https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9826

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO.E 075 OF 2025** GEORGE RAINI ATUNGA…………………………………APPELLANT VERSUS WILLIAM MONYENYE…........................................... RESPONDENT ***(Being an appeal from the judgment and decree of the Honourable S. N. Abuya, Chief Magistrate, delivered on 17th December, 2024 in Kisii CMCC E 002 of 2021).*** **JUDGMENT** The appellant was the defendant in Kisii Chief Magistrate’s Court Civil Case No. E 002 of 2021 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 22nd November, 2022 involving the respondent’s motor vehicle Registration No. KBY 947 H and the appellant’s motor vehicle Registration No. KCQ 205 U along Kisii-Nyamira Road. In a judgment delivered on 17th December, 2024, the learned trial magistrate found the appellant vicariously liable for the accident caused by the negligence of his driver and awarded the respondent Ksh. 1,930,600/= in special damages comprising cost of repairs and loss of user of his motor vehicle said to have been extensively damaged as a result of its collision with the appellant’s motor vehicle. In a memorandum of appeal dated 15th May, 2025 the appellant is seeking orders to have the trial court’s judgment set aside or varied and for re-assessment of damages for loss of user of the respondent’s vehicle. The appellant is also seeking orders to be awarded costs for the appeal and before the lower court below. The grounds in support of the appeal are as summarized hereunder; 1. That the trial magistrate erred in law and fact by awarding the respondent Kshs. 1,424,000/= for loss of user when the same had not been strictly proved by way of evidence thereby arriving at a wrong decision on assessment of the said damages based on a daily income of Kshs. 4,000/= multiplied by 365 days, 2. That the learned trial magistrate erred in law and fact by failing to adhere to the applicable principles in assessment of awards for loss of user and the need for the respondent to mitigate his losses, and 3. That the learned trial magistrate erred in law and fact by failing to properly analyze the evidence adduced, the test of the said evidence by way of cross-examination and that the trial court failed to give due regard to the appellant’s submissions and authorities cited in support of the appellant’s case. The parties agreed to dispose of the appeal by way of written submissions with the appellant filing submissions dated 13th February, 2026 and the respondent filing submissions dated 19th February, 2026. The appellant submits that no cogent evidence was given regarding the daily income that the respondent was earning and the duration of time when the loss was incurred. The appellant avers that no evidence was adduced that the respondent was operating a duly licensed public service vehicle (PSV) to warrant the award of a daily income of Kshs. 4.000/=. It is submitted for the appellant that neither the respondent’s driver nor conductor was called as a witness to produce records of daily earnings as alleged. The appellant asserts that the respondent’s supposed income is unsubstantiated, unsupported by documentary evidence or credible witness testimony. The appellant has cited the case of ***Samuel Kariuki Nyangoti v Johaan*** ***Distelberger*** (2017) eKLR, where it was held and I quote; ***“ The damages claimed by the appellant were in the nature of pecuniary loss which the law does not presume to be the direct, natural or probable consequence of the accident since it is subject of ascertainment by court through evidence and the application of the law relating to the measure of damages. In personal injury cases, the loss of business profits and loss of future earning capacity are usually in the nature of general damages. The loss of use of a profit-making chattel such as a lorry or matatu through an accident is similarly a claim in general damages. The standard of proof in such claims is on balance of probabilities and the principle of restitution is applied in such cases.”*** The appellant faulted the respondent for failing to produce receipts in prove of Matatu earnings. The appellant avers that the respondent merely stated that he was getting an income of Kshs. 4,000/= monthly from his vehicle without presenting records or calling his driver. Citing some authorities, the appellant submits that awards for loss of user should not exceed a period of six months. The appellant is urging this court to set aside the award for loss of user or at least make an award for a period not exceeding six months. The respondent submits that this court should not interfere with the assessment made by the lower court unless it is demonstrable that the trial court acted in error and made an award which is inordinately high or low as to represent an entirely erroneous estimate or that the trial court proceeded on wrong principles or misapprehended evidence in some material respect. It is averred that the respondent produced PSV certificate of insurance in proof that he was operating