[2022] KEHC 1633 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO. 43 OF 2020

BETWEEN

CHARLES MWIRIGI........................................................................APPELLANT

AND

FREDRICK KITHINJI KINYUA t/a BARAKA TRADERS.......RESPONDENT

(Being an appeal from the judgment and decree in Meru CMCC NO. 118 of 2017 by Hon. H.Ndungu (CM) on 19th May, 2020)

JUDGMENT

1. By a plaint dated 27th June, 2017 and amended on 25th July, 2019, Respondent sought general and special damages as against the Appellant, Edwin Waweru (Waweru) and Phineas Mugambi (Mugambi) and 2 others for loss of goods on transit.

2. By a judgment dated 19th May, 2020, the learned trial magistrate found Appellant and 2 others liable at 100% and awarded Respondent Kshs. 1,000,000/- for breach of contract, Kshs. 1,236,000/- special damages, costs of the suit and interest.

The Appeal

3. The Appellant being dissatisfied with the lower court’s decision preferred this appeal on eight grounds but mainly on the grounds that the court erred in attributing the loss of the goods to the Appellant and for awarding damages for breach of contract.

SUBMISSIONS BY THE PARTIES

4. On 08th December, 2021, this court directed that the appeal be canvassed by way of written submission which the parties dutifully filed.

Analysis and Determination

5. In carrying out its mandate, an appellate court must reconsider the evidence before it, evaluate it and draw its own conclusions.

6. In John Onyango & another vs. Samson Luwayi [1986] eKLRthe Court of Appeal expressed itself as follows: -

“This court will not interfere with the findings of fact of the two lower courts unless it is clear that the magistrate and the judge have so misapprehended the evidence that their conclusions are based on incorrect bases.”

7. I have carefully considered the evidence on record and the submission and cases cited by both parties and I have deduced the following issues for determination:

1. WhetherWaweru was a servant of the Appellant

2. WhetherWaweru was transporting the Respondent’s sugar with the authority of the Appellant

3. Whether Respondent’s 240 bags of sugar were lost

4. Whether there was a contractual relationship between the Appellant and the Respondent

5. Whether Appellant was vicariously liable for the actions ofWaweru

6. Whether the award of damages was justified

7. Who pays the costs of the appeal

WhetherWaweru was a servant of the Appellant

8. Proceedings in Makindu SPM CR. Case No. 1209 of 2016 disclose that Appellant informed that court that he had employed Waweru to drive his motor vehicle KCD 890M.

WhetherWaweruwas transporting the Respondent’s sugar with the authority of the Appellant

9. Proceedings in Makindu SPM CR. Case No. 1209 of 2016 further disclose that on 10th October, 2016, Waweru informed him that he had got business to transport sugar and he sent him money for fuel by Mpesa.

Whether Respondent’s 240 bags of sugar were lost

10. Proceedings in Makindu SPM CR. Case No. 1209 of 2016 additionally disclose that the 240 bags of sugar that Waweru was transporting using the Appellant’s motor vehicle KCD 890M was not delivered to the owner, Respondent herein.

11. Whether there was a contractual relationship between the Appellant and the RespondentChitty on Contracts, Volume II para 33 – 003states that: -

“...any person is to be considered a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an understanding with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person.

12. There is no doubt that Waweru received the Respondent’s goods with the understanding that he was to deliver the goods in good order. Whereas it is not disputed that there was no written agreement between Appellant and the Respondent, the taking of Respondent’s goods by Waweru, with the express consent of the Appellant created a contractual obligation on the Appellant to ensure that the goods were delivered to the Respondent as agreed which was never to be.

Whether Appellant was vicariously liable for the actions ofWaweru

13. I have considered the holding in Nakuru Automobile HouseLtd v Ziaudin [1987] eKLRwhere the Court of Appeal cited with approval the holding by Lord Wilberforce in Morgans v Launchbury & others[1972], 2 All ER 606 at page 609 where he stated that:

“For I regard it as clear that in order to fix vicarious liability on the owner of a car … it must be shown that the driver was using it for the owner’s purposes, under delegation of a task or duty … but it has never been held that mere permission is enough to establish vicarious liability…”.

In that case it was held by the House of Lords that:

“…in order to fix liability on the owner of a car for the negligence of its driver, it is necessary to show either that the driver was the owner’s servant or that at the material time, the driver was acting on the owner’s behalf as his agent. To establish the agency relationship, it is necessary to show that the driver was using the car at the owner’s request, express or implied, or on his instructions and was doing so in performance of a task or duty delegated to him by the owner.”

14. From the evidence on record, it has been shown that Waweru was using Appellant’s motor vehicle KCD 890M to transport Respondent’s goods with the express authority of the Appellant who even sent money for fuel by Mpesa.

15. Consequently, I find that the Appellant was not stranger to the contract to transport the Respondent’s goods and that the trial court rightly found that the Appellant was vicariously liable for the negligent acts of his agent and driver Waweru whom he had allowed to use his vehicle to transport Respondent’s goods and was in the course of executing that duty when the goods were lost.

Whether the award of damages was justified

16. Both parties agree that the special damages in the sum of Kshs. 1,236,000/- was properly quantified, pleaded and proved and rightly awarded.

17. In awarding damages for breach of contract, the learned trial magistrate rightly found that the Respondent did NOT prove loss of profits but stated that his capital running of Kshs. 1,236,000/- had been on the wind for close to 4 years and thus awarded him Kshs. 1,000,000/-.

18. The Court of Appeal in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR stated as follows:

“….as a general rule general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In DHARAMSHI vs. KARSAN [1974] EA 41, the former Court of Appeal held that general damages are not allowable in addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication. And so it would be. See also SECURICOR (K) vs. BENSON DAVID ONYANGO& ANOR [2008] eKLR. The same situation applies to the case at bar in that the respondent having quantified what it considered to have been the loss it suffered, and gone on to particularize the same, there would be absolutely no basis upon which the learned Judge would go ahead to award the totally different, unrelated, unclaimed and unquantified sum of Kshs. 30 million merely because he believed that the respondent “had suffered serious damages” (sic). What was suffered or was believed to have been suffered, the damage that is, to be compensated by way of damages, could only be known by the respondent and it claimed it in specific terms which, in the event, it was unable to prove. To award it anything else would be to engage in sympathetic sentimentalism as opposed to proof-based judicial determination.”

19. Having considered the evidence on record, I find that the Kshs. 1,000,000/- awarded as general damages was absolutely without foundation, was not supported by any authority on quantum and that the figure was whimsically and capriciously imposed. I am therefore not surprised that Respondent did not defend the said sum.

20. In view of the foregoing analysis, it is plain that the appeal partially succeeds in the following terms

1. Liability at 100% against the Appellant and two others jointly and severally is confirmed

2. The award ofspecial damages in the sum of Kshs. 1,236,000/- is also confirmed.

3. The award of Kshs. 1,000,000/- in general damages is set aside.

4. Appellant shall bear half costs of this appeal

DATED AT MERU THIS 10TH DAY OF MARCH, 2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant -Morris Kinoti

For Appellant - Ms. Maore for G.M.Wanjohi & Co. Advocates

For Respondent - Mr. Kahiga for Mirugi Kariuki & Co. Advocates