[2022] KEHC 1359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 355 OF 2012

BONIFACE NDIRANGU............................................................................................APPELLANT

-VERSUS-

CATERESS MILLING COMPANY................................................................1ST RESPONDENT

PETER KUGURU............................................................................................2ND RESPONDENT

(Being an appeal against the judgment and decree delivered by Honourable L. Arika (Mrs.)

(Senior Resident Magistrate) on 14th February, 2012 in Milimani CMCC no. 5925 of 2009)

JUDGMENT

1. The appellant herein filed a suit against the 1st and 2nd respondents vide the plaint dated 9th September, 2009 and amended on 25th October, 2010 and sought for the sum of Kshs.561,000/= as mesne profits and loss occasioned by the conversion of the motor vehicle registration number KBB 701A (“the subject motor vehicle”) and general damages for trespass and conversion of the subject motor vehicle. The appellant also prayed for costs of the suit plus interest.

2. The appellant pleaded in his amended plaint that he was at all material times the registered owner of the subject motor vehicle which he used to carry out a transport business in Thika and its environs at all material times.

3. The appellant pleaded in his amended plaint that on 7th September, 2009 the 1st respondent illegally took possession of the subject motor vehicle under the instructions of its Managing Director, the 2nd respondent, the result of which the appellant reported the matter at Industrial Police Station.

4. It is pleaded in the amended plaint that despite his oral requests for the release of the subject motor vehicle, the respondents neglected and/or refused to comply, thereby depriving the appellant use of the said vehicle for a period of 30 days, the result of which he suffered loss the particulars of which are set out in the amended plaint.

5. It is pleaded in the amended plaint that as a consequence of the foregoing, he was forced to hire another motor vehicle from JNK & Rescue Services to carry out his goods transportation business, costing him the sum of Kshs.561,000/=.

6. Upon service of summons, the 1st and 2nd respondents entered appearance and filed their statement of defence and counterclaim jointly, originally dated 14th October, 2009 and amended on 26th January, 2011 and re-amended on 11th October, 2011 to deny the allegations made in the amended plaint.

7. The respondents deny the appellant’s ownership of the subject motor vehicle and further deny being in illegal possession of the subject motor vehicle at all material times.

8. The respondents pleaded in their amended statement of defence that the appellant willingly left the subject motor vehicle in their possession as security for his indebtedness.

9. By way of their amended counterclaim, the respondents pleaded that on diverse dated between 22nd and 28th August, 2009 the 1st respondent delivered goods to the appellant on credit worth the sum of Kshs.498,500/= at his business premises situated in Thika, upon the agreement that the appellant would settle the amount by part payment, the first payment in the sum of Kshs.265,000/= becoming payable on or before 7th September, 2009.

10. The respondents pleaded that the appellant issued a postdated cheque of Kshs.265,000/= dated 7th September, 2009 and which cheque eventually bounced.

11. The respondents further pleaded in their amended counterclaim that at the time of filing the same, the appellant had not paid the total sum of Kshs.498,500/= owing, and which sum was being claimed in the counterclaim plus costs of the counterclaim and interest on the aforesaid amount.

12. At the formal hearing of the suit, the appellant testified and summoned two (2) witnesses, while the 2nd respondent testified for the defence case.

13. Upon close of submissions, the trial court in its judgment delivered on 14th February, 2012 dismissed both the appellant’s suit and the amended counterclaim, with an order being made for each party to bear its own costs.

14. However, the record shows that the trial court subsequently reviewed its earlier judgment on 14th June, 2012 and thereby entered judgment for the respondents and against the appellant on the amended counterclaim, in the sum of Kshs.265,500/= while maintaining its earlier dismissal order of the appellant’s suit and the order for parties to bear their own costs on both the suit and the amended counterclaim.

