[2022] KEHC 10659 (KLR)

Embu County Government v Olaka (Civil Appeal E049 of 2021) [2022] KEHC 10659 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10659 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E049 of 2021

LM Njuguna, J

June 2, 2022

Between

Embu County Government

Appellant

and

Victor Onyango Olaka

Respondent

(Being an appeal from the judgment and decree of Hon J Ndeng’eri, SRM in Embu CMCC No. E045 of 2021 and delivered on 25. 11. 2021)

Judgment

1. The appellant herein was the defendant in CMCC No. 45 of 2021 wherein the appellant was sued by the respondent vide a plaint dated March 29, 2021, in which it was claimed that the appellant be ordered to unconditionally release motor vehicle registration number KCZ 845W to the respondent, special damages, general damages and the cost of the suit.

2. The appellant sought for dismissal of the suit in its entirety with costs to the defendant. It was the appellant’s case that the respondent was not the owner of the motor vehicle in question since there was no proof of ownership and as such, he lacked the locus to bring the suit and/or sustain this suit against the appellants. It was also the appellant’s case that the respondent had not paid the parking fees for the month of March, 2021 in respect to the suit motor vehicle contrary to the County’s Rules and Regulations. That the impounding of the suit motor vehicle was done on March 8, 2021 and not March 22, 2021as had been alleged by the respondent. It was also stated that the respondent had not completed the payment process to enable him be issued with a parking sticker to allow the respondent’s motor vehicle to pick and drop passengers within Embu County.

3. The respondent averred that the cause of action arose on the March 22, 2021when the appellant herein illegally and without any cause, at the post office stage at Embu, impounded the respondent’s motor vehicle and detained it at its yard. That the parking fees for the month was paid for motor vehicles KCZ 845W and KCR 703X to the Embu County Government. The respondent further averred that even in cases of non-payment, the law does not permit the cessation of property but issuance of demand notices to the defaulter. It was stated that the suit motor vehicle does not carry any passengers at Embu and did not carry or drop any passengers at Embu on the material date save that the vehicle made a brief stop to enable a passenger buy a bottle of water but did not carry passengers as alleged.

4. Directions were issued that the appeal be canvased by way of written submissions and wherein all parties complied.

5. The appellant filed its submissions wherein it submitted that the respondent is not the owner of motor vehicle registration number KCZ 845 W Nissan matatu, and thus he lacked the locus standi to institute the suit. Reliance was placed on the cases of Thuranira Karauri v Agnes Nchenche [1995 – 19998] EA 57; Miller v Minister of Pensions[1947] 2 All ER 372 and further on section 108 of the Evidence Act. In reference to section 8 of the Traffic Act, the appellant submitted that the said section could be interpreted to mean that registration of a motor vehicle is not conclusive proof of ownership. Reliance was placed on the cases of Osapil v Kaddy [2001] 1 EALA 187; Securicor Kenya Limited v Kyumba Holdings Limited Civil Appeal No 73 of 2002. In regards to whether the respondent paid the parking fees for the month of March, 2021 before the motor vehicle was impounded, the appellant submitted that PW1 testified that he paid for the county parking fees on March 8, 2021 at 1308 Hrs and that he was not aware of any deadlines set for payment.

6. It was its case that the respondent had testified that on the material day, he was not aboard the said motor vehicle and therefore, he could not testify as to whether the motor vehicle was impounded on the material day or issued with invoice by the appellant’s enforcement officers. The appellant further submitted that the respondent’s witness did contradict given that PW1 testified that he paid for the parking fees on March 8, 2021and adduced m-pesa statements (Pex2) showing that the same was paid on March 8, 2021at 1308 hrs and that the motor vehicle had been impounded by the enforcement officers on March 8, 2021at around midday. That the respondent only made the payments an hour after the vehicle had been impounded and issued with invoice for the same dated March 8, 2021. The appellant further submitted that the respondent admitted that he never had a sticker similar to Dexh 1 to ascertain that the parking fees had been paid for the month of March, 2021. That the respondent’s failure to know when he ought to pay for the parking fees is not supported by the provision ofsection 6 of the Embu County Finance Act 2019. Reliance was placed on the case of Zipporah Muthoni Njagi v Faith Wairimu Gitubu, Kerugoya HCCA No 236 of 2013.

