REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
CIVIL APPEAL NO. E006 OF 2025
SHANE ALI SHORCHA………………………..………… APPELLANT
VERSUS
AHMED DAWE DIME………………………….……..RESPONDENT
( Being an appeal from the judgment of Hon W.K Cheruiyot (Mr) Principal Magistrate delivered on 11 th July 2025 in the Senior Principal Magistrate Court at Moyale in Civil suit No. E003 of 2023 )
ARISING FROM
AHMED DAWE DIME………………………..………..……..PLAITIFF
VERSUS
SHANDE ALI SHORCHA…………………….………… DEFENDANT
JUDGEMENT
A. Introduction
1. This appeal arises from the judgment/decree of Honourable W.K Cheruiyot Principal Magistrate delivered on 13 th August 2024 in Moyale Senior Principal Magistrate court case No. E003 of 2023 , where he awarded the Respondent a total of Ksh.543,700/= , being costs of the damaged fence and Kshs 807,050/= being the cost of putting up a new fence, all totalling to Kshs 1,350,750/= plus costs of the primary suit.
B. Pleadings
2. The Respondent instituted the primary suit by filing his plaint dated 16 th June 2023, where he averred that on 4 th November 2020, the appellant unlawfully entered into his parcel of land and maliciously destroyed his fence made of barbed wire, chain link and galvanized wire all valued at Kshs 543,700/= . He reported this incident to the police and after investigations the Appellant was arrested and charged with the offence of Malicious damage to property contrary to Section 339(1) of the Penal Code vide Moyale Principal Magistrate Court Criminal Case No E005 OF 2021 and after trial was convicted and sentenced to a probation sentence of two (2) years.
3. After demolishing his fence, the Appellant had proceeded to build a new boundary wall, which he left incomplete after his arrest and upon completion of the criminal case, he had to incur expenses to demolish the incomplete wall and put up a new boundary wall, which works had been costed by the resident Engineer as follow; Cost of the damages fence Kshs 543,700/= , the cost of demolishing the fence put up by the appellant at Kshs 30,000/= and the cost of putting up another fence at Kshs 807,050/= , all totalling to Kshs 1,480,750/= which he claimed.
4. The respondent further averred that he had been inconvenienced by the appellants action, disturbance, which caused him to suffer mental and emotional anguish and thus also sought general damages thereof.
5. The appellant on their part did file a statement of defense where he denied the averments made in the plaint and put the respondent to strict proof thereof. He further averred that the appellant did not own Plot Number 1268 within Moyale Township and thus had no cause of action against him. Finally, he also stated he had preferred an appeal against his conviction and sentence passed in Moyale Criminal case No E005 of 2021 and that the respondent was not entitled general damages sought. He thus urged the court to dismiss the said suit with costs.
6. The respondent testified in support of his case, and adopted his witness statement, which essentially aligned with the matter pleaded. Under cross examination he insisted that the suit property was his and referred the appellants counsel to the letter of allotment issued by the county government in support of the same and sale agreement proving that he had bought the said plot from one Dahabo Khalif Mohammed, who also testified as PW2 in support of the said contention.PW3 Boku Marsa Soro, and PW4 Jillo Aila Hirbo also confirmed particulars relating to the incident that occurred.
7. In response, the appellant also adopted his witness statement and denied damaging the respondents fence as alleged. He further inferred that the respondent was not the owner of the suit parcel of land and thus had no locus to sue in respect of the same. He also confirmed that he had face criminal prosecution for forcible detainer and malicious damage to property, and was convicted, but he had subsequently appealed against the said finding. Engineer Willaim Ogada had also testified in the criminal proceedings and he had not objected to his evidence being used to support the respondent’s case.
8. DW2 to DW4 all testified and confirmed that the appellant owned his parcel of land, which he bought from DW2 and DW5 also confirmed that the appellant instructed him to construct his perimeter fence along the common boundary of the two adjust parcels of land.
9. At the close of the appellant’s case, the learned trial magistrate considering the evidence adduced, submissions filed, and entered judgment in favour of the respondent as aforestated above.
