https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12767

Flying Japan Ltd v Ombwende Engineering Works Ltd & another (Civil Appeal E050 of 2025) [2026] KEHC 12767 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12767 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E050 of 2025 RN Nyakundi, J August 6, 2026 Between Flying Japan Limited Appellant and Ombwende Engineering Works Limited 1st Respondent Dominic Odundo 2nd Respondent (Being an appeal from the Judgment of Hon. J.A. Agonda (PM) delivered on 26th August 2025 in Vihiga Chief Magistrate's Court Civil Case No. E144 of 2023) Judgment Introduction 1.This is a first appeal. It is brought under Section 65(1)(a) of the Civil Procedure Act, Cap 21, and Order 42 of the Civil Procedure Rules, 2010. The appeal lies against part only of the judgment of the trial Court delivered on 26th August 2025. 2.The appeal is narrow. The Appellant does not challenge the finding on liability, which was made wholly in its favour. It does not challenge the award of Kshs 159,550/= made under the head of material damage. Its complaint is confined to a single omission: that the trial Court did not award, and indeed did not address at all, the Appellant's pleaded claim for damages for loss of user of its motor vehicle. 3.I record at the outset that although the Memorandum of Appeal was duly served on M/s H.P. Wamalwa & Co. Advocates, who were on record for the Respondents in the Court below, the Respondents have neither entered appearance in this appeal, nor filed a replying affidavit or grounds of opposition, nor filed submissions. The appeal therefore proceeds unopposed. I return to the consequences of that below. 4.I note, for the record and for correction where necessary, two variances in the record. First, the 1st Respondent is described in the Plaint as “Ombwede Engineering Works Ltd” but as “Ombwende Engineering Works Limited” in the Memorandum of Appeal and in the Decree. Second, the witness who testified as PW3 is named “George Mwaura Mbichi” in the Plaint, the verifying affidavit and the witness statement, but is recorded as “John Mwaura Mbichi” in the proceedings and the impugned judgment. Neither variance goes to the substance of the appeal, and I proceed on the footing that the parties and the witness are in each case the same. The Claim Before The Trial Court 5.By a Plaint dated 25th May 2023 and filed on 5th June 2023, the Appellant, as Plaintiff, sued the Respondents for loss and damage arising out of a road traffic accident that occurred on 20th August 2022 at Chavakali along the Kisumu–Kakamega road. The Appellant's public service vehicle registration number KDB 034M, a 14-seater matatu, was lawfully parked at a stage awaiting passengers when the 1st Respondent's motor vehicle registration number KDD 081V, a Mitsubishi Fuso lorry, lost control and rammed into it from the rear. 6.Two heads of claim are material to this appeal. 7.First, at paragraph 7 of the Plaint, the Appellant pleaded particulars of special damages totalling Kshs 159,550/=, comprising a motor vehicle search fee of Kshs 550/=, repair costs of Kshs 153,000/= and an assessment fee of Kshs 6,000/=. 8.Second, and critically for present purposes, at paragraphs 8 and 9 of the Plaint the Appellant pleaded:i.That as a result of the accident and consequent damage it had lost the use of the motor vehicle for a period of fifteen (15) days, the vehicle not being in business during the repair period; and that the vehicle was a public service vehicle plying the Kisumu–Kitale route from which the Appellant earned a daily income of Kshs 6,000/=. 9.In the prayers, the Appellant sought, among other reliefs, “(b) General damages for loss of use”. 10.By their Statement of Defence dated 18th September 2023, filed through M/s Guandaru Thuita & Company Advocates, the Respondents denied liability, pleaded contributory negligence in the alternative, and — at paragraphs 6 and 7 — expressly denied the loss and damage pleaded at paragraphs 7, 8 and 9 of the Plaint, putting the Appellant to strict proof thereof. The claim for loss of user was therefore squarely in issue on the pleadings. The Evidence At The Trial 11.The Appellant called four witnesses. The Respondents called one. 12.PW1, John Mathu, a motor vehicle assessor with Maka Automotive Works and Assessors, testified that he was instructed on 20th August 2022 and assessed motor vehicle KDB 034M while it was detained at Vihiga Police Station. He assessed the cost of repair at Kshs 153,800/=. He produced his assessment report as PExh-10(a) and his fee receipt as PExh-10(b). Materially, he told the Court that the repair would take five (5) days, subject to the availability of parts. That estimate is borne out by the report itself, in which the labor component is computed at Kshs 250 per hour × 8 hours × 5 days = Kshs 10,000/=. 13.PW2, Corporal John Koech of Vihiga Police Station, produced the police abstract (PExh-1) and the NTSA certificate of inspection (PExh-9) and blamed the driver of KDD 081V for the accident. 