7. On whether the respondent is entitled to an award for loss of user, the appellant submitted that it is trite that the respondent’s claim ought to have been specifically pleaded and strictly proven. That the respondent only adduced daily worksheet from Ungwana Comfort Shuttle produced as Pexh 5 and that, in the absence of any financial statement to prove the same, the respondent thus failed to prove his claim. Reliance was placed inter alia on the cases of David Bagine v Martin Bundi Nairobi COA Civil Appeal No. 238 of 1996; Douglas Odhiambo Apel & another v Telkom (K) Ltd Nairobi COA CA 115 of 2006. In regards to the counterclaim, the appellant pleaded that the respondent owes it an amount of Kshs 12,500 inclusive of parking fees for the month of March, 2021 and impounding fee of Kshs 10,000.

8. The respondent via notice of motion dated March 7, 2022 sought leave to file its submissions which leave was granted by the court. The respondent’s submissions were to the effect that he was the owner of the motor vehicle herein as exhibited by the sale agreement dated September 15, 2020between him and Cosmos Cars Limited. That the sale agreement shows that the motor vehicle was sold on hire purchase terms and the respondent had, at the time of delivery of judgment, completed paying and as such, the respondent was the owner of the aforesaid motor vehicle at the time it was impounded.

9. On whether he had paid the parking fees on the material day, it was submitted that evidence was adduced via mpesa statement showing that the parking fees for the said motor vehicle for month of March, 2021 was paid on March 8, 2021. It was his case that there was no legal requirement that the parking fees be paid by a certain date of the month and, be that as it may, in cases of non-payment, the law does not permit the cessation of property but issuance of demand notices to the defaulter.

10. On whether the suit motor vehicle was picking passengers contrary to the County rules and regulations on the material day; PW1 and PW2 testified that the suit motor vehicle operates as a shuttle between Meru Town and Nairobi City and thus does not drop or pick passengers along the said road and that, on the day the vehicle was impounded, the vehicle had stopped to allow a passenger to buy a bottle of water before the driver could proceed with the journey. That the act of impounding the vehicle herein was unlawful given the said parking fee had already been paid by the respondent and further, the vehicle was not carrying any passengers at Embu Township as alleged. Further that, the respondent being a businessman in the transport industry has lost money from March 22, 2021todate given that the vehicle has never been released to him. That he has suffered losses during the period the motor vehicle has been impounded and he prayed for Kshs 1,880,000 for loss of user as per the daily worksheet of the said vehicle. Reliance was made on the case of Josiah Onyango Okello t/a Cargo Secured Services v Migori County Government & another (2018) eKLR. In the end, he prayed that the appeal be dismissed with costs.

11. I have considered the grounds of appeal together with the rival parties’ submissions and I find that the issue for determination is whether the appeal herein is merited.

12. This being the first appeal, this court is obligated to re-evaluate, re-analyze and reconsider the evidence before it and come up with an independent finding. [See Williamson Diamonds Ltd and another v Brown [1970] EA 1].

13. The appellant’s first ground of appeal is in regards to whether the respondent had the necessary locus standi to institute the primary suit. The appellant proceeded to submit that since the respondent had purchased the vehicle via hire purchase, and had not completed paying the whole amount, then he cannot be said to be the owner of the suit motor vehicle; that therefore, proof of ownership was never discharged. Reliance was placed on the case of Osapil v Kaddy [2000] EALA 187. During the hearing, the trial court noted that the respondent did not produce a copy of record or a log book in his name save for undated sale agreement wherein the first instalment commenced in October, 2020; the evidence of money paid by the respondent to the seller showed that the respondent had actually bought the car through hire purchase and was still in the process of paying the purchase price. In that regard, the same is settled. [See Josiah Onyango Okello t/a Cargo Secured Services v Migori County government &another [2018] eKLR.]

14. On whether the respondent paid the parking fees for the month of March, 2021 on time before the vehicle was impounded, the respondent testified that he paid for the parking fees on March 8, 2021at 1308 Hrs and was not aware of any deadlines for payment. According to the appellant, the respondent had not paid fees for the month of March and hence the impounding of his motor vehicle by the appellant’s enforcement officers. According to DW1, the respondent’s motor vehicle was impounded an hour before he paid for the parking fees, I find that the appellant did not tender any evidence to proof that allegation. On his part, the respondent produced the mpesa transaction which showed that the payment was done at 1308 hours. Having produced that evidence, the evidential burden shifted to the appellant to offer evidence to the contrary. This was not done.