C. The Appeal
10. The appellant being wholly dissatisfied by the said judgement did file his memorandum of appeal dated 28 th July 2025 and raised the following grounds of appeal;
a. That the learned magistrate erred in law and in fact in awarding the Respondent Special damages that were not proved.
b. That the learned trial magistrate erred in law and fact by relying on and using hearsay evidence.
c. That the learned Magistrate erred in law and in fact by relying on evidence and report of third party not produced in court by the maker of the report.
d. That the learned trial magistrate erred in law and in fact in making unjustified and excessively high awards for damages.
e. That the learned magistrate erred in both law and fact in dismissing the evidence adduced by both the Appellant hence arriving at a one-sided judgment.
f. The learned Magistrate erred in law and fact in misdirecting in law on the standard and burden of proof.
11. The Appellant thus prayed that his Appeal be allowed and that the judgment of the trial court be set aside in its entirety and the primary suit be dismissed with costs.
D. Parties Submissions
(i) The Appellants Submissions
12. The appellant relied on their submissions dated 13.04.2026, where they faulted the trial Magistrate for failing to interrogate critical aspects of the respondent’s case, and wrongly shifted the balance on proof to him, by wrongly holding that the valuation report was not controverted, which finding was not true and also ignored the fact that the precise boundary between the parties’ parcels of land had not been determined, and therefore trespass was not established. Secondly the trial court had ignored his evidence that the respondent did not own the neighbouring parcel of land, where the alleged perimeter wall was brought down and thus had no locus standi to file the said suit. Reliance was placed in Karugi & Another Vs Kabiya & 3 others (1987) KLR 347 & Buchere Vs Indimuli (Environment & land case No 275 of 2015), (2025) KEELC 4085 (KLR) , Where the said issues was discussed.
13. The Appellant further did contend that the trial court erred in admitting the public works engineer assessment report, when its maker was not called to testify over its content nor was any attempt made to bring the report within the statutory exceptions to hearsay rule under Section 35 of the Evidence Act . He had also actively objected to the said report being produced, but his objection had been ignored by the trial court. Reliance was placed in the case of Parker & Another Vrs NQ & 2 Others (Civil Appeal No 139 of 2020) (2023) KECA 908 (KLR) , Where it was held that documentary evidence cannot be relied upon unless its maker is called, save where it falls within recognized exceptions.
14. This was a clear misdirection, which elevated an untested and disputed document to the status of conclusive evidence, thereby occasioning a miscarriage of justice.
15. On the special damages awarded, it was the appellants contention that though the same was specifically pleaded, the evidentiary foundation supporting the same was wholly inadequate based on the impugned valuation report already alluded to above. The court was therefore left with a single, unverified document used as the basis for awarding a substantial monetary award. Reliance was placed in Capital Fish Kenya Ltd Vs Kneya Power & lighting Co Ltd (2016) eKLR, where it was held that strict proof of special damages requires a degree of evidentiary certainty that goes beyond a mere balance of probabilities.
16. Finally, the appellant also stressed that the award of Kshs 1,350,750/= was inordinately high, excessive and speculative and thus urged this court to set it aside based on the wrong principles used to award the same. Reliance was placed in Butt Vs Khan (1981) KLR 349 and Kenfro Africa Ltd T/A Meru Express Service Vs Lubia (1982-88) 1KAR , where the court of appeal held that interference is justified where irrelevant factors were taken into account or relevant factors were ignored.
17. The Appellant thus urged this court to find merit in his appeal and proceed to allow the same.
B. The Respondents Submissions
18. The Respondent counsel filed his submissions dated 24 th April 2026 and stated that before the civil suit was filed, the Appellant had been charged with the offence of malicious damage to property in Moyale PMCC NO E003 of 2023 and had been found guilty and sentenced to serve a probation sentence of two (2) years. He did not Appeal against the said conviction and/or sentence and by virtue of Section 175(2)(c) of the Criminal procedure Code, Cap 75 was responsible to settle Civil liability obtaining. Further Section 23(1) of the Victims Protection Act 2014 , also accords the victim the right to compensation from the offender and thus the trial Magistrate could not be faulted to finding in his favour.
19. As regards the valuation report, the respondent clarified that the said resident engineer had testified in the criminal case and there was no objection when the said report was produced into evidence. The Appellant’s objection was therefore misplaced and urged the court to find that he had proved his case on a balance of probabilities.
