[2023] KEHC 25598 (KLR)

Chege v Nyakora (Civil Appeal E040 of 2022) [2023] KEHC 25598 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25598 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E040 of 2022

PN Gichohi, J

November 20, 2023

Between

James Kariuki Chege

Appellant

and

Peter Obure Nyakora

Respondent

(Being an Appeal arising out of the judgment and decree of Hon. G.N. Barasah (Resident Magistrate) in Ogembo Principal Magistrate’s Court Civil Case No. 174 of 2019 delivered on 31/05/2022)

Judgment

1. The Appellant was the Defendant and the Respondent was the Plaintiff in Ogembo PMCC No. 174 of 2019- Peter Obure Nyakora v James Kariuki Chege as per the Plaint dated 25/07/2019. The Respondent sued the Appellant as the owner of motor vehicle registration number KCQ 137Z Isuzu.

2. The Respondent pleaded that on 23/06/2019 along the Nyangusu - Keroka Road at Gucha junction, the Appellant drove his vehicle so negligently that he caused it to lose control and knock a building. Resultantly, the Respondent’s properties suffered extensive damage. He therefore prayed for judgment against the Appellant for:-a.General damagesb.Special damages of Kshs.10,000/=.c.Costs of the suit.d.Interest (a) (b) and (c)e.Any other relief that the Court may deem fit to grant.

3. In its judgment dated 31/05/2022, the trial court found the Appellant 100% liable for the accident and awarded the Respondent Kshs. 791,000. 00 as general damages and Kshs. 10,000. 00 as special damages. It also awarded him costs of suit together with interest from the date of damage.

4. The Appellant is dissatisfied with the decision of the trial court hence the Appeal. His Memorandum of Appeal dated 23/06/2022 and filed on 24/06/2022 raised seven (7) grounds of his Appeal which can be summarised as follows:-1. The learned trial magistrate erred in law and in fact in by failing to appreciate that the Respondent had not proved his case as required by law.2. The learned trial magistrate erred in law and in fact in by failing to appreciate that the Respondent’s claim was for special damages which ought to be specifically pleaded and proved.3. The learned trial magistrate erred in law and in fact by awarding the Respondent Kshs. 801,000/= without any legal basis.4. The learned trial magistrate erred in law and in fact when he relied on extraneous issues as a basis for his finding on liability and sums awarded.5. The learned trial magistrate erred in law and in fact by failing to consider the Appellant submissions.

5. In the premised circumstances, the Appellant prayed that:-1. The judgment and decree of the trial court be aside, varied and/or quashed.2. The Respondent’s suit be dismissed with costs and that costs of the Appeal be borne by the Respondent.3. Any other such and /or further orders that this Court may deem just and fit to grant.

6. The Appeal was canvassed by way of written submissions. According to the Appellant’s submissions dated 13/01/2023 and filed on even date, the Respondent’s claim was material damage and therefore, the value of his properties ought to have been ascertained. The Appellant submitted that the trial court failed to appreciate the principles governing pleadings and special damages and therefore erroneously awarded general damages.

7. The Appellant was emphatic that the Respondent was well aware of the value of the goods damaged and therefore he ought to have quantified the figure and not plead general damages. He further submitted that since the onus was on the Respondent to particularize the damaged items and therefore plead special damages, the Respondent was at best entitled to a sum of Kshs. 10,000. 00 only. The Appellant relied on his written submissions at trial urging this court to allow the Appeal.

8. On his part, the Respondent relied on his written submissions dated 10/01/2023 and filed on 12/01/2023. He urged this court to uphold the trial court’s findings for the Appellant’s Appeal lacked any foundational basis in fact or in law. He submitted that the award of the trial court was not only commensurate with the damage occasioned but consistent with precedent setting awards.

9. He submitted that it was not controverted that an accident occurred and that it was occasioned by the Appellant. Further, the Respondent submitted that the resultant damage was proved from the unchallenged valuation report. In that vein, he submitted that the award of general damages was proper and lawful. He therefore prayed that the Appeal be dismissed with costs.

Analysis 10. This being a first Appeal, this Court’s role is to reconsider the entire evidence, evaluate it a fresh and draw its own independent conclusion but bearing in mind that this Court never saw nor heard the witnesses and should make due allowance in this respect (see Selle and another v Associated Motor Boat Co. Ltd & others (1968) E.A 123. The brief facts of the case as follows:-

11. Peter Obure Nyakora (PW1) testified at trial that at all material times to the suit, he made coffins and furniture for a living. He produced his authority letter from the County Government dated 26/07/2017 (PExh.1) allocating him a temporary structure and a letter from Gusii County Council dated 22/06/1989 (PExh.2) licensing him to carry out business in carpentry business at Nyansingo Market. The said letter also exempted him from buying trade license since he is disabled.