14.PW3, George Mwaura Mbichi, a Director and Manager of the Appellant, adopted his statement of 25th May 2023 and produced documents PExh-2 to PExh-13. He testified that the vehicle was a 14-seater matatu operating under Western Shuttle Sacco returning about Kshs 6,000/= per day, and that he sought compensation for the fifteen days during which the vehicle was off the road at the garage. He produced the Schedule of Daily Income as PExh-11. 15.Two passages in PW3's evidence are of central importance to this appeal, and I set them out because they were not addressed at all in the Court below. In cross-examination he confirmed the schedule of daily income and confirmed that the vehicle was at the garage for fifteen days. In re-examination, however, he stated that the vehicle was repaired but that he was unable to pay, and that it took fifteen days to pay. The Appellant's own written submissions at the trial put the matter beyond doubt, recording at paragraph 11 that the witness confirmed that although the repairs could have taken fewer days, the vehicle spent fifteen days in the garage, and at paragraph 12 that the Appellant did not have sufficient money to repair the vehicle in a shorter time, the full repair cost having to be paid before the vehicle would be released. 16.PW4, Stanslaus Isendi, the driver, adopted his statement and described the accident. He testified that the vehicle grossed about Kshs 10,000/= per day, of which, after settling expenses, about Kshs 6,000/= was remitted daily to the Appellant company. 17.DW1, Dominic Okoth Odundo, the 2nd Respondent and a Director of the 1st Respondent, conceded in cross-examination that he did not witness the accident and that the police abstract blamed his vehicle. The driver of KDD 081V, one Zakayo Ochieng, was never called, and his belatedly filed statement was expunged by consent on 22nd May 2025. The Impugned Judgment 18.In a judgment delivered on 26th August 2025, the learned trial Magistrate framed three issues for determination:i.Who was to blame for the accident and to what extent;ii.Whether the plaintiff was entitled to the material claim in terms of the special damages pleaded; andiii.Who should bear the costs of the suit. 19.On the first issue, the Court found the Respondents jointly and severally liable at 100%. On the second, it found the special damages proved and entered judgment for Kshs 159,550/= with costs and interest at Court rates. A decree issued on 26th September 2025 for a principal sum of Kshs 159,550/=, interest of Kshs 1,835.90 and a decretal amount of Kshs 161,385.90. 20.Nowhere in the judgment is the claim for loss of user mentioned. It was not framed as an issue. It was not analysed. It was neither allowed nor dismissed. It was simply passed over in silence. 21.I observe in passing that the judgment contains an internal inconsistency, in that it records that the vehicle “was written off” while simultaneously awarding the full cost of its repair. Given the uncontested evidence that the vehicle was repaired and returned to the road, this is plainly a slip. As there is no cross-appeal and the finding operated to the Appellant's benefit, I say no more about it, save to note that the vehicle must be treated throughout as a repaired, not a destroyed, chattel. The Appeal 22.The Memorandum of Appeal dated and filed on 18th September 2025 and therefore well within the thirty days allowed by Section 79G of the Civil Procedure Act raises two grounds which may be compressed into one:i.That the learned Magistrate erred in law and fact in failing to award general damages for loss of user against the weight of unchallenged evidence; andIi.That the findings on loss of user were characterized by misapplication of the law, misapprehension of the facts, consideration of irrelevant matters and wrong exercise of discretion. 23.The Appellant prays that the appeal be allowed, that this Court assess and award general damages for loss of use, and for costs of the appeal and of the trial with interest. 24.Ground 2 is, with respect, inaptly framed. There were no “findings on loss of user” capable of being impugned for misapprehension or wrong exercise of discretion, because no findings were made at all. The true complaint, and the one on which this appeal must stand or fall, is the complaint of omission. The Absence Of A Response, And The Approach Of This Court 25.The Respondents' silence does not entitle the Appellant to judgment as of course. An appeal is not a default proceeding. Where an appeal is unopposed, the Court's duty to satisfy itself on the merits is undiminished; if anything, it is heightened, because the Court is deprived of the assistance of contrary argument. I have therefore examined the record for myself and have taken into account such points as could properly have been advanced on the Respondents' behalf, in particular on the question of quantum, where the Appellant's own evidence discloses real difficulties for its case. 26.As to the standard