[2022] KEHC 15913 (KLR)

City Star Shuttle Limited v Jovan H.Kariuki t/a Moran Auctioneers (Civil Appeal 571 of 2019) [2022] KEHC 15913 (KLR) (Civ) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15913 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 571 of 2019

JK Sergon, J

December 2, 2022

Between

City Star Shuttle Limited

Appellant

and

Jovan H.Kariuki t/a Moran Auctioneers

Respondent

(Being an appeal against the judgment of Hon. A.M Obura (Mrs.) SPM at the Chief Magistrates Court in Nairobi on 20th September 2019 in Civil Suit No.8589/2017)

Judgment

1. At the onset, the appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated November 10, 2017 pursuant to instructions by the firm of Messrs Ngulu Mwangi Advocates, the respondent proclaimed, repossessed and attempted to auction motor vehicle registration number KCC 940E belonging to the appellant, and sought for reliefs against the respondent in the following manner:a.Loss of income from the date of instructions to release to the actual date of release.b.Exemplary and aggravated damages for blatant contempt.c.Costs of the suit together with interest thereon at such rate and for such period of time as this honourable court may deem fit.

2. The appellant pleaded in its plaint thatafter becoming aware of the aforementioned, it enjoined the court through objection proceedings at the Engineer Law Courts to object to the execution proceedings on the grounds stated therein. On or around September 20, 2017 the court made a decision in favor of the objection proceedings, allowing the release of the subject motor vehicle to the appellant.

3. The appellant further pleaded in its plaint that the their advocate, Messrs K. M Mburu Associates, wrote a letter to the respondent demanding release of the said motor vehicle following the blatant refusal of the respondent's agents to release the motor vehicle, on or about September 22, 2017 the instructing attorneys, Messrs Ngulu Mwangi Advocates, explicitly advised the respondent to release the subject motor vehicle to the appellant through his advocates.

4. It was also pleaded by the appellant in its plaint that given that the subject motor vehicle is a public transportation vehicle operating within the Nairobi County and was purchased using a loan facility from Unaitas Sacco Limited, it claims that it has continued to experience income loss. It also claims that it has been severely hurt in its said business and has been put through a great deal of trouble, inconvenience, and expense as a result, incurring loss and damage.

5. The respondent filed his statement of defence denying the entire claim by the appellant and contends that he was not party to the Engineer civil suit No 143 of 2015 and further states that the subject vehicle was stored in a third party storage facility as he had no storage facility of his own.

6. The respondent stated in its defence that the third party charged storage fee on daily basis since the appellant failed to pay the accrued storage charges demanded by the third party, the subject vehicle could not be released.

7. The appellant being aggrieved preferred this appeal and put forward the following grounds:i.That the learned magistrate erred in law and in fact by ignoring, neglecting and declining to consider the pleadings, evidence and submissions filed by the appellant.ii.That the learned magistrate erred in law and in fact by ignoring the respondent’s admission of non-compliance with a valid court order and that the appellant was not liable to payment of any storage charges.iii.That the learned magistrate erred in law and in fact by dismissing the appellant’s prayer for loss of income on the basis that it was not specifically pleaded while evidence presented in court supported the averments in the pleadings and the prayers.iv.That the learned magistrate erred in law and in fact by digressing and creating a different cause of action to suit the respondent’s misleading testimony.v.That the learned magistrate erred in law and in fact by blaming the appellant for not enjoining a stranger, Pangani Auctioneers Centre, while the appellant had expressly testified that it was not aware of this entity in relation to the suit.vi.That the learned magistrate erred in law and in fact by taking into consideration an authority that was not on record to enable the appellant’ right of reply.vii.That the learned magistrate erred in law and in fact by ignoring that the appellant in its re-examination clearly demonstrated the nexus between itself and the statements of accounts it produced in court as evidence of repayment of the loan.viii.That the learned magistrate in reaching the award based her decision on wrong, incomprehensible and irrelevant principles and that the award is wholly erroneous and not well thought-out.ix.That the entire judgment is regrettably convoluted, rushed and falls short of the fundamentals of a proper judgment.

