[2022] KEHC 16980 (KLR)

Kaniu & another v Tipper Hauliers Limited (Civil Appeal 43 of 2019) [2022] KEHC 16980 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16980 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 43 of 2019

GWN Macharia, J

December 15, 2022

Between

Hannah Wanini Kaniu

1st Appellant

Robert Wambugu Mwangi

2nd Appellant

and

Tipper Hauliers Limited

Respondent

(Being an appeal against the Judgement and Decree of the Chief Magistrate's Court at Naivasha in CMCC No. 659 of 2016 delivered by Hon. K. Bidali (CM) on 18th September, 2019)

Judgment

1. This appeal challenges the judgment of Hon. Bidali in Naivasha CMCC No 659 of 2016. The respondent’s claim against the appellants in the lower court arose from a road traffic accident which occurred on November 1, 2015 at Maili Mbili area along Naivasha – Mai Mahiu road. The accident involved motor vehicle registration number KBU 675R/ZE 2616 Scania Prime Mover, property of the respondent, and motor vehicle registration number KCE 576Z Mitsubishi Canter, owned by the 1st appellant and driven by the 2nd appellant at the material time.

2. In a Plaint dated July 18, 2016, the respondent pleaded that its driver was lawfully and carefully driving motor vehicle registration number KBU 675R/ZE 2616 when the 2nd appellant, for whose acts the 1st appellant is vicariously liable, so negligently drove, managed and/or controlled motor vehicle registration number KCE 576Z Mitsubishi Canter causing it to violently ram into the petrol tank on the right hand side of the motor vehicle registration number KBU 675R/ZE 2616 that it burst into flames. The respondent claimed that its motor vehicle was burnt beyond repair and pleaded the doctrine of Res ipsa loquitor. It therefore prayed for the following: the sum of Kshs 7,800,610/- for the loss and damage suffered as a result of the accident; loss of user at Kshs 1,200,000/- per month from the date of the accident until date of full compensation; costs of the suit; and, interest at courts rates.

3. The appellants filed a joint Statement of Defence in which they denied the respondent’s claim in entirety.

4. Upon trial, the trial court found the appellants wholly liable for the accident and entered judgment for the respondent as against the appellants jointly and severally. It awarded the respondent Kshs 7,800,610/- for material damage, Kshs 7,200,000/- for loss of user as well as the costs of the suit and interests.

5. Aggrieved by the entire decision, the appellants lodged the instant appeal and raised seven grounds in its memorandum of appeal. The same can be summarized as follows:1. That the learned trial magistrate erred in assessing damages and failed to apply the principles applicable in award of liquidated damages and hence ended up making an award that is manifestly excessive.2. That the learned trial magistrate erred and misdirected himself as to the principles applicable in making an award under the claim of loss of user and therefore erred in law in her assessment and award of loss of user which ought not to have been awarded as the subject vehicle had been declared a write off.3. That the learned trial magistrate failed to take into consideration the cross examination by the defence and their submissions.

Summary of evidence 6. This being a first appeal, it is the duty of this court to review and evaluate the evidence on record afresh and draw its own conclusions although due allowance must be given to the fact it did not have the benefit of seeing or hearing the witnesses. See Selle & Another v Associated Motor Boat Co. Ltd & Others[1968] EA 123.

7. PW1 No 82568 CPL Ahmed Wako attached to Naivasha Police Station investigated the accident and produced in court a Police Abstract prepared in respect to the accident in question. According to his recorded statement which he adopted as his evidence in chief, he received a call from the base commander, Chief Inspector Philomena Wambua at 10. 50pm on the material night regarding the accident. He proceeded to the scene of the accident immediately. He established that Mitsubishi Canter collided with the Scania Prime mover while attempting to overtake and both vehicles caught fire. Both vehicles ended up outside the road on the left side as one faces Mai Mahiu direction. The sub county fire fighters helped to put out the fire. He testified in court that according to the Police Abstract, the Mitsubishi Canter was blamed for the accident and he recommended that the driver, the 2nd Appellant herein, be charged with causing death. He produced various other documents namely a notice of intended prosecution, a sketch plan for the accident scene and motor vehicle reports.

