1. This is a first Appeal. It arises from the Judgment of Honourable S.D. Sitati, Senior Resident Magistrate. The Judgment was delivered on the 17th July, 2023. It relates to Kilifi MCCC No. E109 of 2022.
Background Facts
2. The Appellant was the unsuccessful Defendant before the Trial Court. The Respondent was the successful Plaintiff. The underlying matter was a running down claim. The Respondent was involved in a road traffic accident on the 17th August, 2021. It involved the Appellant’s motor vehicle.
3. The Respondent claimed to have suffered several injuries. These injuries were detailed in the Plaint as follows:
Particulars of Injuries
a) Comminuted fracture of patella.
b) Spiral fracture of proximal tibia.
c) Fracture of 4, 5, 6 and 7th ribs with hemothorax and lung contusion.
d) Deep laceration of lateral aspect of upper right arm.
e) Multiple facial soft tissue injuries.
4. The Respondent also pleaded specific special damages. These alleged pecuniary losses totalled Kshs. 1,665,740/= as particularised:
Particulars of Special Damages
a) Treatment, physiotherapy Kshs. 1,628,240.00
b) Transport Kshs. 32,000.00
c) Medical Report Kshs. 2,000.00
d) Paid for P3 Kshs. 3,000.00
e) Paid for Police Abstract Kshs. 500.00
Total Kshs. 1,665,740.00
5. The Trial Court found the Appellant fully liable. It awarded various heads of damages. This included an award for special damages. In the Judgment entered on the 17th July, 2023, the Trial Court held as follows.
"I award special damages in the sum of Kshs 1,413,136/= as per the receipts and invoices sent to the Insurance Companies for payment".
6. It is this specific award of special damages that has triggered this Appeal. The Appellant filed a Memorandum of Appeal dated the 2nd August, 2023.
7. The grounds set out in the Memorandum of Appeal are as follows:
1. THAT the Learned Magistrate erred in law and in fact by making an award of special damages of Kshs 1,413,136/= when the same was not proved as required by law.
2. THAT the Learned Magistrate erred in law and in fact by misapprehending the law applicable in proving a claim for special damages and therefore arriving at an erroneous decision by making an award of special damages of Kshs 1,413,136/= by relying on invoices.
3. THAT the Learned Magistrate erred in law and in fact by failing to evaluate, scrutinize and consider the evidence on record and hence arriving at an erroneous conclusion by making an award of Kshs 1,413,136/= as special damages.
4. THAT the Learned Magistrate erred in law and in fact by making an award of Kshs 1,413,136/= as special damages based on invoices without any further proof that the alleged amount were personally incurred and paid out by the Respondent.
5. THAT the Learned Magistrate erred in Law and in fact by granting the award of special damages in the sum of Kshs 1,413,136/= allegedly based on receipts and invoices when no such receipts were produced nor tendered in evidence in support of the claim by the Respondent.
8. The Appellant prayed for the following reliefs in the Appeal:
a) THAT the Appeal herein be allowed.
b) THAT the Judgment of the Lower Court in awarding Special damages of Kshs 1,413,136/= to the Respondent be set aside in its entirety and substituted by amount only incurred by the Respondent.
c) THAT this Honourable Court be pleased to make such other or further orders as it may deem fit and just to grant.
9. The Appellant relies on written submissions dated the 26th November, 2025. The Appellant submits that special damages must be specifically pleaded and strictly proved. The Appellant argues that the Trial Court erroneously relied on invoices. An invoice is merely a request for payment. It does not prove actual loss. The Appellant cites Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), Hahn v Singh [1985] KECA 129 (KLR), Nkuru v Mucee (Suing as guardian and next friend of Newton Nyaga) [2024] KEHC 13852 (KLR), Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] KEHC 2976 (KLR), Sanya Hassan & another v Soma Properties Ltd [2004] KEHC 2610 (KLR), and Wakim Sodas Limited v Sammy Aritos [2017] KEHC 3427 (KLR).
10. The Respondent relies on written submissions dated the 30th May, 2025. The Respondent opposes the Appeal. The Respondent asserts that an Appellate Court should not interfere with a trial court's discretion absent a misdirection. The Respondent contends that receipts were produced without objection during the trial. The Respondent cites Abraham Tenoi Kimala v Job Kipsang Suter [2002] KECA 310 (KLR), Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR), and Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003.
Issue for Determination
11. The Court has considered the Memorandum of Appeal. It has reviewed the Record of Appeal. It has evaluated the rival submissions by Counsel for the parties. The Court frames a single issue for determination as follows:
(a) Whether the Trial Court erred in awarding special damages of Kshs. 1,413,136/=.