applicable, this being a first appeal, my duty is to reconsider the evidence, evaluate it myself, and draw my own conclusions, bearing always in mind that I have neither seen nor heard the witnesses and must make due allowance for that disadvantage: Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123; Peters v Sunday Post Ltd [1958] EA 424. Section 78 of the Civil Procedure Act confers on this Court, in the exercise of that jurisdiction, power to determine a case finally, and to take additional evidence or remit as the justice of the case requires. Issues For Determination 27.The issues that fall for determination are:i.Whether the trial Court erred in failing to determine the Appellant's claim for loss of user;ii.If so, whether the claim was properly pleaded, having regard to its characterization as a claim in general damages;iii.What the legal character of a claim for loss of user is, and the standard of proof it attracts;iv.Whether, on the evidence on record, the claim was proved and, if so, in what sum; andv.Whether this Court should assess the damages itself or remit the matter to the trial Court. Issue 1: The Failure To Determine The Claim 28.This issue admits of a short answer, and the answer is that the trial Court did err. 29.Order 21 Rule 4 of the Civil Procedure Rules, 2010 requires that a judgment in a defended suit shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Order 21 rule 5 requires the Court to state its decision on each issue. These provisions are not decorative. They exist to ensure that a litigant knows what has been decided about the claim he brought, and why, and that an appellate Court can see whether the decision was properly reached. A judgment that leaves a pleaded and litigated head of claim wholly unaddressed does not comply with them as in the case of South Nyanza Sugar Co Ltd v Omwando Omwando [2011] eKLR. 30.The claim for loss of user was pleaded at paragraphs 8 and 9 of the Plaint. It was denied at paragraphs 6 and 7 of the Defence. Evidence was led on it by PW3 and PW4, and a documentary exhibit (PExh-11) was produced in support of it. It was cross-examined upon. It was expressly submitted upon by Counsel for the Appellant under a discrete heading, “loss of user”, at paragraphs 29 to 36 of the trial submissions, with a quantified prayer of Kshs 90,000/=. It was, in short, live from first to last. 31.A Court is bound to determine the issues that the parties have joined and litigated before it. A claim that has been pleaded, denied, tried and argued cannot be disposed of by omission. Whether the trial Court would have allowed the claim in whole, in part, or not at all, the Appellant was entitled to a decision and to reasons. It received neither. 32.I am fortified in this conclusion by Section 2 of the Civil Procedure Act, which defines a judgment as the statement given by the judge of the grounds of a decree or order. Where there are no grounds because there is no consideration, there is, to that extent, no judgment at all on that head of claim. It follows that Explanation 5 to Section 7 of the Act under which relief claimed but not expressly granted is deemed refused, cannot save the omission. A deemed refusal is a fiction devised to give finality to a decree; it is not a substitute for the reasoned adjudication that Order 21 requires, and it cannot immunize from appeal a head of claim that the Court never turned its mind to. 33.Ground 1 of the Memorandum of Appeal therefore succeeds in principle. Whether it succeeds in substance depends on what follows. Issue 2: Whether Loss Of User Was Properly Pleaded 34.Before I can assess the claim, I must satisfy myself that it was properly before the trial Court. Two objections might have been taken, and I consider them although they were not argued. 35.The first is that the Appellant prayed for loss of user as general damages, whereas, as I explain below, such a claim sounds in special damages, which must be specifically pleaded. Is the Appellant defeated by its own label? 36.In my judgment it is not. The rule requiring specific pleading is a rule of substance, not of nomenclature. Its purpose is to give the opposing party fair notice of the precise case he must meet, so that he is not ambushed. Here, paragraph 8 of the Plaint pleaded the period (fifteen days) and paragraph 9 pleaded the rate (Kshs 6,000/= per day). Those two particulars together yield a determinate figure by simple arithmetic, and that is precisely the figure of Kshs 90,000/= that the Appellant put to the trial Court in submissions. The Respondents plainly understood the case, because they denied both paragraphs specifically and put the Appellant to strict proof of each. No prejudice whatever arose from the misdescription. To strike out on that footing would be to elevate form over substance, contrary to the overriding objective in Sections 1A and 1B of the Civil Procedure Act and to Article 159(2)(d) of the Constitution. 