15. Being dissatisfied with the aforementioned decision, the appellant has sought to challenge the same on appeal and has put forward the following grounds of appeal in his memorandum of appeal dated 12th July, 2012:

i. THAT the learned trial magistrate erred in law and fact in dismissing the plaintiff’s suit whereas there was clear evidence that the plaintiff’s motor vehicle had been illegally held by the respondents.

ii. THAT the learned trial magistrate erred in law and fact in not awarding the plaintiff the sum of Kshs.561,000/= being the expenses incurred by the plaintiff in hiring another motor vehicle after his motor vehicle was illegally held by the respondents.

iii. THAT the learned trial magistrate erred in law and fact in not awarding the plaintiff damages as pleaded in the plaint for trespass to his motor vehicle by the defendant even after proving that his motor vehicle had been illegally held by the respondents.

iv. THAT the learned trial magistrate erred in law and fact in awarding the defendants the sum of Kshs.265,500/ and reviewing her own judgment.

v. THAT the learned trial magistrate erred in law and fact in reviewing her own judgment whereas there was no new evidence or information placed before her to warrant such a review and thus sitting on her own appeal.

vi. THAT the learned trial magistrate erred in law and fact in alluding to extraneous issues in her judgment and which issues were not in contention or raised during the entire hearing.

vii.THAT the learned trial magistrate erred in law and fact in failing to make a finding on documentary evidence produced by the plaintiff which clearly proved the plaintiff’s case and thus arriving at a wrong decision to the detriment of the appellant.

16. This court directed the parties to file written submissions on the appeal.

17. In his submissions dated 16th July, 2019 the appellant argues that the trial court erred in dismissing his case and yet he had brought sufficient evidence, both oral and documentary, to prove that the respondents had illegally and wrongfully held the subject motor vehicle, thereby making him entitled to the reliefs sought in the amended plaint, being the sum of Kshs.561,000/= on special damages and the sum of Kshs.500,000/= on general damages for trespass.

18. The appellant also faulted the trial court for awarding part of the sum claimed by the respondents in the amended counterclaim in the absence of proof of the same, and in so doing, reviewed her own judgment, contrary to the guiding principles for review stipulated under Order 45, Rule 1 of the Civil Procedure Rules, 2010 and restated by the Court of Appeal in the case of National Bank Of Kenya Limited v Ndungu Njau[1997]eKLR thus:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”

19. For the foregoing reasons, the appellant urges this court to allow the appeal and to set aside the judgment by the trial court.

20. The respondents filed joint submissions arguing that the appellant did not prove his case against them to the required standard and hence he was not entitled to any of the reliefs sought particularly on the special damages, further arguing that the evidence tendered by the appellant constituted falsehoods and inconsistencies.

21. The respondents have cited inter alia, the case of Hahn v. Singh [1985] KLR 716where it was held that for an award of special damages to be made, the same ought to be specifically pleaded and strictly proved.

22. On the subject of review, it is the contention of the respondents that the trial court acted correctly in reviewing its judgment concerning the amended counterclaim, where it had originally dismissed the amended counterclaim despite there being sufficient evidence on record of the sum of Kshs.265,500/= owing to the respondents by the appellant, which prompted their application for review, the result of which the trial court noted that there was an error apparent on the face of the record and which error was corrected by the trial court.

23. In view of the foregoing, the respondents urge this court to dismiss the appeal and to uphold the decision by the trial court.

24. I have considered the contending written submissions on appeal and the authorities relied upon. I have also re-evaluated the evidence which the trial court had the opportunity to look at, as required of me by law.

25. It is clear that the appeal essentially lies against the decision by the learned trial magistrate to dismiss the claim and to allow the amended counterclaim respectively. I will therefore address the seven (7) grounds of appeal raised contemporaneously under the two (2) limbs hereinbelow.

26. The first limb of the appeal has to do with whether the learned trial magistrate acted correctly in dismissing the appellant’s suit.

27. The appellant who was PW1 stated that he was at all material times in the business of selling flours and oils, the flours being supplied to him by the respondents and with whom he enjoyed a good relationship for a long period of time.

