[2006] KEHC 2806 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

Civil Appeal 209 of 2003

COUNTY COUNCIL OF NAKURU ………................................……. APPELLANT

VERSUS

JOHN MACHARIA HINGA …………..........................….....……… RESPONDENT

(An appeal from the judgment and Decree of the Honourable Senior Principal Magistrate N. O. ATEYA in Nakuru CMCC No. 842 of 2001 dated 21st November, 2003)

JUDGMENT

By a judgment delivered on 21st November, 2003 the respondent John Macharia Hinga was awarded the sum of Kshs.27,300/- being the value of lost tools, Kshs.795,000/- being the loss of user of trading tools calculated at Kshs.500/- per day for 1,590 days. A total of Kshs.822, 300/- with costs and interest at court rates was awarded against the appellant, the County Council of Nakuru. The appellant being dissatisfied with the above judgment has appealed to this court and raised the following grounds of appeal.

1. THAT the learned Trial Magistrate erred in law and in fact in finding that in the absence of corroborated evidence against the Defendant, the Appellant acted maliciously.

2. THAT the learned Trial Magistrate erred in law and in fact in finding that the Respondent was entitled to loss of use in absence of audit report reflecting the same.

3. THAT the learned Trial Magistrate erred in law and in fact in not finding that the Appellant was not liable to pay for the Respondent’s claim under contracts.

4. THAT the learned Trial Magistrate erred in law and in fact in failing to find that the Respondent did not prove his daily average income.

5. THAT the learned Trial Magistrate erred in law and in fact in considering the Respondent’s quantification thereby awarding an excessive judgment.

6. THAT the learned Trial Magistrate erred in law and in fact as a whole and he never appreciated that the Respondent had not established his case against the Appellant within the balance of probability to the required standards.

7.

During the hearing of this appeal the above grounds were further buttressed and expounded by counsel for the appellant. According to counsel for the appellant there was no specific claim for the loss of use of the machinery confiscated by the appellant.

In this regard several courts of appeal decisions were put forward. I will deal with those authorities in the course of this judgment.

First of all, I wish to examine the statement of claim. The only statement of claim in the respondent’s plaint is contained under paragraph 3 which states:

“The plaintiff’s claim against the defendant is for his trading tools which were confiscated by the defendant on around July, 1998 or a sum of Kshs.27,300/- which is equivalent to their market value of a plough plain number 18, a jack plain and Hand Bres Std particulars of which are within the Defendant’s knowledge”

That is what constitutes the respondent’s statement of claim, there are neither particulars of loss pleaded nor particulars of malice and the respondent’s prayer was;

“An order for the return of the plaintiff’s trading tools and general damages for loss of user of the trading tools from the time they were confiscated till they are refunded.”

The respondent gave evidence in support of his claim and detailed how two officers from the appellant’s offices raided his workshop at Kabatinin Centre in July, 1998. The officers were checking on trade licenses and they found the respondent had no license that is when they decided to confiscate his tools. The respondent made several visits to the County Council offices for 570 days trying to recover his tools without any success. He said the value of the tools was Kshs.27, 300/- which the appellant agreed to pay according to the minute of the Council meeting which was produced as an exhibit. However despite repeated demands by the respondent and his lawyer this money was not paid and according to the respondent he used to earn Kshs.500/- per day and he therefore sought to be paid for 1,590 days at kshs.500/- as lost income.

The appellant did not offer any evidence and thus the court proceeded to grant the orders as above stated. I have carefully reevaluated the evidence in this matter and reconsidered all the material that was presented in the lower court. This being the first appellate court it is my duty to come up with an independent evaluation of both facts and law.

In this regard the issue that cuts across the whole appeal is whether the respondent is entitled to the award of Kshs.795,000/- being loss of user of trading tools. In the case of Waweru vs Ndiya KLR 1985 PAGE 236the Court of Appeal held that:

“Damages for loss of the user of a vehicle can be claimed as special damages and not general damages and the loss suffered should be proved strictly. The respondent in his plaint had claimed the damage as general damages and had set out no particulars of loss.

In the circumstances of the case and especially in regard to the impropriety of the respondent’s claim for damage it would not be just for the appellant to suffer for his outsight.”

There are a lot of similarities between the above case and the present case. As I pointed out in this judgment the respondent did not set out the particulars of loss in his plaint and the issue to determine was whether the learned trial magistrate erred by subjecting the loss of user of the tools for assessment under the heading of general damages when indeed this should have been specifically pleaded and strictly proved.

The respondent produced an order book to show that he used to make about Kshs.500/- per day before these events. Counsel for the appellant argued that there was inadequate material as the respondent did not produce audited accounts, income tax returns, banking statements etc to strictly prove the income of kshs.500/- per day. Another authority that was cited and it is of particular relevance to this case is the case of Hohn vs Singh 1985 KLR. The Court of Appeal similarly dealt with this issue of a claim for special damages and in that decision too emphasis was put on the fact that:

“Special damages claimed must be not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act.”

The above statement is particularly relevant in this case considering the plaint, the statement of claim that did not specify the particulars of loss nor was the loss of income pleaded to as a special damage. I have also been guided by the fact that the degree of proof required depends on the circumstances and the nature of the acts themselves. I have also been inspired by the case of;

Ouma v Nairobi City Council KLR page 297. The passage on the text Clerks and Lind sell on Torts [13th edition] page 165 was quoted as follows;

“If there be special damage, which is attributable to the wrongful act, that special damage must be averred and proved.”

Special damage on the other hand, means, the particular damage [beyond the general damage], which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise of the trial”

In this case the trial court admitted the evidence of the respondent that he was deprived of the income for 1,590 days. This is not withstanding the fact the appellant provided written submissions and cited authorities to the effect that the respondent had a duty to take all reasonable steps to mitigate the loss he sustained consequent upon the wrongful confiscation of his tools. In the case of African Highlands Produce Ltd vs Kisono EA LR 2001 the Court of Appeal held:

“It was the plaintiff’s duty to take all reasonable steps to mitigate the loss he sustained consequent upon the wrongful act in respect of which he sued, and he could not claim as damages any sum which was due to his own neglect. The question of what was reasonable was not a question of law, but of fact in the circumstances of each particular case.”

In this case the respondent did not mitigate his loss by getting alternative tools of trade, or engaging in another occupation to mitigate the loss, the burden of loss should be upon him for his failure to mitigate the loss. Certainly, the trial court erred by basing the loss of earning for the duration of the court case that is a period of over 4 years since the matter was filed in court.

Taking all the circumstances into account the learned magistrate should have taken reasonable time which should not have exceeded six months for the respondent to mitigate his loss. Accordingly, I set aside the decree of the lower court on quantum and loss of income and substitute it with an order that the respondent be entitled to a sum of Kshs.500/- per day for loss of income for a period of 6 months. The respondent shall now be entitled to Kshs.27, 300/- being cost of tools, Kshs.90, 000/- for loss of income and user as well as costs and interests.

It is so ordered.

JUDGMENT READ AND SIGNED ON 24TH MARCH, 2006

M. KOOME

JUDGE