20. The respondent thus urged the court not to be disturbed the damages awarded and be pleased to dismiss this appeal with costs.
E. Analysis and Determination
21. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.
22. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari (Deceased) by L. Rs (2001) 3 SCC 179.
23. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Joseph AIR 1969 Keral 316.
24. This Appeal only challenges the award of special damages. In David Bagine v Martin Bundi [1997] eKLR , the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177) , where he that:
[The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
25. In Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011) , Mahmud Mohammed, JSC. delivering the judgment of the supreme court of Nigeria stated:
I must emphasise that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff…. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award.
26. The principles that run through the decisions referred to above, are clear that special damages must be strictly proved and that courts must not relax this principle. The Appellant specifically pleaded and sought for damages to the tune of Kshs 1,480,750/=. His claim supporting documents, including the Engineers report assessing the damage cost and cost of repairs were all produced into evidence by consent and the Appellants counsel did not object to the same. It is also not denied that the said Engineer testified in the criminal case, which proceedings were produced as Exhibit 8. The Appellant then cannot be heard to complain of the said evidence as it was procedurally admitted without any objection on their part.
27. Without doubt, the respondent case was proved, but this court notes that to pay the respondent the cost of the damaged fence and the cost of restoring the same is double payment and if allowed to stand would amounts to unjust enrichment. The respondent is only justified to claim the cost of restoring his fence and pulling down the partially built wall, which the Appellant had put up.
E DISPOSITION
28. This Appeal is therefore partially successful. The award of Kshs 543.700/= awarded for cost of the fence brought down is hereby set aside in its entirety. The other aspects of the primary decree is upheld
29. Each party will bear their own costs as this Appeal is only partially successful.
30. It is so ordered.
Dated, signed and delivered virtually at Marsabit this…30th…. day of JULY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …30th……day of JULY ,2026.
In the presence of : -
………………………………………………………..Appellant
……………………………………………………….Respondent
…………………ABDOW………………………….Court Assistant
MARSABIT HCCA APPEAL NO E006 OF 20252
IN THE HIGH COURT OF KENYA AT MARSABIT
APPELLATE DIVISION
CIVIL APPEAL NO. E006 OF 2025
SHANE ALI SHORCHA………………………..………… APPELLANT
VERSUS
AHMED DAWE DIME………………………….……..RESPONDENT
( Being an appeal from the judgment of Hon W.K Cheruiyot (Mr) Principal Magistrate delivered on 11 th July 2025 in the Senior Principal Magistrate Court at Moyale in Civil suit No. E003 of 2023 )
ARISING FROM
AHMED DAWE DIME………………………..………..……..PLAITIFF
VERSUS
SHANDE ALI SHORCHA…………………….………… DEFENDANT
JUDGEMENT
A. Introduction
1. This appeal arises from the judgment/decree of Honourable W.K Cheruiyot Principal Magistrate delivered on 13 th August 2024 in Moyale Senior Principal Magistrate court case No. E003 of 2023 , where he awarded the Respondent a total of Ksh.543,700/= , being costs of the damaged fence and Kshs 807,050/= being the cost of putting up a new fence, all totalling to Kshs 1,350,750/= plus costs of the primary suit.
B. Pleadings
2. The Respondent instituted the primary suit by filing his plaint dated 16 th June 2023, where he averred that on 4 th November 2020, the appellant unlawfully entered into his parcel of land and maliciously destroyed his fence made of barbed wire, chain link and galvanized wire all valued at Kshs 543,700/= . He reported this incident to the police and after investigations the Appellant was arrested and charged with the offence of Malicious damage to property contrary to Section 339(1) of the Penal Code vide Moyale Principal Magistrate Court Criminal Case No E005 OF 2021 and after trial was convicted and sentenced to a probation sentence of two (2) years.
3. After demolishing his fence, the Appellant had proceeded to build a new boundary wall, which he left incomplete after his arrest and upon completion of the criminal case, he had to incur expenses to demolish the incomplete wall and put up a new boundary wall, which works had been costed by the resident Engineer as follow; Cost of the damages fence Kshs 543,700/= , the cost of demolishing the fence put up by the appellant at Kshs 30,000/= and the cost of putting up another fence at Kshs 807,050/= , all totalling to Kshs 1,480,750/= which he claimed.
4. The respondent further averred that he had been inconvenienced by the appellants action, disturbance, which caused him to suffer mental and emotional anguish and thus also sought general damages thereof.
5. The appellant on their part did file a statement of defense where he denied the averments made in the plaint and put the respondent to strict proof thereof. He further averred that the appellant did not own Plot Number 1268 within Moyale Township and thus had no cause of action against him. Finally, he also stated he had preferred an appeal against his conviction and sentence passed in Moyale Criminal case No E005 of 2021 and that the respondent was not entitled general damages sought. He thus urged the court to dismiss the said suit with costs.
6. The respondent testified in support of his case, and adopted his witness statement, which essentially aligned with the matter pleaded. Under cross examination he insisted that the suit property was his and referred the appellants counsel to the letter of allotment issued by the county government in support of the same and sale agreement proving that he had bought the said plot from one Dahabo Khalif Mohammed, who also testified as PW2 in support of the said contention.PW3 Boku Marsa Soro, and PW4 Jillo Aila Hirbo also confirmed particulars relating to the incident that occurred.
7. In response, the appellant also adopted his witness statement and denied damaging the respondents fence as alleged. He further inferred that the respondent was not the owner of the suit parcel of land and thus had no locus to sue in respect of the same. He also confirmed that he had face criminal prosecution for forcible detainer and malicious damage to property, and was convicted, but he had subsequently appealed against the said finding. Engineer Willaim Ogada had also testified in the criminal proceedings and he had not objected to his evidence being used to support the respondent’s case.
8. DW2 to DW4 all testified and confirmed that the appellant owned his parcel of land, which he bought from DW2 and DW5 also confirmed that the appellant instructed him to construct his perimeter fence along the common boundary of the two adjust parcels of land.
9. At the close of the appellant’s case, the learned trial magistrate considering the evidence adduced, submissions filed, and entered judgment in favour of the respondent as aforestated above.
C. The Appeal
10. The appellant being wholly dissatisfied by the said judgement did file his memorandum of appeal dated 28 th July 2025 and raised the following grounds of appeal;
a. That the learned magistrate erred in law and in fact in awarding the Respondent Special damages that were not proved.
b. That the learned trial magistrate erred in law and fact by relying on and using hearsay evidence.
c. That the learned Magistrate erred in law and in fact by relying on evidence and report of third party not produced in court by the maker of the report.
d. That the learned trial magistrate erred in law and in fact in making unjustified and excessively high awards for damages.
e. That the learned magistrate erred in both law and fact in dismissing the evidence adduced by both the Appellant hence arriving at a one-sided judgment.
f. The learned Magistrate erred in law and fact in misdirecting in law on the standard and burden of proof.
11. The Appellant thus prayed that his Appeal be allowed and that the judgment of the trial court be set aside in its entirety and the primary suit be dismissed with costs.
D. Parties Submissions
(i) The Appellants Submissions
12. The appellant relied on their submissions dated 13.04.2026, where they faulted the trial Magistrate for failing to interrogate critical aspects of the respondent’s case, and wrongly shifted the balance on proof to him, by wrongly holding that the valuation report was not controverted, which finding was not true and also ignored the fact that the precise boundary between the parties’ parcels of land had not been determined, and therefore trespass was not established. Secondly the trial court had ignored his evidence that the respondent did not own the neighbouring parcel of land, where the alleged perimeter wall was brought down and thus had no locus standi to file the said suit. Reliance was placed in Karugi & Another Vs Kabiya & 3 others (1987) KLR 347 & Buchere Vs Indimuli (Environment & land case No 275 of 2015), (2025) KEELC 4085 (KLR) , Where the said issues was discussed.
13. The Appellant further did contend that the trial court erred in admitting the public works engineer assessment report, when its maker was not called to testify over its content nor was any attempt made to bring the report within the statutory exceptions to hearsay rule under Section 35 of the Evidence Act . He had also actively objected to the said report being produced, but his objection had been ignored by the trial court. Reliance was placed in the case of Parker & Another Vrs NQ & 2 Others (Civil Appeal No 139 of 2020) (2023) KECA 908 (KLR) , Where it was held that documentary evidence cannot be relied upon unless its maker is called, save where it falls within recognized exceptions.