28. The appellant stated that later on, a problem arose amongst the parties over accounts, causing him to visit the respondent’s premises on 7th September, 2009 to address the issue with them but that they were unable to agree and that the 2nd respondent ordered the guards watching over their premises to detain the subject motor vehicle.

29. According to the testimony by the appellant, the subject motor vehicle was subsequently released to him after a period of 33 days pursuant to a court order, but that in the meantime he had to hire a separate vehicle to carry on his business, where he spent a sum of Kshs.17,000/= daily and amounting to a total cost of Kshs.561,000/=.

30. It was the evidence of the appellant that he did not leave the subject motor vehicle with the respondents as collateral for an outstanding debt and that the 2nd respondent utilized the subject motor vehicle during the time of detainment.

31. It was also the evidence of the appellant that he reported the matter to the police but that he did not have a police abstract.

32. Stephen Muthemba Wanjiru who was PW2 testified that he worked for the appellant at all material times as the driver of the subject motor vehicle and that on the material date, he had driven the subject motor vehicle to the respondents’ premises while in the company of the appellant.

33. The witness stated that he and the appellant left the subject motor vehicle at the premises of the respondents but reported the matter at Industrial Police Station and later went to collect it on 10th October, 2009 which was about 33 days later.

34. The witness further stated that they hired a separate vehicle for use between the material date and the date of release of the subject motor vehicle.

35. In cross-examination, it was the evidence of PW2 that on the material date, he left the respondents’ premises with the key to the subject motor vehicle, having locked it.

36. It was also the evidence of PW2 that he did not drive any of the vehicles hired subsequently and that during the 33 days, he remained at the appellant’s shop.

37. In re-examination, the witness stated that he had no knowledge as to the payments made for the hired vehicles.

38. Patrick Chege Ndungu who was PW3 gave evidence that he worked at JNK Transport Services at all material times and that he gave the appellant transport services between 7th September, 2009 and 9th October, 2009 at a cost of Kshs.17,000/= per day.

39. In cross-examination, the witness stated that he did not have any license for car hire services.

40. The 2nd respondent who was the 2nd defendant in the suit testified that the appellant was known to him as he would buy products from them and resell them to other parties.

41. The 2nd respondent further testified that on the material date, the appellant brought the subject motor vehicle to their premises for safe keeping and as security for the outstanding debts he had with them, and that upon parking the subject motor vehicle in a safe space, the appellant together with his driver left with the keys.

42. It was the evidence of the 2nd respondent that they did not use the subject motor vehicle and that when he received a call from the police about the issue, he explained that the appellant had willingly brought it to their premises as security for the outstanding debt.

43. The 2nd respondent stated that he later released the subject motor vehicle to the appellant when the court issued an order to that effect.

44. In her judgment, the learned trial magistrate reasoned that there was insufficient evidence to show that the subject motor vehicle had been detained by the respondents and that the evidence adduced by the respondents to show that the said vehicle was voluntarily parked there seems more logical.

45. The learned trial magistrate also reasoned that no OB extract of police abstract was tendered by the appellant as evidence that a complaint had truly been made by the police.

46. Consequently, the learned trial magistrate dismissed the appellant’s suit.

47. Upon my perusal of the record, I note that it is not in dispute that the parties herein enjoyed a business relationship at all material times. It is also not in dispute that there are instances where the appellant would previously issue postdated cheques for goods delivered and which cheques would later bounce. In my view, this would support the position by the respondents of the likelihood that the appellant was indebted to them.

48. Upon my examination of the pleadings and evidence on record, I observed that whereas it is apparent that no OB extract or police abstract was produced in court which makes it unclear whether any report was truly made to the police in respect to the subject motor vehicle, it is also apparent that there is nothing to show that the respondents trespassed on the appellant’s premises to seize the subject motor vehicle.

49. I support the finding by the learned trial magistrate that the evidence tendered indicates that it is more plausible than not that the appellant and PW2 transported the subject motor vehicle to the respondents’ premises as security for the outstanding debt, which dispels the argument of wrongful detainment of the said vehicle by the respondents.