12. He testified that on 23/06/2019 he received a distress call from his nephew Mokaya that a vehicle had destroyed his workshop including furniture therein. PW1 rushed to the scene where he found the suit motor vehicle registration number KCQ 137Z rammed into his workshop. He discovered that several materials purchased had been destroyed. He reported the incident at Ogembo Police Station where he was furnished with a Police Abstract (PExh.5).

13. He then conducted a search and obtained a certificate ( PExh. 4 (a)) showing that the suit vehicle belonged to the Appellant. He paid Kshs. 550/= for the search and obtained a receipt ( PExh. 4 (b)) .

14. The Respondent produced receipts for timber, iron sheet, nails and boards totalling Kshs. 155,994. 00 (PExh.8a) and (PExh.8b). He further produced a proforma invoice quotation for a jigsaw machine for Kshs. 249,000/= (PExh.3). He approached a valuer to assess loss. He obtained a valuation report ( PExh.6) and paid Kshs. 10,000. 00 and was issued with receipts (PExh.7a) and PExh.7b) for it. He then wrote a demand letter to the Appellant dated 25/7/2019 (PExh.9).

15. According to PC Boniface Ochiengo (PW2), a police officer from Ogembo Police Station, the Appellant’s suit vehicle was in a self-involving accident. That as a result of the accident, twenty (20) coffins, two (2) machine compressors, fifty-six (56) pieces of timber and the building were damaged.

16. The last witness was the valuer, Paul Auma Dominic (PW3) who visited the scene on 4/7/2017 and prepared the valuation report. He explained that mabati workshop, coffins, plaining machine, compressor and electricity connection were destroyed while the Respondent’s jigsaw machine, timber and router machine were stolen. He annexed pictures of the destroyed goods before and after the accident. He estimated that the value of the damaged property was Kshs. 1,023, 000/= inclusive of the disturbance allowance. He told the court that other than the Kshs. 10,000/= he was paid for the report, he was also paid Kshs. 15, 000/= every time he attended court (PExh. 10 (a) and (b)).

17. The Appellant (DW1) was the sole witness to his case. He admitted that his suit vehicle was involved in an accident on 24/4/2019. According to DW1, the vehicle, driven by one Peter Maina, hit the pavement and water sewer causing it to fall. He was informed of the accident wherein he proceeded to the accident scene. According to DW1, only the phasal board was destroyed.

18. Finally, he maintained that the Respondent failed to establish that indeed the business was his. He maintained that the Respondent had not remitted taxes in respect to his business and had not adduced his business permit and therefore failed to prove that he was a businessman as alleged.

Determination 19. From evidence and the submissions by the parties herein, the issues for determination are on liability and damages. On liability, it is not gainsaid that an accident occurred on 23/4/2019 involving the Appellant’s motor vehicle registration number KCQ 137Z Isuzu. It is also not denied that as a result of the accident, the Appellant’s authorized driver rammed into a building. Indeed, the Appellant does not dispute that the accident was self-involving, having destroyed a phaser board. PW2 similarly confirmed that the accident was self-involving. In the circumstances , the trial court’s assessment on liability at 100% is upheld.

20. On quantum, the Appellant’s position is that the Respondent ought to have first established ownership of the goods and then sought special damages and not general damages but the Respondent failed to prove his case.

21. Regarding ownership, this Court notes that the Respondent produced a copy of his Identity Card (PExh.2). He also established that the he was allocated a temporary structure at Gucha street in terms of the letter from the County Government of Kisii ( PExh.1). He was thus authorized to set up a structure in accordance with the County’s standards. Further, he was exempted from buying trading licence as he was disabled.

22. The Police abstract (PExh. 3) shows the items destroyed through the accident and so does the valuation report (PExh. 6). Coupled with the evidence of PW2 and PW3 and in the absence of any evidence to the contrary, this Court finds that it was the Respondent’s business that suffered damage as a result of the accident occasioned by the Appellant.

23. The Respondent quantified the damages based on the valuation report and the trial magistrate then assessed the general damages based on the figures captured in the assessment report as follows:-“I will go straight to page 5 of the valuation report and will tax off some of the items as follows. I will remove:-5 - router machine as it was not seen by valuer8- jigsaw machine9 – 120 pieces of timber10- Electricity reconnection.I will also put in mind that some of these items were not completely destroyed and the plaintiff could salvage from some of the items and even repair the machines . Amount asked by plaintiff is on the higher side’.90,000 + 85,000+ 93,750 + 72,250 = 791,000/=Special damages pleaded 10,000 .Liability 100%= 801, 000/=The plaintiff is also awarded costs and interest of the suit from the date of judgment . This is based on the fact that the lives were lost and both parties got losses.”

