[2024] KEHC 2215 (KLR)

Dahman v Faham Transporters Limited & another (Civil Appeal E173 of 2022) [2024] KEHC 2215 (KLR) (4 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2215 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E173 of 2022

DAS Majanja, J

March 4, 2024

Between

Mohammed Omar Dahman

Appellant

and

Faham Transporters Limited

1st Respondent

Said Saleh

2nd Respondent

(Being an appeal from the Judgement and Decree of Hon. G. Kiage, PM dated 20. 09. 2022 at the Magistrates Court at Mombasa, in Civil Case No.1779 of 2003))

Judgment

1. On 07. 04. 2003, the Appellant filed suit in the Subordinate Court claiming, inter alia, Kshs. 220,100. 00 from the Respondents being special damages arising out of an accident that occurred on 08. 06. 2002 involving the 1st Respondent’s motor vehicle registration and trailer number KAL *D/ZB 72 driven by the 2nd Respondent and the Appellant’s motor vehicle registration number KAM ***R Nissan Caravan. The Appellant averred that the 1st Respondent’s motor vehicle/trailer was driven negligently and carelessly by the 2nd Respondent that the same hit the rare end of the Appellant’s motor vehicle occasioning it extensive damages. The Appellant claimed that he incurred expenses as a result of the accident and damages which included repair costs of Kshs. 125,000. 00, Assessors fees of Kshs. 5,000. 00, police abstract at Kshs.100. 00 and loss of use of the motor vehicle at Kshs. 3,000. 00 for 30 days (Kshs. 90,000. 00) making the total claim Kshs. 220,100. 00.

2. In their response, the Respondents denied the accident or being liable as alleged or at all. They proffered in the alternative and without prejudice, that it was the Appellant who was negligent and/or substantially contributed to the accident. They thus denied the claim for the loss and special damages sought and prayed that the suit against them be dismissed.

3. At the hearing, the Appellant (PW 3) testified and called its employee, Derrick Nguo Aringa (PW 1), Kairu Mukunga, a Loss Assessor (PW 2) and PC Vincent Ambege, a police officer stationed at Central Police Station (PW 4). The Respondents did not call any witnesses or produce any evidence. In the judgment rendered on 20. 09. 2022, the Subordinate Court found the Respondents 100% jointly and severally liable for the accident. On quantum, it found that in support of his claim, the Appellant presented a vehicle assessment report by Auto Decade Assessors dated 11. 06. 2002 and an accompanying receipt of Kshs. 5,000. 00. That in support of the repair costs, the Appellant filed two invoices for Kshs. 125,000. 00 which were marked for identification but never produced in evidence and also no receipts were presented for the repair costs. It further found that the Appellant did not present any documentation in support for the claim for loss of use and the cost of the police abstract.

4. The Subordinate Court therefore held that from the documentation presented, the Appellant had only proved Kshs. 5,000. 00 claimed in respect of the assessor’s fees which is what was awarded. It dismissed the other claims on the ground that they were not supported by evidence. It is this decision that now forms the subject of the present appeal by the Appellant as grounded in his Memorandum of Appeal dated 08. 08. 2023.

5. In determining this appeal, I am aware that the court is exercising the jurisdiction of a first appellate court and therefore has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand (Selle & another v Associated Motor Boat Co. Ltd.& others (1968) EA 123).

6. The Appellant is aggrieved by the Subordinate Court’s decision that he only proved the claim of Kshs. 5,000. 00 for the Assessor’s fees but failed to prove the other claims. The sums pleaded by the Appellant were in the nature of special damages. The Court of Appeal in Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Company Ltd [2004] eKLR held that a claim for special damages should not only be pleaded with particularity but the same should be strictly proved (see also Hahn v Singh [1985] KLR 716, Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd NRB CA Civil Appeal No. 154 of 1992 (UR)).

7. On repair costs of Kshs. 125,000. 00, PW 2 testified that he found this sum to be what was needed for the repairs and was an estimated cost for the damages. In his testimony, the Appellant stated that he was issued with a quotation/invoice by PW 2 for the costs of the repair. The Appellant admitted that he had no evidence to show that he had expended this sum as repair costs and he had no receipt for any payments made for any such repairs as alleged. It has been held that an invoice or quotation is not proof of payment and that special damages may be proved by producing actual receipts or invoices endorsed with the word “Paid” (see Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR and Guardian Coach Ltd & another v Kiptoo (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR) (26 May 2022) (Judgment)). In the absence of any proof of payment, this claim for repair costs was therefore not proved hence the trial magistrate did not err in coming to the conclusion that this amount was not proved.