8. In cross examination, PW1 stated that although the abstract indicates that the matter was pending investigations, the same were subsequently concluded but the 2nd Appellant has never been charged because he was never seen again.

9. PW2, Njuguna Waweru, a motor vehicle assessor produced an assessment report for the respondent’s motor vehicle registration number KBU 675R. In his opinion, the costs of repairing the said motor vehicle was Kshs 6,217,600/- which was way beyond economic repair since the pre-accident value was Kshs 7. 6 million. He arrived at the value by applying a depreciation of 18% for two years against the purchase price of Kshs 11. 5 million. According to him, that was a total loss. He produced the report in evidence.

10. PW3, Khatib Omari Khatib was the driver of the respondent’s motor vehicle on the material day. According to his statement dated July 18, 2016 which he adopted as his evidence in chief, he was driving the respondent’s motor vehicle from Naivasha towards Mai Mahiu and he was on his rightful lane. On reaching Kihoto area at around 10. 20pm, he saw the Appellants’ motor vehicle coming from Mai Mahiu direction. Suddenly and without any warning, the Mitsubishi Canter started overtaking a salon car which was in front of it. It encroached on his lane and he tried to warn the driver by flashing his lights but the said driver kept moving closer to him. On realizing that there was going to be a collision between the two vehicles, PW3 swerved to the extreme left almost outside the road and the Mitsubishi Canter hit the petrol tank of the respondent’s motor vehicle causing it to burst into flames. The Mitsubishi Canter also caught fire. PW3 and his conductor quickly alighted from the burning vehicle and were rushed to Naivasha District Hospital for treatment. He blamed the driver of the Mitsubishi Canter, the 2nd Appellant herein, for causing the accident.

11. In cross examination, he stated that he tried to swerve off the road but the Mitsubishi Canter followed him hence the accident occurred off the road.

12. PW4, Samuel Mwangi Gitonga was a legal officer from the respondent Company. He testified that the respondent’s motor vehicle used to make a monthly profit of approximately Kshs 1. 2 million. He produced statements of profit and loss made from the motor vehicle for the months of July, August and September 2015, just before the accident. He also produced towing charges receipt, copy of logbook, motor vehicle, copy of a Search for the Appellant’s motor vehicle, police abstract, demand letter, investigation report and an invoice for the purchase of the respondent’s motor vehicle. In cross examination, he stated that the respondent’s motor vehicle was purchased in March 2013. He also stated that the respondent Company had a contract for transporting clinker to Tororo, Uganda although he did not have invoices or receipts to prove that in court. Lastly, he stated that he did not have any tax returns from KRA relating to the vehicle in court.

13. The appellants herein closed their case without calling any witness or tendering anything in evidence.

Submissions 14. The appellants contended that the trial magistrate failed to consider their extensive submissions on the award for Loss of User. They faulted the trial magistrate for awarding the respondent loss of user without any proper proof when the same is a special damage claim that must be strictly pleaded and strictly proved. They took issue with the fact that PW4 did not tender in evidence any agreement entered into with Tororo Cement for supply of clinker to support the statement of profit and loss for the three months preceding the accident. In their view, the respondent was required to produce documentary proof of the business opportunities lost in the period after the accident, if any.

15. Further, they contended that the statement of Profit & Loss Account tendered in evidence by PW4 offends the basic principles of accounting since it only shows the income and explicitly excludes the expenses incurred. In this regard, they submitted that the Statements should also have covered the months of November 2015 onwards to demonstrate the actual business and/or income lost after the subject accident. According to them therefore, the said document was not a true reflection of the income generated in the transport business that the respondent was allegedly engaged in and thus should not have been used by the trial magistrate as a basis for awarding loss of user.

