[2017] KEHC 1317 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 491 OF 2005

ASTRA INSURANCE BROKERS LIMITED..................APPELLANT

- V E R S U S -

INSURANCE COMPANY OF EAST AFRICA LTD....RESPONDENT

(Being an appeal from the judgement of Hon. Meoli (Mrs.) SPM

delivered on 8th July 2005 in Nairobi Chief Magistrate’s Court,

in Milimani CMCC No. 642 of 2004)

JUDGEMENT

1) On 8th July 2005, Hon. Meoli, the then learned Senior Principal Magistrate delivered judgment in the sum of kshs.956,450/= in favour of Insurance Company of East Africa Ltd, the respondent herein and against Astra Insurance Brokers Ltd, the appellant herein. There was an agency relationship between the appellant and the respondent. The appellant was to collect insurance premiums on behalf of the respondent and was required to thereafter remit to the respondent. It would appear the appellant breached the agreement by failing to remit the premiums it collected on behalf of the appellant prompting the appellant to file an action for recovery of the same. Being dissatisfied with the decision the appellant filed this appeal whereof it put forward the following grounds:

1. The learned magistrate erred in law and facts in awarding special damages not leaded or prayed for.

2. The learned magistrate erred in law and facts in considering evidence of facts not pleaded.

3. The learned magistrate erred in law and facts in awarding special damages not supported by evidence.

4. The learned magistrate erred in law and fact in failing to consider the defence filed.

5. The learned magistrate erred in law and fact in failing to consider the cross examination of the plaintiff’s witness by the defence.

2) When the appeal came up for hearing, learned counsels recorded a consent order to have the appeal disposed of by written submissions. I have re-evaluated the case that was before the trial court. I have further considered the rival submissions.

3) On the first ground of appeal, it is the submission of the appellant that it was erroneous for the trial court to award a sum of ksh.956,647/= which amount was neither pleaded nor prayed for since the claim is in the nature of special damages.

4) In response to this ground, the respondent urged this court to reject the same. It was pointed out that the respondent specifically pleaded for special damages in the plaint and tendered evidence proving the amount awarded. Having considered the competing arguments it is not in dispute that special damages must be specifically pleaded and proved.

5) However, the law and practice has shown that a party may specifically plead but fail to prove the whole amount like in this appeal. In such a case, the court will normally award what amount has been proved. The decision by the trial magistrate to award the amount proved cannot therefore be faulted. Consequently, I find the first ground to be without merit.

6) The second ground of appeal is to the effect that the award given to the respondent was not supported by the evidence. It is pointed out by the appellant that none of the documents the respondent tendered in evidence in form of statement of accounts proved the claim. The respondent on the other hand was of the view that the respondent discharged the burden hence the trial magistrate was justified to make the award. The evidence of PW1 indicates that at the time of filing suit the appellant owed the respondent a sum of ksh.1,200,000/= and later some of the appellant’s customers paid the respondent directly therefore the respondent took into account the aforesaid amounts which reduced the outstanding amount to ksh.956,647 from ksh.1,200,000/=. PW1 appears to have also explained and clarified the appellant’s averment that the statements tendered in evidence shows a negative balance of ksh.495,694/15. I am satisfied by the explanation of PW1 that the amount in deficit was for paying other members of the Insurance management therefore it had nothing to do with this case.

7) In the end, I find no merit in this appeal. The same is dismissed with costs to the respondent.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

........................................ for the Appellant

.........................................for the Respondent