[2025] KEHC 4526 (KLR)

Kamau v Munyua (Civil Appeal E092 of 2024) [2025] KEHC 4526 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4526 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal E092 of 2024

FN Muchemi, J

April 3, 2025

Between

Cephas Ngugi Kamau

Appellant

and

Evans Ngugi Munyua

Respondent

(Being an Appeal from the Judgment and Decree of Hon. J. K. Tawai (RM/Adjudicator) delivered on 15th April 2024 in Ruiru Small Claims Court SCCC No. E135 of 2024)

Judgment

Brief facts 1. This appeal arises from the judgment of Ruiru Resident Magistrate/Adjudicator in SCCC No. E135 of 2024 in a claim that arose from a material damage claim whereby the court apportioned liability at the ratio of 80%:20% in favour of the respondent as against the appellant and awarded the respondent special damages at Kshs. 360,000/-.

2. Dissatisfied with the court’s decision, the appellant lodged this appeal citing 7 grounds of appeal summarized as follows:-a.The learned trial magistrate erred in law and in fact in awarding the respondent special damages of Kshs. 450,000/- as the pre-accident value of his vehicle despite the amount having no basis both in his pleadings and the assessment report by Regent Automobile Valuers & Assessors Ltd relied upon by the respondent.b.The learned trial magistrate erred in law and in fact in finding that the respondent’s vehicle was a total loss (write off) despite the assessment report by Regent Automobile Valuers & Assessors Ltd relied upon by the respondent not indicating the estimated cost of repair of the respondent’s vehicle.c.The learned trial magistrate erred in law and in fact in failing to deduct the salvage value from the pre-accident value of the respondent’s vehicle in the amount awarded to the respondent.d.The learned trial magistrate erred in law by completely ignoring the appellant’s submissions and binding authorities relied upon despite the hearing of the case proceeding by way of documents under Section 30 of the Small Claims Court Act and therefore arriving at a decision that ignored the irrefutable evidence, laws and facts prevailing.

3. Parties disposed of the appeal by way of written submissions.

The Appellant’s Submissions 4. The appellant submits that the respondent did not provide a justification for the sum of Kshs. 450,000/- pleaded as special damages. In his Statement of Claim, the respondnt pleads that the repair costs of his vehicle were estimated at Kshs. 150,000/- by the assessor. Furthermore, the assessment report does not indicate the estimated costs of repair of the respondent’s vehicle. The assessment report does not give the open market value for all the parts damages or missing at the time of assessment to justify the estimated cost of repair. The appellant further argues that the assessment report does not indicate the estimated costs of repair of the respondent’s vehicle to justify why it was to be treated as a total loss shifting the burden of proof to him. Additionally, the inconsistency of the pre-accident value of the respondent’s vehicle where in his Statement of Claim and his witness statement claims that the pre-accident value of his vehicle is Kshs. 1 million whereas the assessment report indicates that the pre-accident value is Kshs. 540,000/-.

5. The appellant submits that the trial court misdirected itself by not considering the salvage value of the motor vehicle when awarding the Kshs. 450,000/- noting that the salvage was valued at Kshs. 150,000/- and the same ought to be subtracted from the pre-accident value in order to calculate the actual loss suffered by the respondent. To support his contentions, the appellant relies on the case of Makau& Another vs National Assembly (Civil Appeal E199 of 2022) [2024] KEHC 7815 (KLR) (1 July 2024) (Judgment).

6. The appellant submits that the respondent in his Statement of Claim did not specifically plead for the assessment fees and toing charges therefore the trial court erred in granting the same.

7. The appellant further submits that the trial court misdirected itself by not considering his submissions. The suit proceeded by way of documents on the issue of quantum thus the trial magistrate erred in law by completely ignoring his submissions and binding authorities upon him leading the trial court to arriving at a decision that ignored the irrefutable evidence law and facts prevailing in the matter.

The Respondent’s Submissions. 8. The respondent submits that they recorded a consent on liability whereby he conceded to 20% contribution. The witness statements and bundle of documents filed in court were adopted in evidence and they agreed to file submissions on quantum of damages which the appellant faults. The respondent further submits that forming part of his evidence was an assessment report by Regent Automobile Valuers & Assessors Limited which indicated that the suit motor vehicle was written off as the costs of the repair exceed the salvage value. It was on that basis that the respondent sought for the sum of Kshs. 450,000/- which was the figure arrived at having deducted the pre-accident value and salvage plus costs incurred in towing and assessment fees. Other than denying in his response that the respondent was not entitled to the award of special damages sought, the appellant did not challenge the amount sought either on how the figure was computed or arrived at and/or request to be availed with documentary evidence in support thereof. Instead the appellant who had a chance to challenge, rebut and/or object the amount proposed the suit do proceed by way of documents in light of Section 30 of the Small Claims Court Act.

9. The respondent refers to the case of Patel vs Mose & Another [2022] eKLR and submits that litigation is for the parties and it is upon a party to ventilate their case in a manner it considers would best bring out their case. The parties herein having recorded a consent as to how to proceed with the case which said consent was to the effect that the documents by respective parties be produced without objection, it was incumbent upon the trial court to consider the same and make its findings based on the documents that were on record.

10. The respondent relies on the cases of Price and Another vs Hilder [1996] KLR 95 and Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR and submits that an appellate court will not disturb an award of damages unless it is so inordinately high or low to represent an entirely erroneous estimate. In the instant case, the respondent argues that the trial magistrate strictly confined herself to the documents filed in court by the parties in arriving at her decision. In the judgment, the learned magistrate confirmed that the appellant did not rebut, challenge or controvert the amount he sought. Th the absence thereof, the court cannot be faulted for its decision which was apt and proper. To support his contentions, the respondent relies on the case of Mohammed Salim t/a Choice Butchery vs Nasserpuria Memon Jamat (2013) eKLR and submits that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour.

11. The respondent relies on Section 27 of the Civil Procedure Act and the case of Republic vs Rosemary Wairimu Munene ex parte applicant vs Ihururu Dairy Farmers Co-operative Society Ltd (2014) eKLR and urges the court to award him costs as the successful party.

Issue for determination 12. The main issue for determination is whether the respondent proved his claim for material damage to the required standard.

The Law 13. The Court of Appeal while referring to a second appeal, which is essentially on points of law and thus similar to the duty of this court under Section 38 of the Small Claims Court Act, set out the duty of the second appellate court in the case of Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR as follows:-I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters that they should have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.

14. In distinguishing between matters of law and fact the Court of Appeal stated in Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR as follows:-I have anxiously considered the pleadings, the evidence on record, the judgment of the learned Senior Resident Magistrate and the judgment of the superior court, the grounds of appeal, the submissions of the learned counsel as well as the authorities to which we were referred. First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of retrial and facts must be revisited and analysed a fresh. See Selle and Another vs Associated Motor Boat Company Limited and Others (1968) EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.Whether the respondent proved his claim for material damage to the required standard.

15. The appellant submits that the respondent did not prove his claim for Kshs. 450,000/- as the same was not provided for in his statement of claim or the assessment report he produced in evidence.

16. It is trite law that he who alleges must prove. From the record, parties in the trial court entered a consent on judgment on 26th March 2024 at the ratio of 80%:20% in favour of the respondent as against the appellant. Parties further agreed to proceed with the issue of quantum of damages by way of documentary evidence pursuant to Section 30 of the Small Claims Court Act. In the respondent’s Statement of Claim dated 25th February 2024, he prayed for special damages in the sum of Kshs. 450,000/- to be awarded to him. He further produced an assessment report by Regent Automobile Valuers & Assessors Ltd dated 12th September 2022 which indicated that repairs to restore the suit motor vehicle back to its pre-accident value would be uneconomical and recommended that it be treated as a total loss. The report further indicated that the pre-accident value was Kshs. 540,000/- and the salvage could be realized at Kshs. 150,000/-. The respondent further produced a receipt of Kshs. 12,000/- for towing charges and one from Regent Automobile Valuers and Assessors for Kshs. 6,000/- for assessment fees. The appellant filed a Statement of Response dated 13th March 2024 basically denying that an accident occurred and that the respondent suffered any loss or damages. The appellant further denies that the respondent is entitled to special damages as pleaded.

17. Both the appellant and respondent filed their respective submissions dated 4th March and 4th April 2024 respectively. The appellant in his submissions argued that the respondent did not prove his claim of Kshs. 450,000/- as the assessment report he produced did not indicate the estimated costs of repair and there was a discrepancy in the statement of claim and witness statement by the respondent where he claimed the pre-accident value was Kshs. 1 million whereas the assessment report the pre accident value was Kshs. 540,000/-. The respondent in his submissions argues that in the assessment report, the assessor opined that his motor vehicle at the time of the accident was valued at Kshs. 540,000/-. However, after the accident the vehicle was damaged and beyond repair and the salvage valued at Kshs. 150,000/- hence losing a value of Kshs. 390,000/- which formed the basis of his claim.In Nkuene Dairy Farmers Co-operative Society & Another vs Ngacha Ndeiya (2010) eKLR the Court of Appeal held:-In our view special damages in a material damage claim need not be shown to have actually incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty. In Ratcliffe vs Evans (1892) 2QB 524 Bowen LJ said:-The character of the acts themselves which produce damage, and the circumstances under which these acts are done, must regulate the degree of certainty, and particularity with which the damage done ought to be stated and proved. As much particularity and certainty must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.

18. From the foregoing it is clear that the respondent needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that the repairs were actually done and paid for. The value of the damage was assessed by an assessor and the assessment report by Regent Automobile Valuers & Assessors Ltd was produced in support of the respondent’s evidence. Evidently, the appellant did not dispute the report, he only indicates that the report did not indicate the estimated cost of repair of the respondent’s vehicle to justify why it was to be treated as a total loss. The assessment report placed the pre accident value at Kshs. 540,000/- and the salvage at Kshs. 150,000/-. Thus the suit motor vehicle lost a value of Kshs. 390,000/-. The respondent produced a receipt of Kshs. 6,000/- from Regent Automobile Valuers and Assessors and one for towing fees for the sum of Kshs. 12,000/-. Therefore the total sum works out as follows:-Kshs. 390,000 + Kshs. 6,000 + Kshs. 12,000 = Kshs. 408,000/-Therefore Kshs. 408,000/- less 20% (Kshs. 81,600/-) = Kshs. 326,400/-.20. In the circumstances, this court has reason to interfere with the judgment of the trial court. I find that the sum proved by the respondent is Kshs.326,000/-.

Conclusion 19. In view of the foregoing, I find that the appeal has merit. The award of Kshs. 360,000/- is hereby set aside and substituted with an award of Kshs. 326,000/-.

20. It is hereby so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 3RD DAY OF APRIL 2025. F. MUCHEMIJUDGE