16. It was also the appellants’ contention that it was wrong for the trial court to award the respondent both total loss and loss of user. They argued that doing so was akin to double compensation which should be frowned upon especially where Insurance pays the sum Insured to restore the Plaintiff to as near as possible to its state before the accident occurred. They relied on Permuga Auto Spares & another v Margaret Korir Tagi [2015] eKLR and Raymond Muindi Simon v Takaful Insurance of Africa[2019] eKLR in which they submit that the courts declined to award both total loss and loss of user.

17. The appellants also submitted that the respondent did not lead any evidence to show what actions it took to mitigate or minimize its loss after the subject accident. Additionally, it was the appellants assertion that a claim for loss of use must only be for a reasonable period of time being the time necessary for the repairs to be made on the damaged vehicle. Relying on Matunda Fruits Bus Services Ltd v Moses Wangila Wangila & another [2018] eKLR and African Highland Produce Limited v John Kisorio[2001] eKLR, they submitted that courts have held that reasonable time for repair can be anything from fifteen (15) days to twenty-one (21) days depending on the circumstances.

18. In the premises, they urged that if this court is inclined to make an award of loss of user, the same should be awarded for a total period of twenty-one (21) days, less 30% deductible tax and less Kshs 340,000/- being reasonable expenses relating to fuel costs, service of the vehicle, salaries of the driver & turn boy as well as levies/permits for weigh bridges and border crossing amongst others. To them therefore, the award of loss of user should be Kshs 500,000/- calculable as follows: Kshs 1,200,000 x 70%= Kshs 840,000 less Expenses of Kshs 340,000 = Kshs 500,000/-.

19. On the other hand, the respondent submitted that in awarding loss of user as claimed in the Plaint, the court took consideration of the fact that respondent produced statements showing the income generated by Motor Vehicle Registration Number KBU 675R / ZE 2616 Scania Prime mover, which evidence was never challenged. The respondent stated that the sum of Kshs 1,200,000/- per month pleaded in the Plaint for loss of user was not given out of speculation or conjecture as it was duly supported by evidence. In this regard, it was submitted that the respondent furnished the court with itemized profit and loss records for three months prior to the accident which shows the profits made as Kshs 1,176,822/=, Kshs 1,325,763/= and Kshs 1,322,400/= respectively, all received from Tororo Cement Limited.

20. Further, the respondent took issue with the appellants’ argument that it was not entitled to an award of loss of user since the vehicle was a write off. They submitted there was nothing wrong with the trial court awarding both total loss and loss of user since the inspection report was prepared on April 28, 2016, six months after the subject accident that happened on November 1, 2015. The respondent relied on several cases to support this submission. For instance, the case of Rapid Kate Services & another v Fredrick Ringera [2019] eKLR where Odunga, J (as he then was) held that:“In the present case, the vehicle was written off and until the respondent got the pre-accident value of the vehicle, he was entitled to loss of user of the vehicle and I cannot say that three months was an inordinately long period to claim loss of user".

21. In the respondent’s view therefore, the award for loss of user was reasonable and that this court should not interfere with the trial court's finding on the same.

Analysis and determination 22. The first issue for this court’s consideration is whether awarding loss of user where a motor vehicle became a write off or a total loss as a result of an accident amounts to double compensation. In the case of Sabuni v Kenya Commercial [2002] eKLR, Ringera J held that:“However I do agree with the submission that once the plaintiff has been compensated for the value of the vehicle he cannot then claim for damages for loss of user thereof subsequently. That would clearly be double compensation. That, however is not, in my understanding, the same thing as to say that a claim for value of the article destroyed and for loss of user thereof cannot be entertained in the same accident.” [Emphasis mine]