12. This distils into whether the damages were strictly pleaded and specifically proved. It also raises the question as to whether invoices are the equivalent of receipts. Finally, does the admission of invoices at trial equate to proof of special damages?
Analysis
13. This is a first Appeal. The duty of an Appellate Court on a first appeal is to re-evaluate the evidence. The Court must draw its own conclusions. It must bear in mind that it neither saw nor heard the witnesses. This duty is ably set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal articulated this duty as follows:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect".
14. The issue of liability is not disputed. The underlying matter is a running down claim. The Trial Court found the Appellant fully liable. This Appeal turns exclusively on the quantum of special damages.
(a) Whether the Trial Court erred in awarding special damages of Kshs. 1,413,136/=.
15. Special damages compensate for actual out-of-pocket expenses. They must be crystallized at the date of trial. The rule of strict proof is mandatory. The liability case on awarding of special damages is Hahn v Singh [1985] KECA 129 (KLR). The Court of Appeal held:
“Now the next two grounds of the memorandum concern special damages which must be not only claimed specially but proved strictly 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 the nature of the acts themselves.”
16. The Trial Court erred by awarding damages based on invoices. Invoices are fundamentally different from receipts. An invoice is a commercial demand for payment. A receipt is a written acknowledgment of payment received. The admission of an invoice into evidence only proves that a demand was made. It does not prove that a financial loss was actually incurred.
17. The correct law on the issue of proof of special damages is clear. Actual receipts must be tendered. The High Court pronounced this in Wakim Sodas Limited v Sammy Aritos [2017] KEHC 3427 (KLR). The Court stated:
"A natural corollary of this has been that the Courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury. It is not enough for a party to provide pro forma invoices sent to the party by a third party. In this regard, our Courts have held that an invoice is not proof of payment and that only a receipt meets the test".
18. To support this conclusion, the Court relies on Kampala City Council v Nakaye [1972] EA 446. The defunct Court of Appeal for East Africa emphasized that special damages demand absolute particularity of proof. Similarly, in Ouma V Nairobi City Council [1976] KLR 297, it was established that documentary evidence must affirmatively show the actual expenditure incurred by the claimant. Invoices fail this evidentiary threshold.
19. The Court must now look at the documents produced. The objective is to set out what special damages were actually proved. The Respondent relied heavily on an interim bill from Aga Khan Hospital. It is dated the 26th August, 2021. The amount is Kshs. 1,387,874.16. It explicitly states that it is an approximate rough estimate. There is no receipt attached to this bill.
20. The record also contains an invoice from Pandya Memorial Hospital. It is dated the 12th October, 2021. The amount is Kshs. 2,500/=. It is addressed to the National Hospital Insurance Fund. There are also various sales invoices from Aga Khan Hospital. None of these documents are receipts. They do not demonstrate actual payment by the Respondent.
21. The Court observes only two legitimate receipts on record. The first is dated the 31st August, 2021. It was issued by Dr. Abdalla Kassim. The amount is Kshs. 1,000/=. The payment is for a consultation fee. The second is dated the 14th February, 2022. It was issued by Dr. Mwarumba. The amount is Kshs. 3,000/=. The payment is for a medical report.
22. The Court must reconcile the proven amounts with the pleadings. A party is strictly bound by their pleadings. The Court cannot award a sum higher than what was pleaded for a specific item. The Respondent pleaded Kshs. 2,000/= for the medical report. The receipt produced is for Kshs. 3,000/=. The award is therefore capped at the pleaded Kshs. 2,000/=.
23. The receipt for Kshs. 1,000/= relates to a medical consultation. This falls squarely within the broad pleading of treatment. The Court accepts this as strictly proved. The total sum of special damages strictly pleaded and specifically proved is established at Kshs. 3,000/=.
24. The Trial Court's award of Kshs. 1,413,136/= was based on conjecture. It was based on unreceipted estimates and invoices. The award offends the established legal principles governing special damages. The Trial Court misapprehended the law. The award must be set aside.
25. As to the costs, the same follow the event. The Appellant has succeeded in this Appeal. The Appellant is entitled to the costs of the Appeal.
Determination
26. In conclusion, the Court determines this Appeal in the following manner:
a) THAT the Appeal is HEREBY allowed.
b) THAT the Judgment and Decree of the Lower Court awarding Special damages of Kshs 1,413,136/= to the Respondent is HEREBY quashed and set aside in its entirety. It is instead replaced and substituted by a Judgment and Decree on special damages of the amount strictly proved by the Respondent being Kshs. 3,000/=.
c) THAT the Appellant is awarded the costs of this Appeal.
27. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Nyambane for the Appellant.
Miss Mwango for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. The Appellant was the unsuccessful Defendant before the Trial Court. The Respondent was the successful Plaintiff. The underlying matter was a running down claim. The Respondent was involved in a road traffic accident on the 17th August, 2021. It involved the Appellant’s motor vehicle.
3. The Respondent claimed to have suffered several injuries. These injuries were detailed in the Plaint as follows:
Particulars of Injuries
a) Comminuted fracture of patella.
b) Spiral fracture of proximal tibia.
c) Fracture of 4, 5, 6 and 7th ribs with hemothorax and lung contusion.
d) Deep laceration of lateral aspect of upper right arm.
e) Multiple facial soft tissue injuries.
4. The Respondent also pleaded specific special damages. These alleged pecuniary losses totalled Kshs. 1,665,740/= as particularised:
Particulars of Special Damages
a) Treatment, physiotherapy Kshs. 1,628,240.00
b) Transport Kshs. 32,000.00
c) Medical Report Kshs. 2,000.00
d) Paid for P3 Kshs. 3,000.00
e) Paid for Police Abstract Kshs. 500.00
Total Kshs. 1,665,740.00
5. The Trial Court found the Appellant fully liable. It awarded various heads of damages. This included an award for special damages. In the Judgment entered on the 17th July, 2023, the Trial Court held as follows.
"I award special damages in the sum of Kshs 1,413,136/= as per the receipts and invoices sent to the Insurance Companies for payment".
6. It is this specific award of special damages that has triggered this Appeal. The Appellant filed a Memorandum of Appeal dated the 2nd August, 2023.
7. The grounds set out in the Memorandum of Appeal are as follows:
1. THAT the Learned Magistrate erred in law and in fact by making an award of special damages of Kshs 1,413,136/= when the same was not proved as required by law.
2. THAT the Learned Magistrate erred in law and in fact by misapprehending the law applicable in proving a claim for special damages and therefore arriving at an erroneous decision by making an award of special damages of Kshs 1,413,136/= by relying on invoices.
3. THAT the Learned Magistrate erred in law and in fact by failing to evaluate, scrutinize and consider the evidence on record and hence arriving at an erroneous conclusion by making an award of Kshs 1,413,136/= as special damages.
4. THAT the Learned Magistrate erred in law and in fact by making an award of Kshs 1,413,136/= as special damages based on invoices without any further proof that the alleged amount were personally incurred and paid out by the Respondent.
5. THAT the Learned Magistrate erred in Law and in fact by granting the award of special damages in the sum of Kshs 1,413,136/= allegedly based on receipts and invoices when no such receipts were produced nor tendered in evidence in support of the claim by the Respondent.
8. The Appellant prayed for the following reliefs in the Appeal:
a) THAT the Appeal herein be allowed.
b) THAT the Judgment of the Lower Court in awarding Special damages of Kshs 1,413,136/= to the Respondent be set aside in its entirety and substituted by amount only incurred by the Respondent.
c) THAT this Honourable Court be pleased to make such other or further orders as it may deem fit and just to grant.
9. The Appellant relies on written submissions dated the 26th November, 2025. The Appellant submits that special damages must be specifically pleaded and strictly proved. The Appellant argues that the Trial Court erroneously relied on invoices. An invoice is merely a request for payment. It does not prove actual loss. The Appellant cites Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), Hahn v Singh [1985] KECA 129 (KLR), Nkuru v Mucee (Suing as guardian and next friend of Newton Nyaga) [2024] KEHC 13852 (KLR), Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] KEHC 2976 (KLR), Sanya Hassan & another v Soma Properties Ltd [2004] KEHC 2610 (KLR), and Wakim Sodas Limited v Sammy Aritos [2017] KEHC 3427 (KLR).
10. The Respondent relies on written submissions dated the 30th May, 2025. The Respondent opposes the Appeal. The Respondent asserts that an Appellate Court should not interfere with a trial court's discretion absent a misdirection. The Respondent contends that receipts were produced without objection during the trial. The Respondent cites Abraham Tenoi Kimala v Job Kipsang Suter [2002] KECA 310 (KLR), Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR), and Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003.
Issue for Determination
11. The Court has considered the Memorandum of Appeal. It has reviewed the Record of Appeal. It has evaluated the rival submissions by Counsel for the parties. The Court frames a single issue for determination as follows:
(a) Whether the Trial Court erred in awarding special damages of Kshs. 1,413,136/=.
12. This distils into whether the damages were strictly pleaded and specifically proved. It also raises the question as to whether invoices are the equivalent of receipts. Finally, does the admission of invoices at trial equate to proof of special damages?