37.The second possible objection is that prayer (c) in the Plaint, “General damages for the repairs of the motor vehicle”, is misconceived, the cost of repair being quintessentially special damage. That is so, but it is immaterial: the prayer was not pursued at the trial, is not the subject of this appeal, and nothing turns on it. 38.I therefore hold that the claim for loss of user was properly pleaded and properly before the trial Court for determination. Issue 3: The Character Of A Claim For Loss Of User, And The Standard Of Proof 39.There is a divergence in the decided cases as to whether damages for loss of user are general or special damages, and it is necessary to resolve it, because the answer dictates the standard of proof I must apply. 40.One line of authority, relied on by the Appellant below, treats loss of user as general damages provable on a balance of probabilities, with the Courts adopting a liberal approach to quantification. That approach appears in Jackson Mwabili v Peterson Mateli [2020] eKLR, cited with approval in Nyaga v Attorney General (On behalf of the Ministry of Environment, Water and Natural Resources) (Civil Appeal E019 of 2023) [2023] KEHC 26484 (KLR). 41.The other line is that of the Court of Appeal, and it is binding on me. In David Bagine v Martin Bundi, Civil Appeal No. 283 of 1996 [1997] eKLR (Gicheru, Shah and Pall JJA), the Court of Appeal held in terms that damages claimed under the head of loss of user can only be special damages; that such loss is what the Claimant suffers specifically; that it cannot be equated to general damages assessed by the Court “doing the best I can”; and that it must be strictly proved. The Court went further and laid down the governing limitation: damages for loss of user of a chattel are confined, if proved, to a reasonable period, being the period during which the chattel could have been repaired, together with such further period as may reasonably have been required. 42.To like effect is Ryce Motors Limited & another v Elias Muroki, Civil Appeal No. 119 of 1995 [1996] eKLR, where the Court of Appeal held that an owner must take all reasonable steps to have his vehicle back on the road within a reasonable period and must mitigate his damages by having it repaired if it is not a write-off. The Court in that case declined to act on the plaintiff's evidence of daily profits because it consisted of figures jotted on pieces of paper which could not be accepted as proper accounting records. In doing so it corrected the suggestion in Peter Njuguna Joseph & another v Ann Moraa, Civil Appeal No. 23 of 1991, that a Claimant may simply wait to be paid before mitigating. 43.Where decisions of the High Court conflict with decisions of the Court of Appeal, I am bound by the latter. I therefore hold that a claim for loss of user is a claim in the nature of special damages, which must be specifically pleaded and strictly proved, and which is limited to a reasonable period. 44.I add three qualifications, lest that proposition be applied too rigidly. 45.First, strict proof does not mean proof to a mathematical certainty, nor does it mean that only audited accounts will do. Where a Claimant establishes that he has suffered loss, the Court should not deny him a remedy merely because the loss resists precise computation. The passage from Halsbury's Laws of England relied on in Jebrock Sugarcane Growers Co. Ltd v Jackson Chege Busi, Kisumu Civil Appeal No. 10 of 1991, is sound: difficulty of estimation does not relieve a wrongdoer of the duty to pay, and where damage is shown to have been suffered, the Claimant may be given the benefit of every reasonable presumption as to its extent. 46.Second, the Court of Appeal has cautioned against an excessively documentary approach to proof of a material damage claim. In Nkuene Dairy Farmers Co-operative Society Ltd & another v Ngacha Ndeiya [2010] eKLR, Civil Appeal No. 154 of 2005, the Court held that special damages in a material damage claim need not be shown to have been actually incurred, the Claimant being required to show the extent of the damage and what it would cost to restore the item. The same spirit informs Jacob Ayiga Maruja & another v Simeon Obayo, Civil Appeal No. 167 of 2002, where the Court declined to insist that earnings can only be proved by documents. 47.Third, the underlying principle is restitutio in integrum: the injured party is to be restored, so far as money can, to the position he would have occupied had the tort not been committed — no more and no less. That was the principle correctly identified by the trial Court itself, citing Abdi Ali Dere v Firoz Hussein Tundal & 2 others [2013] eKLR and Kenya Industrial Industries Ltd v Lee Enterprises Ltd [2009] KLR 135. It cuts both ways. It entitles the Appellant to compensation for the earnings it truly lost. It does not entitle it to a windfall. Issue 4: Whether The Claim Was Proved, And In What Sum 48.The Appellant claims Kshs 6,000/= per day for 15 days, being Kshs 90,000/=. Two variables must be tested: the period, and the rate. The period 49.The Appellant's own expert, PW1, put the repair period at five working days, subject to the availability of parts, and his report costed the labour on exactly that basis. That evidence was called by the Appellant, was not qualified in re-examination, and I accept it. 50.The Appellant nonetheless claims fifteen days. The explanation for the shortfall comes from the Appellant's own witness and its own advocate. PW3 accepted in cross-examination that the repairs could have been done in fewer days. In re-examination he explained that the delay was because he was unable to pay, and that the garage would not release the vehicle until the full repair cost was met. The trial submissions repeated this candidly. 