a matatu. It is further submitted that the respondent produced matatu business permit or revenue sticker granted by the relevant County Government to prove that he was engaged in the business of a matatu. According to the respondent, the evidence adduced by the respondent as regards his lost income shows that he did not use his matatu from 11th November, 2019 when the accident occurred to 1st November, 2020 when the matatu was repaired. Citing the case of ***Jackson Mwabili v Peterson Mateli*** (2020) eKLR, the respondent urged this court to find that loss of motor vehicle user was pleaded and proved. I can identify only one issue for determination by this court; which is ***whether the trial court properly assessed damages payable to the respondent for loss of user of his motor vehicle after it was grounded because of the traffic accident involving the appellant’s motor vehicle.*** The record shows that the respondent, a motor vehicle assessor and the appellant’s driver testified during the trial. The respondent adopted his written statement dated 1st December, 2020 as his evidence in chief and produced documents in his list of documents. His statement is found at pages 46 and 47 of the record of appeal. Worth noting from his statement, is his averment that he was earning Kshs. 4,000/= daily from his matatu business. On cross-examination, he conceded that he did not have records to prove his daily income. He told the court that he bought the matatu for Kshs. 1,400,000/= from one Gideon Wakiaga. The respondent produced a revenue receipt for Kshs. 2,700/= valid within the month of November 2019. The copy of the certificate of insurance produced is so faint such that the motor vehicle registration number and its period of validity are not clear. Assessment of damages is a matter for the trial court’s discretion. In the case of ***Mariga v Musila*** (1984) KLR 251, it was held; and I quote; ***“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.”*** It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of ***Selle & Another v Associated Motor Boat Co. Ltd*** (1968) EA 123, it was held; and I quote; ***“Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.”*** Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. The above position was reiterated in the case of ***Kemfro Africa Ltd. t/a Meru*** ***Express Services v Lubia & Another*** (1982-88) 1 KLR 727 where it was held, ***“The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.”*** An evaluation of the evidence on record shows that the trial court made a finding that the respondent lost the use of his vehicle for a period of 365 days. Using the formula of income times period, she awarded the respondent Kshs. 1,424,000/=. The appellant is not questioning the award for motor vehicle repairs but the award for loss of user. The respondent told the court that he was operating his matatu as a shuttle plying between Kisii and Nakuru towns under a matatu Savings and Credit Cooperative Society. There must have been records showing how much the society was paying him from the proceeds of his matatu. He did not produce cheques or payment schedules showing the income he was receiving. He also did not produce his bank or Mpesa statements. I agree with the appellant that the respondent just stated a figure, which was adopted by the court as the multiplier to get his income. He did not give a cogent reason why he left his car in a garage for a whole year, he should have mitigated his losses by ensuring that the vehicle was repaired within the shortest time possible and put back into business. Though pleaded, as a special damage as required, the loss of user was not proved at all. A vehicle stated to have been bought at a price of Kshs. 1,400,000/= is said to have earned the respondent Kshs. 1.424, 000/=, more than its value, by lying idle in a garage. This award is inordinately high and excessive by any measure; it would amount to unjust enrichment on the part of the respondent who has already been compensated for the cost of repairs. Even if it were to be believed, that the respondent was earning Kshs. 4,000/= per day, the question is how much of that income went into operating expenses. It is the duty of this court, as the first appellate court, to re-assess the damages under the heading for loss of user. Having found that the respondent failed to proof his income and by extension loss of user, I do reduce the damages for loss of user awarded by the trial court from Kshs. 1,424,000/= to Kshs. 300,000/= (in words, Kenya shillings three hundred thousand only) which I consider to be reasonable in the circumstances. The appeal succeeds to the above extent; I will also award the appellant the costs of the present appeal. ***IT IS HEREBY ORDERED.*** **Judgment read, dated, signed and delivered virtually this 2nd day of July, 2026** **HON. RICHARD K. KOECH** **JUDGE** **In the presence of:** * Ms. Opondo appearing virtually for the Appellant * Mr. Wesonga appearing virtually for the Respondent * Ms. Makali, Court Assistant. Right of appeal within 30 days