8. On the claim of loss of use of his motor vehicle, the Appellant claimed a loss of Kshs. 3,000. 00 per day for 30 days and thus sought Kshs. 90,000. 00. PW 1 testified that he used receive Kshs. 3,000. 00 as profit per day or Kshs. 2,800. 00 on the lower side. The issue in this case is what constitutes proof of the claim for loss of use. In Ryce Motors Limited and Another v Elias Muroki [1996] eKLR, the Court of Appeal remarked as follows in relation to the claim for special damages that had been allowed by the trial court:The learned judge had before him by way of plaintiff’s evidence Exhibits 2 and 3 as proof of alleged loss of profits. Exhibit 2 consisted of figures jotted down on pieces of papers showing dates and figures. Nothing about these pieces of paper can be accepted as correct accounting practice to enable the court to say these are the accounts upon which the court can act.These pieces of paper do not show at all if the alleged accounts were in respect of ‘the matatu’, or the two matatus owned by the plaintiff, or included the business of the plaintiff as a shop-keeper. The said pieces of paper in our view, do not go to prove special damages. There are umpteen authorities of this court to say that special damages must not only be specifically pleaded but must be strictly proved. Such authorities are now legion. The plaintiff simply gave evidence to the effect that his matatu was bringing him income of Shs. 4500/= per day. He did not support such claim by any acceptable evidence. There was absolutely no basis on which the learned judge could have awarded the sum of Kshs. 2,830,500/= for special damages and we set aside the award in its entirety.

9. I do not understand the Ryce Motor Case (Supra) as deciding that in each case a plaintiff must produce books of account certified by an accountant in order to establish special damages. The evidence and therefore proof must depend on the circumstances of the case. The Court of Appeal in Nkuene Dairy Farmers Cooperative Society Ltd & Another v Ngacha Ndeiya [2010] eKLR adopted the dictum of Bowen, LJ in Ratcliffe v Evans [1892] 2QB 524 where he held that:The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.

10. The same principle was explained in Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR as follows:(17)In Wambua v Patel & Another [1986] KLR 336, the High Court (Apaloo, J. as he then was), was faced with the problem of quantification of loss of earnings of a cattle trader who had been severely injured in a road traffic accident. Although the court in that case found that the evidence of the plaintiff’s earnings to be very poor and that he had kept no books of account nor business books and had never paid any tax, the court said at p.346 para 25:“Nevertheless, I am satisfied that he was in the cattle trade and earned his livelihood from that business. A wrong doer must take his victim as he finds him. The defendants ought not to be heard to say the plaintiff should be denied his earnings because he did not develop more sophisticated business method” ….and added at p. 347 para 1 “But a victim does not lose his remedy in damages because the quantification is difficult.”

11. In as much as the Appellant did not provide any documentary evidence to support its case, it was not disputed that the Appellant’s motor vehicle was a commercial vehicle and that the accident occurred in June 2002. PW 2’s testimony that the Appellant used to net a profit of Kshs. 3,000. 00 per day was also not controverted. Taking into account the vagaries of business, I would award Kshs. 2,000. 00 per day for 30 days making a total of Kshs. 60,000. 00.

12. On the claim for Kshs.100. 00 for the police abstract, whereas the Appellant did not produce any receipt as proof of payment, I will take judicial notice, as the Court of Appeal did in Eldoret Express Co. Ltd & Enock Kiptoo v Silvance Ojwang Odero [2016] eKLR that at the time of the accident, a police abstract was not issued free of charge and as such, allow this claim.

13. My net findings are that the Appellant’s appeal for the claims of loss of user to the extent of Kshs. 60,000. 00 and the Police abstract for the sum of Kshs.100. 00 succeeds.

14. To this end, I find that the Appellant’s appeal partly succeeds to the extent that the judgment of the Subordinate Court dated 20. 09. 2022 is varied on the following terms:a. The Appellant is awarded Kshs. 60,000. 00 for loss of use and Kshs. 100. 00 for the police abstract.b. The amount in (a) above shall attract interest at court rates from the date of filing suit.c. The Appellant is awarded costs of this appeal assessed at Kshs. 15,000. 00.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED andDELIVERED atMOMBASA this__4th___day of MARCH 2024. OLGA SEWEJUDGEHCCA NO. E064 OF 2021 JUDGMENT Page 3