8. The appeal was canvassed by way of written submissions which were filed and exchanged between the parties. The appellant's submissions were filed by K.M Mburu & Associates while those for the respondent were so filed by Kinyanjui, Kirimi & Advocates.

9. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:a.Whether the court erred in its determination on contempt of the court order for release of subject motor vehicle.b.Whether or not the learned magistrate erred in law and fact by dismissing the appellant’s prayer for loss of income on the basis that it was not specifically pleaded.

10. On the first issue, the appellant submitted that, it was expressly clear from the proceedings and the judgment, that the respondent admitted notification of a valid court order having been notified by its principal but deliberately declined to comply.

11. The appellant further submitted that the respondent’s confession of non-compliance with a valid court order falls within the ambit of definition the contempt of lawful court orders as the respondent acted maliciously and ought to be punished. However, the learned magistrate digressed from the issue of contempt despite the admission by assigning the blame to a third party who was not party to this suit.

12. On this the appellant relied on the Court of Appeal at Kisumu, Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates(2013) eKLR, the three judge bench relied on the finding of the English Court of Appeal decision in the case ofJohn v MG Ltd (1996) 1ALL E.R 35 where the court held:“Exemplary damages on the other hand had gone beyond compensation and are meant to punish the defendant who acts out of improper motive e.g. where it is attracted by malice, insistence on a flurry defence of justification or failure to apologize.”

13. It is the appellant’s submission that the prayer for aggravated and exemplary damages footed on the loss incurred as a result of the contempt should have been awarded.

14. On the other hand the respondent submitted that the appellant failed to meet the threshold for civil contempt proceedings and relied on the case of Ochino and another v Okombo and 4 others (1989) eKLR that was cited in the case of Sam Nyamweya & 3 others v Kenya Premier League Limited & 2 others (2015) eKLR where the Court of Appeal R Gachuchi Masime and Kwach JJA held inter alia that:“As a general rule, no order of court requiring a person to do or to abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. 2. The copy of the order served must be endorsed with a notice informing the person on whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.

3. The court will only punish as contempt a breach of injunction if it is satisfied that the terms of the injunction are clear unambiguous.

4. The defendants had proper notice of the terms and the breach of the injunction must be proved beyond reasonable doubt.’

15. The respondent further submitted that in its submissions, the appellant erroneously urged the lower court to find that the respondent had disobeyed court orders; however, the suit did not constitute contempt proceedings, and the appellant did not deem it appropriate to bring any legal action against the respondent. The appellant also did not return to the court in Engineer to bring legal action for contempt.

16. The respondent also relied on the case of Wambui Kiragu (Suing as administrator of the estate of the late Samuel Kiragu Michuki v Governor Nairobi City County & another (2018) eKLR which comprehensively discussed the concept of contempt and buttressed the elements that must be proved to meet the threshold for civil contempt proceedings .The court stated as follows;“The High Court of South Africa [32] held that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the respondent, (iii). Failure by the respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the respondent would normally be inferred, but the respondent could rebut this inference by contrary proof on a balance of probabilities.[33] 38. Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand[34] authoritatively stated:-"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.”

17. The respondent therefore contends that it was incumbent for the appellant to address the above ingredients and in particular, it was necessary to demonstrate the refusal was deliberate.

18. It is the respondent’s submission that the issue was that the said motor vehicle could only be released subject to the payment of storage charges of a third party who had custody of the subject vehicle. The appellant did not dispute that storage charges were payable and that he knew exactly where the vehicle was, so he did not act in violation of the terms of the orders.

19. The respondent contends that the appellant failed to discharge the requisite standard of proof and that the law required him to prove a balance of probabilities but lower than the beyond reasonable doubt standard that indeed the respondent was in contempt of the court orders.