51.That explanation is fatal to five of the fifteen days claimed. On the authority of Bagine, recoverable loss of user is confined to the reasonable period of repair and such further reasonable period as the circumstances require. On the authority of Ryce Motors, the owner bears a duty to take reasonable steps to return the vehicle to the road. Delay occasioned not by the wrongdoing but by the Claimant's own inability or failure to fund the repair falls outside the reasonable period so defined. 52.I have considered whether the Appellant might answer this by invoking the modern English position in Lagden v O'Connor [2004] 1 AC 1067, in which the House of Lords held that a tortfeasor must take his victim as he finds him, including as to means, departing from Liesbosch Dredger v SS Edison [1933] AC 449. The argument was not advanced, but I would not accede to it on this record in any event. The limitation applied here derives not from a freestanding rule about impecuniosity, but from the binding rule in Bagine confining loss of user to the reasonable period of repair. Moreover, no evidence was led as to the Appellant's financial position, as to what steps it took or could have taken to fund the repair sooner, or as to why a company operating a fleet of public service vehicles — the record shows it had at least two vehicles damaged in this very accident — could not have arranged the work more promptly. A bare assertion of inability to pay, unsupported by evidence, cannot extend the period for which the Respondents must answer. 53.What, then, is the reasonable period? It is not simply the five working days of labour. The vehicle was towed to and detained at Vihiga Police Station. It had to be inspected by the NTSA and released. Parts had to be sourced, as PW1 expressly contemplated. Five working days, spanning a weekend, occupy about seven calendar days in any event. Making a fair and moderate allowance for these matters, and giving the Appellant the benefit of reasonable presumptions, I assess the reasonable period at ten (10) days. The rate 54.The Appellant pleaded a daily income of Kshs 6,000/=. PW4 elaborated that the vehicle grossed Kshs 10,000/= per day and that Kshs 6,000/= was remitted daily to the company after expenses. PExh-11, the Schedule of Daily Income, was produced in support. 55.Two points of principle arise. The first is that the measure of loss of user is the net profit lost, not gross takings. While the vehicle stood idle, the Appellant was not incurring the running costs of operating it — fuel, driver's and conductor's wages, Sacco levies, servicing and the like. To award gross earnings would over-compensate and offend restitutio in integrum. The second is that the burden of establishing the rate lay on the Appellant, and it must be tested against the evidence it chose to adduce. 56.I have examined PExh-11 with care. It comprises handwritten monthly ledgers for KDB 034M recording daily takings, with a monthly total, a deduction for expenses, and a resulting balance. It is not audited, and it is not corroborated by Sacco records, bank statements or tax returns. In Ryce Motors the Court of Appeal declined to act on materials of a broadly similar character. I would not go so far as to reject the schedule outright — it is more systematic than loose jottings, it was produced and spoken to by the maker, and it was not seriously impeached in cross-examination — but it must be weighed for what it actually shows. 57.What it actually shows does not support the pleaded rate. Taking the three legible monthly sheets on the record: Month Total takings Expenses Net balance Days Net per day February 2022 89,500 28,300 61,200 28 ≈ 2,186 April 2022 126,500 42,000 84,500 30 ≈ 2,817 Further month, 2022 87,500 22,500 65,000 30 ≈ 2,167 58.The daily entries themselves range between about Kshs 1,000/= and Kshs 6,000/=, with a number of nil days recorded against notations for service, mechanic and police. The average gross daily figure across these months is approximately Kshs 3,400/=. The average net figure is approximately Kshs 2,400/=. 