[2022] KEHC 9956 (KLR)

Danros Kenya Limited & another v Mabuka (Civil Appeal 90 of 2019) [2022] KEHC 9956 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9956 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 90 of 2019

RN Nyakundi, J

July 13, 2022

Between

Danros Kenya Limited

1st Appellant

Mwang’ombe Mwalugha

2nd Appellant

and

Godfrey Kulubi Mabuka

Respondent

(Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Eldoret in Eldoret CMCC No. 114 of 2018 delivered on the 21st day of June 2019 by the learned Honourable Magistrate C. Obulutsa.)

Judgment

1. What is before this court is an appeal against the judgment of Hon. C. Obulutsa in Eldoret CMCC No. 114 of 2018. The respondent sued the appellants for material damages for an accident that occurred on 21st December 2017 when he was lawfully driving motor vehicle registration number KBP 178L on the Nakuru-Eldoret Road, when at Mlango Nne area the appellant while driving motor vehicle registration number KCG 578N/ZF 3975 occasioned an accident in which the respondent’s vehicle as damaged. The trial court found the appellant 100% liable and awarded special/material damages to the amount of kshs 477,700/-.

2. Being dissatisfied with the decision of the court the appellants instituted the present appeal vide a memorandum of appeal dated 1st July 2019. The appeal is based on the grounds that;

3. The finding on liability was erroneous vis a vis the issues entailed and evidence tendered by the appellants1. The learned trial magistrates’ award on damages was inordinately high, improper, unrealistic and inappropriate under all circumstances of the case.2. The learned trial magistrate erred both in law and fact in basing his finding on irrelevant matters without taking into consideration the evidence of the appellants.3. The learned magistrate erred in law and in fact in failing to appreciate or take into account the appellants submissions or at all.4. The learned trial magistrate erred on all points of fact and law in as far as the award of damages is concerned.

4. It is the appellant’s case that the trial magistrate erred in finding the appellants 100% liable as the case was not supported by evidence nor was it proven on a balance of probabilities. The respondent failed to give the court a clear picture of the scene of the accident. They cited the case ofMorris Njagi & Another v Beatrice Wanjiku Kiura [2019] eKLR in support of their submissions. Further the respondent did not call the investigating officer or any eye witness to testify. They also cited the case of Jarad Ramadhan and Another v Ruth Achieng Auditi [2010] eKLR.

5. The appellant submitted that the trial magistrate failed to take into consideration that PW2, the investigating officer who testified did not produced any sketch map before the trial court and cited the case of Evans Mogire Omwansa v Benard Otieno Omolo & Another [2016] eKLR in support of this submission.

6. The trial court awarded the respondent kshs. 477,700/- as material damage which is exce4ssive considering the fact that the plaintiff/respondent never submitted sufficient proof to prove the amount alleged. They cited the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR 5 in support of their submissions. Further, that special damages should not be awarded as they were not proven.

7. They asked that the appeal be allowed in its entirety.

8. It is the respondent’s case that PW3, a police officer, testified in support of the respondents’ claim. He produced an abstract and as per the police investigation, the 2nd appellant was blamed for the accident. He was issued with a notice of intention to prosecute and released on police cash bail of kshs. 10,000/-. He admitted in his testimony that he hit the respondent’s car from behind. The court made a well-reasoned determination in finding that the appellant was liable.

9. The respondent submitted that in his plaint he enumerated parts of his motor vehicle that were damaged, he relied on the assessment report that was produced as exhibit 5. The appellant never questioned the costs of spare parts as enumerated in the assessment report. The respondent produced two receipts for towing charges for kshs. 21,000 and 50,000, the appellants have omitted the receipt for kshs. 50,000/-. The respondent also cited the case of Nkuene Dairy Farmers Co-Op Society Ltd & another v Ngacha Ndeiya[2010] eKLR in support of their submissions.

Resolution 10. Upon perusal of the pleadings and submissions herein I have identified the following issues for determination;1. Whether the trial court erred in its determination of liability2. Whether damages awarded were excessive

Whether The Trial Court Erred In Its Determination Of Liability 11. In Williamson Diamonds Ltd and another v Brown[1970] EA 1, the court held that:

12. The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion."

13. The Court of Appeal in Mkube v Nyamuro[1983] LLR at 403, held that-

14. A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

15. The essentials of negligence and causation of the accident resulting in an injury must be proved by a claimant on a balance of probabilities. This is what Lord Hoffmann, writing in the Law Quarterly Review ([2005] LQR 592 at 596-597) stated the following: "First, it is usually a condition of liability that not only should one have done, or been responsible for, some act which the law regards as wrongful, but that there should be a prescribed causal connection between that act and damaqe or injury -. for which one is held liable. There may be other conditions as well, such as that the harm should have been foreseeable. But soiiie prescribed causd connection is usually required. Secondly, the question of what should count as a sufficient causal connection is a question of law.. ."