20. The respondent relied on the case of Daniel Odhiambo Okaka v Samuel Udali Mtange & another 2018 eKLR that cited the case of Gatharia K Mutikika v Baharini Farm Ltd [1985] KLR 227 which laid out the principle as follows;Contempt proceedings are quasi-criminal in nature and since the liberty of a person is at stake, the standard of proof is higher than in civil cases. This principle was reiterated in the case of Gatharia K. Mutikika v Baharini Farm Ltd, where it was held as follows:“The courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved... I must be higher than proof on a balance of probabilities, almost, but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. it is not safe to extend it to offence, which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge... Recourse ought not be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. A judge must be careful to see that the cause cannot be mode of dealing with persons brought before him. Necessary though the jurisdiction may be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found... Applying the test that the standard of proof should be consistent with the gravity of the alleged contempt................................. it is competent for the court where a contempt is threatened or has been committed, and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not."

21. The respondent submitted that there is no contention that he wasn't a party to the Engineer court case; the appellant here served as the objector. However, he didn't sue the parties in that suit because the cause of action would have directly affected them since they were responsible for the vehicle's attachment, and since the auctioneer is merely acting as the court's agent, he shouldn't be blamed for carrying out a valid court order.

22. The contempt of court proceedings must be satisfied that the court order alleged to have been disobeyed was clear and unequivocal in its terms. It must not be ambiguous or susceptible to multiple interpretations to a reasonable person. In the case of Ochino & another v Okombo & 4 others(supra) the Court of Appeal quoted the following passage from the case of Mwangi Mang’ondu v Nairobi City Commission, civil appeal No 95 of 1998:“The requirement is important because the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant had proper notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.”

23. The Court of Appeal principles were enunciated (Ochino v Okombosuppra) in Sam Nyamweya & 3 others v Kenya Premiere League & 2 others[2015] eKLR:“As a general rule, no order of court requiring a person to do or to abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question”.The copy of the order served must be endorsed with a notice informing the person on whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.The court will only punish as contempt a breach of injunction if it is satisfied that the terms of the injunction are clear unambiguous.The defendants had proper notice of the terms and the breach of the injunction must be proved beyond reasonable doubt.The proper procedure for bringing the application for contempt”.

24. I am also guided by the holding in the case of Mutitika v Baharini Farm Limited [1985] KLR 229 where the court held that the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities.

25. Since it is undeniable that the respondent was carrying out legal court orders to sell the subject vehicle before the sale was halted by the objection proceedings, I find that he was acting as an agent for a party to the lawsuit rather than being a party to the lawsuit at the Engineer Law Courts.

26. The respondent does admit that he was served the ruling but gave an explanation that the subject vehicle was in custody of a third party who demanded storage charges and the fact that said charges were payable has not been disputed by the appellant .

27. The communication in a letter from Ngulu & Company Advocates to the respondent dated February 2, 2018 in which the respondent is informed of the successful meeting between the said Pangani Auction Centre and the issue of the charges, confirms that the only issue at hand was that neither the appellant nor the respondent were required to pay them.

28. The only issue was that the said motor vehicle could only be released after payment of storage charges of a third party who was in custody of the subject vehicle, and the appellant did not object to the fact that the storage charges were payable and he knew exactly where the vehicle was. Therefore, it is clear that the respondent did not willfully disobey the court orders and did not act in violation of the terms of the orders since he stopped the intended sale.

29. Based on the evidence before me, I am of the view that the appellant failed to discharge the burden of proof required. In Woburn Estate Ltd v Margaret Bashforth (2016) eKLR the Court of Appeal Makhandia, Ouko, M’noti JJA while addressing the issue of service stated:-“We reiterate that contempt proceedings being of quasi –criminal in nature and since a person may lose his right to liberty, each stage and step of the procedure must be scrupulously followed and observed. We bear in mind the often-cited passage attributed to Lord Denning In Re Bramblevale Ltd [1970] 1 CH 128 at page 137 that;‘A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.”

