|Civil Appeal 41 of 2007
|James Mwangi v Alex Njuguna, John Ngunya & Attorney General
|08 Apr 2011
|Court of Appeal at Nairobi
|Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire, Daniel Kennedy Sultani Aganyanya
|James Mwangi v Alex Njuguna & 2 others  eKLR
|(Appeal from a judgment and decree of the High Court of Kenya at Nairobi (Lenaola, Ag. J) dated 17th September, 2004 in H.C.C.C. NO. 4240 of 1994)
|History Docket No:
|H.C.C.C. 4240 of 1994
Damages – General and Special damages – claim for general and special damages against the respondents - allegation by the appellant that the 1st and 2nd respondent had attacked him and occasioned bodily harm – proof of special damages – requirement by law to strictly prove special damages – where the appellant did not prove the special damages as alleged - whether the appellant was entitled to the special and general damages.
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
JUDGMENT OF THE COURT
This is an appeal by JAMES MWANGI, the appellant before us and the unsuccessful plaintiff in the suit, against the judgment of the High Court of Kenya at Nairobi (Lenaola, Ag. J. as he then was) delivered on 17th September, 2004, whereby the learned judge dismissed the appellant’s claim against the three respondents, Alex Njuguna, John Ngunya and the Attorney General, for both special and general damages.
The appellant had in his plaint dated 30th November, 1994 prayed for:-
The facts giving rise to the suit as discernible from the record of appeal appear to be as follows. In or about 1980s and 1990s the appellant was Chairman of the Village Committee of Mukuru slums within the City of Nairobi. He also operated a kiosk for selling vegetables within the slums. The 1st respondent Alex Njuguna was the appellant’s youth wing leader while the 2nd respondent John Ngunya was also a member of the village committee. It is plain from the evidence tendered in court that all was not well within the committee and there was a lot of jostling for leadership.
It was the appellant’s case that on 9th March, 1992 at about 7.00 p.m. while on his way home from South B, he met a group of people who attacked him occasioning him serious bodily injuries. As the road was well lit by electricity lights he was able to identify the 1st and the 2nd respondents within the group. After the assault he was left by the road side writhing in pain. He hired a taxi and went to report the incident at South B police station where he was instructed to go to hospital first for treatment and come later for a P3 form. However, nothing of significance occurred again until on 10th March, 1992 when he encountered the same group of people. Likewise, they assaulted him. He reported the incident to the same police station but no action was ever taken.
The appellant further pleaded that on 17th March, 1992, the 1st and the 2nd respondents led a group of about 50 people who destroyed his 8 rooms on his plot. Though the police arrested the two respondents and other people, they were set free at the police station.
The appellant testified that he made to the police a total of eleven (11) reports of assault, threats to kill and demolition of his houses by the 1st and the 2nd respondents. They were never arrested nor arraigned in court on any offence. He severally protested to the police but nothing happened.
On 19th March, 1992, the appellant went to the police to make a report of an attack at his house but he was instead arrested and charged at Makadara Law Court with an offence related to the breach of the peace. However, he was discharged by the court.
The appellant averred that because of continued harassment, he went into hiding for twelve (12) years and left his family in dire straits. He then filed suit claiming a total of Shs.140,000,000.00 categorized, inter alia, as follows:-
In response to the appellant’s claim the respondents stated that the appellant was engaged in illegal sales of plots within the Mukuru slums and when confronted he fled. He was pursued, arrested and later charged.
After hearing the evidence adduced by the parties together with the submissions thereto, the learned Judge held:-
The appellant being aggrieved by the decision of the learned Judge has preferred this appeal which although is based on ten (10) grounds of appeal, raises really one point for decision, that is to say whether or not the appellant had proved his claim; and also, whether he was entitled to damages at all.
The law requires that special damages be specifically pleaded and also strictly proved, failing which they are not for granting. See MWAI V KENYA TOURIST DEVELOPMENT CORPORATION  KLR 358. The record shows that all that the appellant did as far as special damages were concerned was to simply specify them in the plaint without proving them. He moreover never led any evidence in proof of them. In our view, the learned Judge cannot be faulted for not granting them.
Similarly, the appellant did not lay any basis in law upon which he could properly be awarded general damages. The appellant did not demonstrate how the 1st and the 2nd respondents’ alleged unlawful acts had injured him or caused him harm or damage. Neither did he show to the court how the 3rd respondent had failed to protect him.
This case, strange as it is, and probably belonging to the domain of that famous psychoanalyst and philosopher Sigmund Freud, appears to be founded, as the learned Judge observed, solely on “sour grapes”.
The appeal must fail and is accordingly dismissed. We make no order as to costs.