularly relied on what it described as substantial disparities between the individual crop verification forms and the final assessment report prepared by the agricultural officer.
5. Aggrieved by that decision, the Appellant lodged the present appeal. Although the Memorandum of Appeal raises several grounds, the central complaint is that the learned Adjudicator erred in dismissing the claim after finding the Respondent substantially liable and after receiving evidence concerning the destruction and assessment of the crops.
6. The Respondent opposed the appeal and maintained that the claim was properly dismissed because the evidence concerning the alleged value of the crops was inconsistent and unreliable. It further submitted that the agricultural officer’s report was not conclusive and could not, without more, establish the amount claimed.
7. As a first appellate court, this court is under a duty to reconsider, re-evaluate and analyse the evidence tendered before the trial court and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was explained in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
8. Having considered the record of appeal, the judgment of the trial court and the parties’ submissions, the issues arising for determination are:
a. Whether the trial court erred in finding that the Appellant had failed to prove special damages merely because of the discrepancies appearing in the assessment documents;
b. Whether the evidence of the agricultural officer was sufficiently reliable and conclusive to establish the value of the alleged crop loss on a balance of probabilities; and
9. The claim was heard and determined by the trial court, evidence was received from the parties and findings were made regarding liability and proof of loss. The principal question before this court is whether the evidence placed before the trial court was sufficient to sustain the monetary award sought. The appeal shall therefore be determined on that basis.
10. The law regarding special damages is settled. Special damages must not only be specifically pleaded but must also be strictly proved. The requirement of strict proof, however, does not mean that every claim must be established with absolute mathematical certainty or that every inconsistency in the evidence is necessarily fatal.
11. In Hahn v Singh [1985] KLR 716, the Court of Appeal stated that special damages must be specifically pleaded and strictly proved. Similarly, in Provincial Insurance Co. of East Africa Ltd v Mordekai Mwanga Nandwa [1995–1998] 2 EA 289 , the court emphasized that a party claiming special damages bears the burden of proving the particular loss claimed.
12. The standard remains proof on a balance of probabilities. Strict proof does not elevate the civil standard into proof beyond reasonable doubt. Rather, it requires evidence that is sufficiently cogent, credible and reliable to enable the court to determine both the existence and the extent of the loss without resorting to conjecture.
13. The trial court found that there were substantial differences between the individual crop verification forms and the final assessment report. It consequently concluded that the special damages had not been properly proved and dismissed the claim.
14. Upon re-evaluating the evidence, this court is unable to agree entirely with that conclusion. The existence of discrepancies between the underlying verification forms and the summary report did not, without more, establish that the Appellant had failed to prove any special damage.
15. The agricultural officer was called as a witness and explained that some of the differences resulted from errors made while transferring figures from the primary verification documents into the final summary. The underlying forms remained part of the evidential record and were capable of being examined independently.
16. The trial court was therefore required to evaluate the primary documents, the oral explanation offered by the agricultural officer and the nature and significance of the discrepancies before reaching a conclusion on the claim. The mere existence of inconsistencies in a summary document did not automatically render the entire claim incapable of proof.
17. In that respect, the learned Adjudicator adopted an unduly rigid approach. The court ought to have distinguished between discrepancies that went to the substance and reliability of the assessment and those that were capable of explanation or correction by reference to the primary documents.
18. It was therefore an error to conclude, solely from the existence of disparities in the assessment documents, that special damages had not been proved. The Appellant had tendered evidence intended to establish the occurrence of crop destruction and had produced documents prepared during the assessment of the alleged loss.
19. The Appellant’s complaint is consequently well founded to the extent that the trial court treated the discrepancies as automatically fatal to the entire claim. The evidence ought instead to have been subjected to a substantive assessment of its reliability and probative value. That finding, however, does not conclude the appeal. The court must still determine whether the evidence, properly evaluated, established the value of the alleged crop loss to the requisite civil standard.
20. The agricultural officer was presented as a witness with relevant technical knowledge concerning crop assessment. Expert evidence may assist a court in matters requiring specialized knowledge. However, an expert’s opinion does not displace the court’s duty to assess the evidence or relieve the party relying upon it of the burden of proof.
21. In Davie v Edinburgh Magistrates [1953] SC 34 , the court observed that expert witnesses furnish the court with the necessary scientific or technical criteria for testing the accuracy of their conclusions, but the ultimate decision remains that of the court. The court must examine the factual foundation, reasoning and reliability of the opinion before determining the weight to be attached to it.