30. On the second issue, the appellant submitted that it pleaded in specific terms a prayer for loss of income and further produced documents i.e way bills, copy of motor vehicle, court ruling and advocate’s instructions in a bundle of documents dated December 5, 2017 demonstrating the actual loss of income. The appellant relied on the case Eldoret civil appeal No 255 of 2013 being an appeal from the decision of the High Court of Kenya at Eldoret ,observed:As the judge correctly pointed out, the rules of procedure require expenses already incurred and paid to be pleaded as special damages. We do not think that requirement is a ‘procedural technicality’ for purposes of article 159(2)(d) of the Constitution. The requirement that special damages should be pleaded serves the useful purpose of warning the other party of the nature or type of claim and evidence that he will be confronted with at the trial. As Bowen L. J said in Ratcliffe v Evans [1892] 2 Q.B 524:" Special damage means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the claimant's claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial."

31. The respondent on the other submittedthat no clear values were noted or rather particularized, the appellant erred in directing the court to rely on the evidence in court, and the alleged special damages totaling Kshs 2,085,000/= should fail because they were never pleaded. Additionally, the appellant erred in instructing the court to rely on the evidence in court when it did not specifically plead for the special damages.

32. The respondent relied on the case of Nancy Wanja Gatabaki v Jacaranda Holding Property Limited & another (2019) eKLR where Hon Justice Kasango stated that:It is trite that parties are bound by their pleadings. This has been reiterated severally in many jurisdiction. The Court of Appeal of Kenya in the case Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others[2014] eKLR considered a decision of the Supreme Court of Nigeria and stated:Adetoun Oladeji (nig) Ltd v Nigeria Breweries Plc S.C 91/2002, Judge Pius Aderemi J.S.C expressed himself, and we would readily agree, as follows;“....it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”Other judges on the case expressed themselves in similar terms, with Judge Christopher Mitchell J.S.C rendering himself thus;“In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

33. The respondent contends that the lower court was correct in dismissing the claim for loss of income since the appellant never pleaded the alleged special damages, let alone proving them. Even if their exhibits had attempted to prove the same, which they did not, they would still be bound by their pleadings.

34. On this argument the respondent relied on the case of Christine Mwigina Akonya v Samuel Kairu Chege (2017) eKLR the court was of the view thatIn regard to special damages the law is quite clear on the head of damages called special damages. Special damages must be both pleaded and proved, before they can be awarded by the court. Suffice it to quote from the decision of our Court of Appeal in Hahn v Singh, civil appeal No 42 of 1983 [1985] KLR 716, at p 717, and 721 where the learned judges of appeal – Kneller, Nyarangi JJA, and Chesoni Ag J.A – 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 may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves 25. Our decisional law is quite clear now that one consequence of this general principle is that a party claiming special damages must demonstrate that they actually made the payments or suffered the specific injury before compensation will be permitted. A natural corollary of this has been that the Courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury.

35. In Cecilia W. Mwangi and another v Ruth W. Mwangi Nyr CA civil appeal No 251 of 1996 [1997] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as general damages but these have also to be proved on a balance of probability.”

36. Similarly, in the case of Douglas Kalafa Ombeva v David Ngama [2013] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically”

37. From the above cited authorities, loss of income and/or future earnings must be pleaded and proved as they are in the nature of special damages. That being the case, I note from the record and more specifically the plaint, that the appellant never pleaded the alleged special damages let alone proving the same. The exhibits that the appellant tried to produce in court tried to but they were still bound by their pleadings.

38. Suffice it to quote from the decision of the Court of Appeal in Hahn v Singh, civil appeal No 42 of 1983 [1985] KLR 716, at p 717, and 721 where the learned judges of appeal - Kneller, Nyarangi JJA, and Chesoni Ag J.A - 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 may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

39. For the foregoing reasons, the appellant’s appeal is without merit. The same is with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ........................J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent