[2007] KEHC 1991 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Civil Case 934 of 2001

JOHN GODANA GUYO………………………………………………….PLAINTIFF

VERSUS

FOOD FOR THE HUNGRY INTERNATIONAL………..…………..DEFENDANT

JUDGEMENT

The facts in this matter are not disputed. The Defendant herein is an International

Non-Governmental Organization. It caters for the relief of refugees and other displaced

persons. It has its principal offices in Nairobi. It has a field office in Moyale from which

it distributes its aid to refugees and displaced persons in that part of Kenya. The

Organization has in its fleet a variety of motor vehicles, at the time material to this case,

the Defendant had a tractor model Massey Ferguson registration No. KSR 239 which

was not in very good condition, but was both functional and repairable. In this condition,

the Organization sold the tractor to the Plaintiff for Ksh 69,000/= under conditions which

resembled competitive bidding. The Plaintiff being a native and resident of Moyale

Town repaired and left the tractor under the agency of his friend a Mr. Omar to operate it

in Marsabit Town.

This Mr. Jeremiah did not come to give evidence on behalf of the Plaintiff but it

was clear from the evidence of the Plaintiff that the tractor, although it had been bought

by the Plaintiff continued to be used by the Defendant Organization on hire from the

Plaintiff’s friend. This did not go well with some elements of the management of the

Defendant, who in effect and for lack of a better expression confiscated the Plaintiff’s

tractor and locked it up in the Defendant’s store house or yard where it had always been

parked even before it was sold to the Plaintiff . The Plaintiff made every effort to get his

tractor released and formally transferred to him without much success. He was shunted

by the Defendant’s management from Moyale and Marsabit to Nairobi but still did not

succeed to have his tractor released to him. Having lost all form of persuasion and

dialogue with the Defendant, the Plaintiff came to court.

By an Amended Plaint dated 5. 07. 1996 and filed on 5. 0..7. 1996 the Plaintiff

claims:-

(i) The Defendant do release an executed transfer deed of the motor vehicle (

read tractor registration Number KSR 239) and in default the Deputy

Registrar to execute the same;

(ii) Damages for wrongful seizure of the Plaintiff’s tractor

(iii) Restore the tractor registration number KSR 239 to the plaintiff,

(iv) Costs of the suit,

(v) Any other relief this court may deem necessary to grant,

As it is succinctly summarized in both the Plaintiff’s written submissions dated 20. 7.2005

and filed on 21. 07. 2005, and the Defendant’s Advocates written submissions dated and

filed on 20. 5.04 the Plaintiff abandoned prayers number (i) & (iii) of the Amended Plaint

on the ground that he was no longer interested in being put in possession and ownership

of the suit tractor as its condition had irreparably deteroriated and he would rather press

on with his prayer for damages in lieu of those abandoned prayers. I allowed this

application and the only relief under consideration in this suit and this judgment

therefore is damages for alleged wrongful seizure of the suit tractor.

As stated at the opening of this judgment the facts of this case were not disputed.

The Defendant sold the tractor to the Plaintiff. The Defendant seized the tractor and

locked it up in its yard on the pretext that it was sold to the Plaintiff without following

the laid down procedures laid by the Organization. The Plaintiff’s attempts to recover the

tractor were shunned by the Defendant’s management. There was no evidence that the

tractor was sold to the Defendant un-procedurally or without following the Defendant’s

regulations. On the contrary it was the evidence of DW1 Mr. Samuel Labarakwe a Field

Supervisor with the Defendants Child Development Programme that the Plaintiff bought

the suit tractor in or about 1992 for Kshs 69,000/= and it was sold to the Plaintiff after the

tractor had an accident in which the tractor’s oil samp was damaged and the Defendants

management decided to sell it.

This witness testified that some repairs were carried out on the tractor both after

sale and after repossession of the tractor. He could not explain why the tractor was still

in the possession of the Defendant. If it was left to him (DW1), he would release the

tractor to the Plaintiff in its current condition rather that pay any damages.

The issue here is, the Plaintiff having abandoned any claim to the tractor as it is

currently unrepayable what damages, if any, are payable to the Plaintiff.

DW1 acknowledged that the tractor was sold after an accident and damage to its

oil samp which is a major component in any moving or mechanical equipment such as a

tractor. To be brought back to use, it must have been put to repair, and at a cost. The

Plaintiff herein produced an original receipt for the purchase of the motor tractor issued

by Defendant the receipt is No. 2297 issued on 2. 6.1993 for the sum of Kshs 69,000/=

There was no evidence by either the Plaintiff or the Defendant to show when the

Plaintiff took delivery of the tractor. The duplicate Certificate of Insurance No. 42976

issued on 12. 9.92 was to expire on 8. 8.1993 It is presumed that the insurance cover was

made by the Defendants and that having paid for the tractor on 2. 06. 1993 the Plaintiff

took delivery of the tractor immediately after payment thereof. Between 4. 9.1993 to

18. 4.1994, the Plaintiff expended Ksh 50,400/= over repairs to the tractor. These repairs,

in my view added to the value of the tractor. The Plaintiff produced receipts for purchase

of diesel for the running of the tractor before it was seized

by the Defendant from him. These receipts amounting to Kshs 6270/= in my calculation

only show the running expenses of the tractor. They do not show the earnings from the

tractor. The Plaintiff in his evidence gave various estimates of between Kshs 120,000 -

Kshs 150,000/= as his earnings per month. He did not however submit any proof in his

evidence to show or support this claim. Even if he had done so, there was no pleading or

prayer in his Plaint to support this claim. In the result therefore this leg of the Plaintiffs

claim must fail. I so find.

This leaves therefore only leg of the Plaintiff’s claim that is general damages, for

loss of his tractor.

Although the Defendant’s sole witness, Samuel Labarakwe told the court that the

Defendant was today willing to surrender the tractor back to the Plaintiff he did not

produce any duly executed transfer by the Defendant transferring the tractor to the

Plaintiff. Any order that the Defendant do execute the transfer in favour of the Plaintiff

nearly over twelve 12 years after the event would merely be to subject the Plaintiff to the

same hardships which he has endured for the said period.

Besides, the Plaintiff abandoned and does not wish to have, the tractor anymore.

In law, the seizure of the tractor by the Defendant after it was paid for in full and

receipt of the purchase price issued and further failure to execute the transfer of the

tractor to the Plaintiff was not only high handed but it was also a flagrant breach of

contract of sale between the Plaintiff and the Defendant.

If the claim had been framed in a more robust manner, it would in my view, have

entitled the Plaintiff to an award of punitive and exemplary damages. Alas there was

however no such plea, and thus must leave the Plaintiff only one relief, an award of

general damages fro breach of contracts. In this category, the damages to which the

Plaintiff would in my view be entitled to, are firstly, the restitution of the purchase price,

and cost of repairs of the tractor which is now no more than a spell of equipment hinged

together with rusting metal and secondly, a fair portion of the earnings which he would

have earned since the illegal seizure and detention of his tractor by the Defendant. The

Defendant cannot be allowed by the Court to take both the purchase price, the benefit of

repairs and now keep the tractor also.

On the question of lost earnings, as I indicated in the earlier part of this judgment,

the Plaintiff claimed in his evidence in Chief, earnings of Kshs 223,200/= per month on

the basis of weekly earnings from the Defendant and an average nett earnings of between

Kshs 120,000/= to kshs 150,000 p.m. The defendant was one established customer of the

Plaintiff, but the Defendant had also acquired its own new tractor that source of custom

would therefore dry up from time to time. A more sober figure of Kshs 55,000/= per

month would most probably relflect the probable gross earnings per month by the

Plaintiff.

The Plaintiff’s tractor was repossessed in December 1994. The Plaintiff claimed

loss of earnings from January 1995, although he filed suit on 22. 09. 1995. The Plaintiff

inhis evidence also testified that he spent an average of Kshs 25,000/= p.m. for purchase

of diesel at the rate of 40 litres of diesel per week @ shs 30/= per litre.

So, if the Plaintiff had been allowed to retain his tractor, it would have earned him

in the ordinary course of events, the sum of Kshs 55,000/= on average for a period of

127 months from 1. 01. 1995 to 30. 07. 2005 thus making a gross sum of Kshs 6,985,000/=

At the same time the Plaintiff would have continued purchasing diesel for

operating the tractor at the said average rate of Kshs 25,000/= p.m. for the said period of

127 months, thus spending at least Kshs 3,175. 000/= on average over that period .

Further the Plaintiff would have spent funds on repair of the aging tractor at the rate of at

least one third of the total earnings over the period. The Plaintiff’s damages in terms of

lost earnings would therefore be Kshs 1,481,666. 00 made up as follows:

Total average Earnings from 1. 01. 1995 to 31. 07. 2005

(127 months @ 55,000/= p.m. shs 6,985. 000

Less Running Expenses for 127 months @ shs 25,000/= p.m. -

Shs 3,175,000 = 3,175,000. 00

(3) Less Maintenance Costs @ 1/3 of gross earnings

Shs 2,328,333. 00

(4) Sub total shs 5,503,333. 00 = 5,503,333. 00

(5) Net Loss to the Plaintiff shs = 1,481,666

Upon the elation of the Plaintiff not to take back the Decript tractor and claim for

the purchase price together with costs of repair, I would award the Plaintiff the cost of the

purchase of the tractor in the sum of Kshs 69,000/= together also with the proven cost of

the repair in the sum of Kshs 54,400/=. The Plaintiff shall therefore have judgment in the

sum of Kshs 1,605,066/= made up as follows

1. Purchase price = Shs 69,000/=

2. Proven Costs of repairs = Shs 54,400

3. Sub Total = Shs 123,4000

4. Lost Earnings as detailed in the judgment = shs 1,481,666. 00

5. Grand Total Loss = Shs 1,605,066

The Plaintiff shall have interest on the said sum at Court rates from the date of

filing suit till payment in full and shall have the costs of this action, if not agreed upon to

be taxed by the Taxing Officer. There shall be a decree accordingly.

Dated and delivered at Nairobi this 28th day of July 2005

ANYARA EMUKULE

JUDGE