14. This was a clear misdirection, which elevated an untested and disputed document to the status of conclusive evidence, thereby occasioning a miscarriage of justice.
15. On the special damages awarded, it was the appellants contention that though the same was specifically pleaded, the evidentiary foundation supporting the same was wholly inadequate based on the impugned valuation report already alluded to above. The court was therefore left with a single, unverified document used as the basis for awarding a substantial monetary award. Reliance was placed in Capital Fish Kenya Ltd Vs Kneya Power & lighting Co Ltd (2016) eKLR, where it was held that strict proof of special damages requires a degree of evidentiary certainty that goes beyond a mere balance of probabilities.
16. Finally, the appellant also stressed that the award of Kshs 1,350,750/= was inordinately high, excessive and speculative and thus urged this court to set it aside based on the wrong principles used to award the same. Reliance was placed in Butt Vs Khan (1981) KLR 349 and Kenfro Africa Ltd T/A Meru Express Service Vs Lubia (1982-88) 1KAR , where the court of appeal held that interference is justified where irrelevant factors were taken into account or relevant factors were ignored.
17. The Appellant thus urged this court to find merit in his appeal and proceed to allow the same.
B. The Respondents Submissions
18. The Respondent counsel filed his submissions dated 24 th April 2026 and stated that before the civil suit was filed, the Appellant had been charged with the offence of malicious damage to property in Moyale PMCC NO E003 of 2023 and had been found guilty and sentenced to serve a probation sentence of two (2) years. He did not Appeal against the said conviction and/or sentence and by virtue of Section 175(2)(c) of the Criminal procedure Code, Cap 75 was responsible to settle Civil liability obtaining. Further Section 23(1) of the Victims Protection Act 2014 , also accords the victim the right to compensation from the offender and thus the trial Magistrate could not be faulted to finding in his favour.
19. As regards the valuation report, the respondent clarified that the said resident engineer had testified in the criminal case and there was no objection when the said report was produced into evidence. The Appellant’s objection was therefore misplaced and urged the court to find that he had proved his case on a balance of probabilities.
20. The respondent thus urged the court not to be disturbed the damages awarded and be pleased to dismiss this appeal with costs.
E. Analysis and Determination
21. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.
22. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari (Deceased) by L. Rs (2001) 3 SCC 179.
23. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Joseph AIR 1969 Keral 316.
24. This Appeal only challenges the award of special damages. In David Bagine v Martin Bundi [1997] eKLR , the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177) , where he that:
[The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
25. In Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011) , Mahmud Mohammed, JSC. delivering the judgment of the supreme court of Nigeria stated:
I must emphasise that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff…. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award.
26. The principles that run through the decisions referred to above, are clear that special damages must be strictly proved and that courts must not relax this principle. The Appellant specifically pleaded and sought for damages to the tune of Kshs 1,480,750/=. His claim supporting documents, including the Engineers report assessing the damage cost and cost of repairs were all produced into evidence by consent and the Appellants counsel did not object to the same. It is also not denied that the said Engineer testified in the criminal case, which proceedings were produced as Exhibit 8. The Appellant then cannot be heard to complain of the said evidence as it was procedurally admitted without any objection on their part.
27. Without doubt, the respondent case was proved, but this court notes that to pay the respondent the cost of the damaged fence and the cost of restoring the same is double payment and if allowed to stand would amounts to unjust enrichment. The respondent is only justified to claim the cost of restoring his fence and pulling down the partially built wall, which the Appellant had put up.
E DISPOSITION
28. This Appeal is therefore partially successful. The award of Kshs 543.700/= awarded for cost of the fence brought down is hereby set aside in its entirety. The other aspects of the primary decree is upheld
29. Each party will bear their own costs as this Appeal is only partially successful.
30. It is so ordered.
Dated, signed and delivered virtually at Marsabit this…30th…. day of JULY 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …30th……day of JULY ,2026.
In the presence of : -
………………………………………………………..Appellant
……………………………………………………….Respondent
…………………ABDOW………………………….Court Assistant
MARSABIT HCCA APPEAL NO E006 OF 20252