16. What is the test for causation in negligence. Snell v Farell [1990] 2 SCR 311 McLachlin C. J. stated that: "The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and defendant's conduct' is present. It ensures that a defendant will not be held liable for the plaintiffs injuries where they 'may very well be due to factors unconnected to the defendant and not the fault of anyone”

17. The trial court relied on the evidence of PW3 who was called to support the respondent’s claim. The fact that the appellant was not charged for causing the accident does not automatically mean he is not liable in a civil claim. I further note that the issue of liability was determined vide a test suit being CMCC 110 of 2018 which is the subject of the appeal in HCCA 89 of 2019.

18. I have perused the record of appeal and found that the trial court was right in its findings with regard to liability. The standard of proof in civil matters is lower than that in civil matters therefore to apply the reasoning that the absence of a conviction or a charge for the cause of action that led to the civil claim absolves the defendant of liability would be erroneous to say the least.

19. I have perused the judgment of the trial court and I am concerned about the summarised nature of the same. From the judgment one struggles to ascertain the facts of the matter leading up to the decision but taking into consideration that there was a test suit, it follows that the proceedings in the test suit contain the full details leading up to the judgment. The appellant is also well aware of this. The appellant has failed to show that the court acted on wrong principles in arriving at its decision on liability. The issue of liability was properly determined and I find no reasons to disturb the same.

Whether The Damages Awarded Were Excessive 20. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982-1988] KAR 5 the court held;

21. An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.However, it is necessary to also factor the following principles; that it is necessary to find the present correct bearings for the assessment of damages in injury cases as a result of changed conditions of life which have toppled over many of the older concepts. Some awards of damages made not so many years back which were considered reasonable and proper then would be considered munificent: also gone are the days when a reasonably tidy sum of money lasted fairly a long time and it could buy the comforts of life. The pattern of living has changed. Some luxuries have become common necessities and necessities are more expensive to buy than some luxuries in the past. We live in a consumer society.” See also Tahir Sheikh Said Transporters (K) Limited and another v Charles Mugabo, civil appeal number 273 of 1998 (Omolo, Lakha and Owuor, JJA on 20 November 1998), Texcal House Service Station Ltd and another –v- Timo Kalevi Jappinen and another, civil appeal number 134 of 1998(1999) 2 EA 312 (Kwach, Tunoi and Lakha, JJA on 23 April 1999) and Biashara Master Saw Mills Ltd v Ernest Khayera Shipira, civil appeal number 251 of 1997 (Gicheru, Tunoi and Shah, JJA on 24 February 1999)

22. The plaintiff had sought an award for material loss and special damages. The total damages he sought excluding costs were kshs. 417, 500/-. In 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, the Learned Judges of Appeal – Kneller, Nyarangi JJA, and Chesoni Ag. J.A. – held:

23. 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.

24. The trial court relied on the assessment of the Valuers that is at page 36 of the record with regards to the estimated cost to repair the vehicle which was kshs. 384,500/-. He relied on the receipts proving the cost of towing which was kshs. 21,000/-. I have perused the record of appeal and I have seen the receipts proving the total cost of towing as kshs. 71,000/-.

25. I however take issue with the award for loss of user to the extent that loss of user are special damages and it is trite law that special damages must be specifically pleaded and proven. In Linus Fredrick Msaky v Lazaro Thuram Richoro & Another [2016] eKLR, it was held thus: -

26. Starting with loss of user, of kshs. 25,000 it is important to note that the claim was a special damage which must not only be specifically pleaded, but it must be strictly proved by evidence. In this case, the appellant conceded in his evidence that he had no evidence of loss of user and that being the case, I need not delve further other than to find that there was no proof of loss of user hence the claim could not have been awarded as pleaded.”

27. The court of Appeal in Civil Appeal no. 283 of 1996, David Bagine versus Martin Bundi stated that damages which are claimed under the title “loss of user” are special damages which must be proved. The Court stated as follows: -

28. We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can”. These damages as pointed out earlier by us must be strictly proved.”

29. I have perused the record of appeal and the lower court file and I have found receipts totalling to kshs. 6,000/- for taxi services. The plaintiff pleaded the same as kshs. 3,000/-. I am therefore at a loss as to how and why the trial court arrived at kshs. 22,000/- as an award for loss of user which is a special damage. The same was not pleaded in the plaint and was not proven. The court cannot go on a frolic of its own and award figures it has pulled out of thin air.

30. Therefore, I find that the appeal succeeds to the extent that the award for material loss of user was excessive as it was unproven and the same is set aside. Further, the award for taxi costs is awarded at kshs. 3,000/- as that is what was pleaded by the plaintiff. The total award is therefore kshs. 455,500/-. It is apparent from the grounds of appeal the same is partially successful as founded in the synthesis above.Costs will be borne by the respondents.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 13TH DAY OF JULY, 2022. ............................R. NYAKUNDIJUDGE