[2010] KEHC 3275 (KLR)
The court found that the plaintiff had proved his claim for special damages by producing receipts and an assessor's report for the cost of repairs, police abstract, and assessor's attendance fees. Although the plaintiff did not strictly prove the daily earnings for loss of user, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2010] KEHC 3275 (KLR)
- Parties
- Plaintiff: Edward Muriuki Kimathi; Defendant: Karori Munene; Defendant: Francis Maina Kiunge; Defendant: Roy Transporters Limited; Defendant: Henry Mbuya Muriuki; Defendant: James Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3845 of 1994
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Liability Previously Entered Against Defendants
- Outcome
- Judgment for the plaintiff against all defendants for special and general damages as claimed.
- Legal Topics
- Motor Vehicle Accident, Damages Assessment, Loss of User, Proof of Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edward Muriuki Kimathi
Plaintiff
Karori Munene
Defendant
Francis Maina Kiunge
Defendant
Roy Transporters Limited
Defendant
Henry Mbuya Muriuki
Defendant
James Mwangi
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Liability Previously Entered Against Defendants
Legal Issues
- 1 Whether the plaintiff proved his claim for special and general damages arising from a motor vehicle accident.
- 2 Whether the plaintiff is entitled to damages for loss of user without strict proof of daily earnings.
- 3 Whether the defendants are liable for the damages claimed by the plaintiff.
Ratio Decidendi
The court found that the plaintiff had proved his claim for special damages by producing receipts and an assessor's report for the cost of repairs, police abstract, and assessor's attendance fees. Although the plaintiff did not strictly prove the daily earnings for loss of user, the court exercised its discretion to award a global sum for general damages due to the inconvenience suffered during the period the vehicle was under repair. The defendants, having failed to attend court or contest the claim, were found liable. Judgment was entered for the plaintiff for the total sum claimed, with costs and interest at court rates.
Court Disposition
Judgment for the plaintiff against all defendants for special and general damages as claimed.
Orders
- Plaintiff awarded Kshs. 30,000 as general damages for loss of user.
- Plaintiff awarded Kshs. 106,845 as cost of repairs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3845 of 1994
EDWARD MURIUKI KIMATHI................................................ PLAINTIFF
VERSUS
KARORI MUNENE........................................................ 1ST DEFENDANT
FRANCIS MAINA KIUNGE.......................................... 2ND DEFENDANT
ROY TRANSPORTERS LIMITED.............................. 3RD DEFENDANT
HENRY MBUYA MURIUKI........................................... 4TH DEFENDANT
JAMES MWANGI......................................................... 5TH DEFENDANT
JUDGEMENT
On 21/11/2003, Ojwang, J. entered judgment against the defendants on liability. The defendants did not attend Court at the hearing before Ojwang J. Secondly, on 8/12/2005 when this matter was listed before this Court for formal proof, all the defence counsels and their clients did not show up despite service having been effected through post. It is uncontested. The plaintiff filed an affidavit of service by Nyeri Kiagayu Kahunyo, filed in Court on 8/12/2005 confirming service by post.
The plaintiff Edward Muriuki testified as P.W.1 and he averred that his motor vehicle Reg. No. KYW 007 was involved in an accident with motor vehicle KXW 318 and KAA 903C as a result of which his vehicle was damaged. The damage to his vehicle was assessed by PW2, Patrick Wachira Mambo of Top Assessors and Investigations on 29/9/2003. He found the following; damage to the right front corner, and the following were damaged parts: right front bumper, bar, and the parts listed in his report Ex.3 were replaced. The vehicle was re-sprayed. He assessed the damage at Kshs.106,845/=. The repairs were then carried out by Mathira Esso Service Station and Garage and the invoice and receipts are dated 23/9/2003 and 31/10/2003 respectively. The plaintiff obtained an abstract from the Police which cost Kshs.100/= and copy of records of motor vehicle KAA 903C for Kshs.100/=. The plaintiff also said that he incurred a loss of about Kshs.3500/= per day for 3 weeks when the vehicle was under repair and the assessor was paid a total of Kshs.15,000/= for previous attendances while the attendance fee for the hearing date is Kshs.5000/=.
As regards the claim for Kshs.3,500/= per day for 21 days, the plaintiff did not demonstrate what the vehicle earned daily before it was damaged. Since there is no proof of the loss of user of Kshs.3000/= per day, but there is evidence of damage and the fact that the plaintiff must have been inconvenienced when the vehicle underwent repairs, I will award the plaintiff a global sum of Kshs.30,000/= (Thirty Thousand) as general damages for loss of user. Since there is no evidence to the contrary, the plaintiff will be entitled to Kshs.106,845. 05 as costs of repairs, two abstract reports for Kshs.200/=, Kshs.10,000/= for the assessor’s Court attendance on two occasions.
The plaintiff will therefore have judgment as follows:
1. General damages Kshs. 30,000. 00
2. Cost of repairs Kshs.106,845. 00
3. Police abstract Kshs. 200. 00
4. Court attendance – assessor Kshs. 20,000. 00
TOTALKshs.157,045. 00
Plus cost and interest at Court rates.
Delivered and Dated this 18th day of February 2010.
R.V.P. WENDOH
JUDGE
Present:
Ms Masinde holding brief for Mrs. Kahunyo – Plaintiff
Wangai Nyuthe – absent
Muturi: Court Clerk