Analysis
13. This is a first Appeal. The duty of an Appellate Court on a first appeal is to re-evaluate the evidence. The Court must draw its own conclusions. It must bear in mind that it neither saw nor heard the witnesses. This duty is ably set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal articulated this duty as follows:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect".
14. The issue of liability is not disputed. The underlying matter is a running down claim. The Trial Court found the Appellant fully liable. This Appeal turns exclusively on the quantum of special damages.
(a) Whether the Trial Court erred in awarding special damages of Kshs. 1,413,136/=.
15. Special damages compensate for actual out-of-pocket expenses. They must be crystallized at the date of trial. The rule of strict proof is mandatory. The liability case on awarding of special damages is Hahn v Singh [1985] KECA 129 (KLR). The Court of Appeal held:
“Now the next two grounds of the memorandum concern special damages which must be not only claimed specially but proved strictly 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 the nature of the acts themselves.”
16. The Trial Court erred by awarding damages based on invoices. Invoices are fundamentally different from receipts. An invoice is a commercial demand for payment. A receipt is a written acknowledgment of payment received. The admission of an invoice into evidence only proves that a demand was made. It does not prove that a financial loss was actually incurred.
17. The correct law on the issue of proof of special damages is clear. Actual receipts must be tendered. The High Court pronounced this in Wakim Sodas Limited v Sammy Aritos [2017] KEHC 3427 (KLR). The Court stated:
"A natural corollary of this has been that the Courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury. It is not enough for a party to provide pro forma invoices sent to the party by a third party. In this regard, our Courts have held that an invoice is not proof of payment and that only a receipt meets the test".
18. To support this conclusion, the Court relies on Kampala City Council v Nakaye [1972] EA 446. The defunct Court of Appeal for East Africa emphasized that special damages demand absolute particularity of proof. Similarly, in Ouma V Nairobi City Council [1976] KLR 297, it was established that documentary evidence must affirmatively show the actual expenditure incurred by the claimant. Invoices fail this evidentiary threshold.
19. The Court must now look at the documents produced. The objective is to set out what special damages were actually proved. The Respondent relied heavily on an interim bill from Aga Khan Hospital. It is dated the 26th August, 2021. The amount is Kshs. 1,387,874.16. It explicitly states that it is an approximate rough estimate. There is no receipt attached to this bill.
20. The record also contains an invoice from Pandya Memorial Hospital. It is dated the 12th October, 2021. The amount is Kshs. 2,500/=. It is addressed to the National Hospital Insurance Fund. There are also various sales invoices from Aga Khan Hospital. None of these documents are receipts. They do not demonstrate actual payment by the Respondent.
21. The Court observes only two legitimate receipts on record. The first is dated the 31st August, 2021. It was issued by Dr. Abdalla Kassim. The amount is Kshs. 1,000/=. The payment is for a consultation fee. The second is dated the 14th February, 2022. It was issued by Dr. Mwarumba. The amount is Kshs. 3,000/=. The payment is for a medical report.
22. The Court must reconcile the proven amounts with the pleadings. A party is strictly bound by their pleadings. The Court cannot award a sum higher than what was pleaded for a specific item. The Respondent pleaded Kshs. 2,000/= for the medical report. The receipt produced is for Kshs. 3,000/=. The award is therefore capped at the pleaded Kshs. 2,000/=.
23. The receipt for Kshs. 1,000/= relates to a medical consultation. This falls squarely within the broad pleading of treatment. The Court accepts this as strictly proved. The total sum of special damages strictly pleaded and specifically proved is established at Kshs. 3,000/=.
24. The Trial Court's award of Kshs. 1,413,136/= was based on conjecture. It was based on unreceipted estimates and invoices. The award offends the established legal principles governing special damages. The Trial Court misapprehended the law. The award must be set aside.
25. As to the costs, the same follow the event. The Appellant has succeeded in this Appeal. The Appellant is entitled to the costs of the Appeal.
Determination
26. In conclusion, the Court determines this Appeal in the following manner:
a) THAT the Appeal is HEREBY allowed.
b) THAT the Judgment and Decree of the Lower Court awarding Special damages of Kshs 1,413,136/= to the Respondent is HEREBY quashed and set aside in its entirety. It is instead replaced and substituted by a Judgment and Decree on special damages of the amount strictly proved by the Respondent being Kshs. 3,000/=.
c) THAT the Appellant is awarded the costs of this Appeal.
27. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Nyambane for the Appellant.
Miss Mwango for the Respondent.
Mr. Mohamed - Court Assistant.