50. Furthermore, the evidence tendered by and on behalf of the appellant indicates that he and/or PW2 left with the keys to the subject motor vehicle and there is no credible evidence to show that they were ever denied access to the subject motor vehicle during the time it was in the respondents’ premises.

51. Going by the evidence, while it is apparent that the appellant hired a separate motor vehicle to carry on his business during the period the subject motor vehicle was in the respondents’ premises, there is nothing to show that the expenses incurred or loss suffered in that respect was due to the fault or wrongdoing on the part of the respondents.

52. In view of the foregoing circumstances, I concur with the reasoning by the learned trial magistrate that the appellant had not proved his case for trespass and/or conversion against the respondents and I support her decision to dismiss the suit on that basis.

53. On the subject of what would have been awarded if the appellant had succeeded in his claim, I support the reasoning by the learned trial magistrate that the appellant would possibly be entitled to special damages for loss of user as specifically pleaded and strictly proved.

54. However, as the learned trial magistrate correctly found; in the absence of any credible evidence to support the claims for trespass/conversion; I would have declined to award any general damages under those heads.

55. There is also nothing on the record to indicate that the learned trial magistrate misconstrued or misapplied the evidence that was placed before her. I therefore see no reason to interfere with the dismissal order made on the suit.

56. The second limb of the appeal concerns itself with the issue on whether the learned trial magistrate arrived at a correct decision in respect to the respondents’ amended counterclaim.

57. In his evidence-in-chief, the appellant stated that he did not owe the respondents any of the sums pleaded in the amended counterclaim, and further stated that he paid in cash the sum of Kshs.261,000/= when the cheque bounced before being issued with an ETR receipt dated 28th August, 2009.

58. In cross-examination, it was the evidence of the appellant that the respondents would deliver flour to his business premises and that he would issue them with postdated cheques. He stated that on the material date, he issued them with a cheque dated 7th September, 2009 for the sum of Kshs.265,000/= which he later stopped.

59. The appellant further stated that the goods had already been delivered at the time of giving the cheque.

60. On his part, the 2nd respondent testified that on 11th July, 2009 the respondents had supplied goods worth the sum of Kshs.285,300/= to the appellant but that the latter issued bounced cheques to them on various dates.

61. In her decision and as earlier indicated, the learned trial magistrate had initially dismissed the amended counterclaim but later reviewed her decision upon the application by the respondents, thereby awarding the sum of Kshs.256,500/= out of the total sum of Kshs.498,500/= sought therein.

62. Upon my re-examination of the evidence on record, it is apparent that the appellant owed the respondents various sums of money at various dates owing to the bouncing cheques; this would explain the ETR receipt dated 28th August, 2009 and issued to indicate payment for supplies.

63. Suffice it to say that concerning the sum of Kshs.256,500/= which was eventually granted by the learned trial magistrtate upon review, the same is supported by the evidence on record, showing that the 1st respondent had filed a criminal case against the appellant, namely Criminal Case No. 4063 of 2009 filed at the Chief Magistrate’s Court at Makadara.

64. Going by the record, the appellant was charged in the above case with the offence of obtaining by false pretences contrary to Section 313 of the Penal Code. Upon hearing the case all the way to the appellant being put on his defence, the trial court found the appellant guilty and convicted him as a result.

65. In view of the foregoing, I am satisfied that the learned trial magistrate had basis on which to review her earlier decision of dismissing the amended counterclaim, in view of the presence of sufficient evidence on record to support part of the claim made and hence the error apparent on the face of the record. I therefore find that the learned trial magistrate arrived at a proper and reasonable finding in awarding the respondents the sum of Kshs.265,500/= and I see no reason to interfere with the same.

66. Accordingly, the appeal is hereby dismissed for lacking in merits.

The respondents shall have the costs of the appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 18th day of March, 2022.

..........................

J. K. SERGON

JUDGE

In the presence of:

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

.......for the 1st and 2nd Respondents