22. The fact that the Respondent did not call a separate agricultural expert did not, by itself, require the trial court to accept the agricultural officer’s assessment. The burden of proving the claim remained with the Appellant throughout. A court is not obliged to accept expert evidence merely because it is uncontroverted.
23. The evidence of the agricultural officer must therefore be assessed against the material upon which the assessment was founded and the reasoning by which the final figure of Kshs. 717,500 was reached.
24. The record shows that the agricultural officer prepared individual verification forms and subsequently produced a summary assessment. However, the figures appearing in the primary documents did not consistently correspond with those reflected in the final report.
25. Although the witness attributed some of the discrepancies to transcription errors, the explanation did not adequately demonstrate how the final figure was derived from the verified acreage, the extent of crop destruction, the anticipated yield and the applicable market prices. The agricultural officer acknowledged that the report was not conclusive. That admission was material. It did not necessarily render the report inadmissible, but it substantially affected the weight that could be attached to it.
26. An assessment report that is expressly provisional or inconclusive may provide evidence that damage occurred or that a preliminary assessment was undertaken. It does not necessarily establish, without further supporting material, the precise monetary value of the alleged loss.
27. The court was required to determine whether the assessment disclosed a sufficiently transparent and verifiable methodology. The evidence did not satisfactorily explain the basis upon which the acreage affected was established, the percentage of crop destruction attributable to the elephants, the expected yield per unit area, the applicable market prices or the calculations used to arrive at the final figure.
28. The assessment therefore lacked sufficient detail to permit the court to test the accuracy of the amount claimed independently. The final figure was presented as a conclusion without an adequately demonstrated analytical foundation. The primary verification forms did not cure that deficiency. While they provided some evidence concerning the crops allegedly affected, they did not, when considered together with the oral evidence, establish a coherent and reliable basis for quantifying the loss at Kshs. 717,500.
29. The difficulty is not that the Appellant failed to produce documentary evidence or that the agricultural officer was not qualified to undertake an assessment. The difficulty is that the evidence tendered did not provide a sufficiently certain and verifiable basis for the court to determine the value of the loss. The court cannot substitute its own assumptions concerning expected crop yield, market prices or the extent of destruction.
30. The principle that where there is a wrong there should be a remedy, expressed in the maxim ubi jus ibi remedium , does not dispense with the requirement that a claimant prove the loss for which compensation is sought. A finding of liability does not automatically establish the quantum of damages.
31. Liability and quantum are distinct inquiries. A claimant may establish that a wrongful act occurred but still fail to prove the extent or monetary value of the resulting loss. In such circumstances, the court cannot award a sum that is not supported by sufficiently reliable evidence.
32. The learned Adjudicator found the Respondent 80% liable. That finding demonstrated that the trial court accepted that the alleged invasion and damage had occurred and that the Respondent bore substantial responsibility.
33. Nevertheless, the finding on liability could not, by itself, justify an award of the entire sum pleaded. The Appellant was still required to establish the amount of the loss on a balance of probabilities.
34. Upon a fresh evaluation of the evidence, this court finds that the Appellant established that crops were damaged. The evidence, however, did not establish with sufficient certainty the monetary value of the alleged damage.
35. The agricultural officer’s report was not conclusive and the witness did not adequately explain or substantiate the methodology used to arrive at the amount claimed. The discrepancies between the verification forms and the summary report, considered together with the absence of a clear and verifiable basis for the final assessment, rendered the evidence insufficient to prove the quantum claimed.
36. The trial court erred in holding that the special damages had not been proved merely because the assessment documents contained discrepancies. The proper approach was to evaluate the evidence as a whole and determine whether the agricultural officer’s assessment provided a reliable evidential basis for quantifying the loss.
37. Having undertaken that evaluation, this court finds that the assessment was speculative and inconclusive in relation to the amount claimed. The Appellant did not establish, on a balance of probabilities, that the loss amounted to Kshs. 717,500 or to any other ascertainable sum.
38. Accordingly, the appeal lacks merit and is dismissed.
39. The final orders of the court are:
i. The appeal is dismissed.
ii. Each party shall bear its own costs of the appeal.
Dated, Signed and Delivered at Meru this 30 th day of July 2026.