24. It is apparent that the trial court fused general and special damages yet these are two different types of awards based on different principles. In regard to special damages, the Court of Appeal in Hahn v Singh[1985] eKLR, held:-“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and cannot be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

25. On the other hand, and in regard to general damages, the Court of Appeal in Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment) held that:“General damages are given for losses that the law will presume are the natural and probable consequence of a wrong, and may be given for a loss that is incapable of precise estimation, such as pain and suffering or loss of reputation.”

26. In this case, the Respondent did not plead loss of life and there was no counterclaim that lives were lost and both parties got losses. Reference by the trial magistrate to loss of lives as a basis to award general damages was therefore erroneous despite the Respondent’s bold prayer for judgment against the Appellant for general damages.

27. The Respondent’s claim was on negligence by the Appellant in that the Appellant permitted the vehicle to “lose control and knock a building and as a result caused extensive damage to the Plaintiff’s properties and the Plaintiff incurred loss and damage.” The Respondent went ahead to particularise the negligence. He further gave particulars of damage to plaintiff’s property as:-1. Damage to the mabati workshop 640sq .feet.2. Danage to 25 coffins.3. Danage to plaining machine.4. Damage to router machine.5. Damage to compressor.6. Damage to the jagsaw machine.7. Electricity charges.

28. Further, he pleaded particulars of special damages as Valuation report…...Kshs. 10,000/=. Again, he pleaded in paragraph 5 that he had lost business and suffered significantly as a result of the accident.

29. From the Plaint, it is not in doubt that the Respondent was pleading a material damage and not general damages. Loss of business is also a special damage claim which has to be specifically pleaded and proved before they can be awarded by the court and that is settled law.

30. Though this Court notes from page 5 of the valuation report that the cost of the items was indicated as against each item and the total damage was estimated by the Valuer at Kshs. 1,023, 000/=, it is not clear how some of these figures were arrived at and what they meant.

31. According to the valuation report, the value for these items were :- Kshs. 21,250 for router; Kshs. 11, 900 for jigsaw machine; Kshs. 33,000/= for 120 pieces of timber and Kshs. 32,000/= electricity connection. Against that figure, the trial magistrate disregarded router machine, jigsaw machine, 120 pieces of timber and Electricity reconnection. This court finds no reason to interfere with that decision as it is based on evidence. However, it is not clear how the trial magistrate arrived at the figures 90,000 + 85,000+ 93,750 + 72,250 = 791,000/= and it is not shown what they stand. If it is money, the currency should be indicated so as to be understood.

32. From the pleadings and evidence adduced, it is ascertained that the Respondent suffered quantifiable special damages. He produced receipts to demonstrate the loss suffered . It is not clear why the Respondent who was duly represented failed specifically mention the said special damages reflected in those receipts and only focussed on Kshs. 10,000/= for the valuer’s report. This Court therefore treats what was referred to as general damages as an error in principle. That award should have been in form of special damages and not general damages.

33. The question one would ask himself is whether that omission in the prayers for special damages would be considered fatal in the circumstances. This is a court of justice. To deny the Respondent what was proved by receipts as valued of the destroyed property just because he omitted the same in the prayer would be grave injustice to a litigant.

34. For clarity, the two receipts of Kshs. 15,000/= each for court attendance are not special damages but in the realm of costs incurred and the same is treated as is treated as such.

35. The receipts produced by the Respondent and which were not part of what the trial magistrate disregarded were PExh. 8 (b) for Kshs. 122, 700/= and P Exh.4 (b) for Kshs. 550/= . In addition is the receipts for valuation report being Kshs. 10,000/= which makes a total of Kshs.123,250/= only.

36. From the foregoing, there was no justification for an award of general damages . This appeal is disposed of as follows:1. Liability is upheld.2. Th judgment and decree dated 31st May, 2022 is set aside and substituted with a judgment of this Court for an award of Kshs. 123,250/= as special damages together with costs and interest.3. Each party to bear his own costs of this appeal.

DATED, SIGNED AND DELIVERED AT KISII (VIRTUALLY) THIS 20THDAY OF NOVEMBER , 2023. PATRICIA GICHOHIJUDGEIn the presence of;Ms Opondo for the AppellantsMs Nduhukire for the RespondentAphline Court Assistant