15. It was also DW1’s evidence that before one can pay for the monthly parking fees, one has to collect an invoice from the county office then proceed to the billing office where a bill/invoice is issued and a sticker issued after payment of the parking fees. It remains unclear why the appellant impounded the vehicle in question even after the parking fees had been paid by the respondent. The allegation that the sticker, as a requirement by Embu county Finance Act 2019 ought to have been visibly displayed on the car, did not, in my view, negate the fact that the respondent had paid the requisite parking fee to the appellant. [See Josiah Onyango Okello t/a Cargo Secured Services v Migori County government &another(Supra).

16. On whether the respondent is entitled to an award of loss of user, the respondent submitted that the motor vehicle registration number KCZ 845W was operating as a matatu along the Meru – Nairobi highway and was making Kshs 10,000 per day. The appellant contended that a claim for loss of user must specifically be pleaded and strictly proven and in this case, the figures jotted down in the work sheet did not capture the amount the vehicle was generating and in the absence of any financial statement to prove the same, it follows that the respondent failed to prove his claim for loss of user. Reliance was made on sections 107 and 109 of the Evidence Act and the case of David Bagine v Martin Bundi Nairobi COA Civil Appeal No 283 of 1996.

17. The court of Appeal in Civil Appeal No. 283 of 1996, (David Bagine v 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:-“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.”

18. In this case, the respondent presented before the court the daily worksheet of the suit motor vehicle, the worksheet showed that the vehicle used to make a trip from Meru to Nairobi upon which an amount of Kshs 10,000 net expenses could be realized in a day. The appellant submitted that the same were hand written and did not reflect proof as envisaged under the law and that a bank statement is more preferable. What I note from the worksheet presented by the respondent is that the same are on official Sacco documents (noted as Ungwana Comfort Daily worksheet), in as much as they are handwritten. Upon perusal of the plaint filed by the respondent at para 7, the respondent pleaded that he seeks for special damages of Kshs 10,000 daily from March 22, 2021till when the suit vehicle would be released.

19. The Court of Appeal also cited with approval the decision of Apaloo, J (as he then was) in Wambua v Patel & another [1986] KLR 336, where the court had found the plaintiff had not kept proper records of what he earned but stated:“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” …. But a victim does not lose his remedy in damages because the quantification is difficult.”

20. In Team for Kenya National Sports Complex & 2 others v Chabari M’Ingaruni, Civil Appeal No. 293 of 1998, a claim for loss of use of a vehicle, a matatu, which had apparently been written off in an accident, was allowed for a period of six months although no supporting documentary proof by way of books of accounts had been produced upon the court being satisfied that the vehicle was used as a means of earning income for the deceased plaintiff.

21. Further in Peter Njuguna Joseph & another v Anna Moraa, Civil Appeal No 23 of 1991, the court of Appeal assessed the loss of user of an immobilized matatu by estimates of the net income and period under which it should have been repaired even though not a single document was produced. (See also Jebrock Sugarcane Growers Co Limited v Jackson Chege Busi, Civil Appeal No 10 of 1991. In this regard and considering the above authorities; I am satisfied that the same was proved.

22. On whether the appellant proved its counterclaim on a balance of probability, given that the appellant herein unlawfully impounded the vehicle in question despite the respondent having paid the parking fees, it is distasteful for the appellant to demand the counterclaim. The appellant cannot benefit from its unlawful acts. [See Miller Vs Minister of Pensions (1947) 2 ALL ER 372].

23. In view of the foregoing, I find that the respondent deserved to be awarded the special damages of Kshs 2,480,000. In addition, the respondent’s motor vehicle KCZ 845W should be released to him forthwith and unconditionally.

24. On the general damages, I find that no credible evidence was led in support of the same and the learned magistrate was right in failing to make an award under that head.

25. In the end, the appeal is hereby dismissed.

26. Each party to bear its own costs of the appeal

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF JUNE, 2022. L. NJUGUNAJUDGE…………………………………………..for the Appellant………………………………………….for the Respondent