59.It follows that the Appellant's own exhibit contradicts its pleaded case. A claim of Kshs 6,000/= per day net cannot stand when the records tendered to prove it disclose gross takings averaging little more than half that sum, and a net return of about Kshs 2,400/= per day. PW4's evidence of Kshs 10,000/= per day gross is likewise unsupported by the documents. Where a party's oral evidence and its own documentary exhibit diverge, the documents will ordinarily be preferred, the more so where the documents are contemporaneous business records made without an eye to litigation. 60.This is precisely the exercise the trial Court was obliged to undertake and did not. Had the claim been considered, the tension between PExh-11 and the pleaded rate would necessarily have surfaced. 61.Doing the best I can on the material available, and giving the Appellant the benefit of every reasonable presumption consistent with the evidence, I find the proved net daily loss to be Kshs 3,000/=. I adopt that figure, slightly above the arithmetic average of the exhibit, to reflect that the schedules on the record predate the accident by some months, that operating returns fluctuate, and that a Claimant whose loss is established should not be deprived of a remedy by reason of the imprecision inherent in this kind of computation. The award 62.Loss of user is accordingly assessed at:Kshs 3,000/= per day × 10 days = Kshs 30,000/= 63.I record that this sum is considerably less than the Kshs 90,000/= sought. That outcome follows from the Appellant's own evidence: from its expert's five-day repair estimate, from its manager's admission that the additional delay was of its own making, and from its own income records. The Appellant has succeeded on the point of principle. It has not proved the quantum it claimed. Issue 5: Whether To Assess Or To Remit 64.Section 78 of the Civil Procedure Act empowers this Court to determine a case finally. The alternative is to remit under Section 78(1)(b) for the trial Court to determine the omitted issue. 65.I am satisfied that this Court should assess the damages itself, for four reasons. First, the evidence relevant to loss of user is complete and on the record; no further evidence is required. Second, the assessment turns on documentary material and on admissions, rather than on the credibility of witnesses, so that the disadvantage under which a first appellate Court labours is minimal here. Third, the sum at stake is modest, and to remit would expose parties to further costs and delay out of all proportion to the amount in issue. Fourth, the suit was filed in June 2023 and the accident occurred in August 2022; the overriding objective in Sections 1A and 1B of the Civil Procedure Act, and Article 159(2)(b) of the Constitution, both point firmly against prolonging this litigation further. Interest And Costs 66.Interest: The trial Court awarded interest at Court rates on the decretal sum, and the Decree of 26th September 2025 computes that interest from 26th August 2025. For consistency, and because the sum now awarded is assessed for the first time in this judgment, interest on the loss of user award shall run at Court rates from 26th August 2025, being the date of the judgment of the trial Court, until payment in full. The Appellant's prayer for interest from the date of filing the suit is declined; the loss of user figure was not a liquidated or admitted sum at that date and has required assessment. 67.Costs: Costs follow the event under Section 27 of the Civil Procedure Act. The Appellant has been driven to this Court to obtain an adjudication on a claim that ought to have been determined below, and it has succeeded on that point. That the Respondents chose not to participate does not relieve them of costs. I bear in mind, however, that the Appellant recovers one-third of what it sought, and that the appeal is a modest one. The costs of the appeal are awarded to the Appellant, to be taxed if not agreed, and I certify the appeal as one fit for the ordinary scale. The order for costs made by the trial Court stands undisturbed. Disposition 68.For the reasons given, I make the following orders:a.The appeal is allowed in part.b.The judgment and decree of the Hon. J.A. Agonda (PM) dated 26th August 2025 in Vihiga Chief Magistrate's Court Civil Case No. E144 of 2023 are varied by the addition of an award of Kshs 30,000/= as damages for loss of user.c.For the avoidance of doubt, the findings of the trial Court on liability (100% against the Respondents jointly and severally) and the award of Kshs 159,550/= under the head of material damage are undisturbed, no appeal or cross-appeal having been brought against them.d.The total sum now payable by the Respondents to the Appellant, jointly and severally, is Kshs 189,550/=, together with interest at Court rates from 26th August 2025 until payment in full.e.The Appellant's prayer for damages for loss of user in the sum of Kshs 90,000/= is otherwise declined.f.The Respondents shall bear the costs of this appeal, to be taxed if not agreed.g.The Decree of the trial Court is to be amended accordingly, and a decree of this Court shall issue. 69.Orders accordingly. DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.R. NYAKUNDIJUDGE