23. In Ryce Motors Limited & Another v Elias Muroki[1996] eKLR, the Court of appeal clarified its earlier decision in Peter Njuguna Joseph & Another v Ann Moraa Civil appeal No 23 of 1991 (UR) as follows;“We are here concerned that with the actual loss of user of the vehicle which has been immobilized by the accident. The owner must take all reasonable steps to ensure that the vehicle is back on the road within a reasonable period. The owner must mitigate his damages by having the vehicle repaired if it is not a write off. If the vehicle is to be a write-off, then the owner is entitled to pre-accident value of the damaged vehicle. He would then be paid a reasonable figure for loss of user until such time he received the pre-accident value of the write-off vehicle.” [Emphasis mine]

24. From the above authorities, it is clear that a plaintiff whose chattel is destroyed beyond repair and/or is a write off, is entitled to claim for both the pre-accident value of the chattel destroyed by the defendant’s tortuous act as well as loss of user. In the instant case, it is not disputed that the respondent’s motor vehicle became a write off as a result of the accident. This is supported by the evidence of the motor vehicle assessor PW2 who testified that the said motor vehicle was a total loss. In the circumstances, I find that the trial court was not misdirected in awarding the respondent both the pre-accident value of its motor vehicle and loss of user.

25. The next issue is whether the respondent proved the claim for loss of user to the required standard. It is not in dispute that damages for loss of user are in the nature of special damages and thus must be pleaded and proved. PW4, the respondent’s legal officer produced statements of profit and loss made from the respondent’s motor vehicle for the months of July, August and September 2015. The statements show that the respondent’s motor vehicle was being used to transport clinker to Tororo Cement Limited. The respondent made Kshs 1,176,822/- in July, Kshs 1,325,763 in August and Kshs 1,322,400/- in September from the said transport business. The appellants claim that the statement of profit and loss was not well prepared and that it was not supported by an agreement showing that the respondent had been contracted by Tororo Cement Limited to transport clinker. I find this argument to evasive.

26. In Wambua v Patel & Another [1986] KLR 336, the High Court (Apaloo, J. as he then was), was faced with the problem of quantification of loss of earnings of a cattle trader who had been severely injured in a road traffic accident. Although the court in that case found that the evidence of the plaintiff’s earnings to be very poor and that he had kept no books of account nor business books and had never paid any tax, the court said at p.346 para 25:“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….a victim does not lose his remedy in damages because the quantification is difficult.”

27. Having considered the above, I am satisfied that the respondent has proved that motor vehicle registration number KBU 675R/ZE 2616 used to generate an average income of Kshs 1,200,000/- from the cement transport business.

28. The next issue is whether the respondent was under a duty to mitigate its loss in the circumstances of this case. Our jurisdiction is awash with authorities to the effect that the owner of a chattel must take all reasonable steps to mitigate the loss suffered as a consequence of a tortuous act, whether the chattel is damaged or is a write off. In the Ryce Motors Case(Supra), the Court of appeal observed that;“In our view the statement in Ann Moraa’s case that the plaintiff is entitled to wait until he is paid the pre-accident value of his destroyed property does not reflect the correct legal position. The position in law is that a man in the position of the respondent must take reasonable steps to mitigate his damages and for this purpose there is no distinction between a damaged and destroyed vehicle.”

29. In this case, the respondent did not lead any evidence as what steps it took to reasonably mitigate its loss upon learning that its vehicle was written off. In Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR, the Court of appeal cited the case of Chinese Technical Team for Kenya National Sports Complex & 2 others v Chabari M’Ingaruni – Court of appeal Civil appeal No 293 of 1998 (unreported) in which a period of 6 months was considered as a reasonable period for computing loss of user of a matatu. That is the same period that was applied by the trial magistrate in this case when rejecting the respondent’s claim for loss of user for a period of one year. I also find this period to be reasonable in the circumstances of the case.

Conclusion 30. The upshot is that the appellants’ appeal lacks merit and is hereby dismissed with costs to the respondent. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Ms.Chelule for the appellants.2. Ms.Ahono h/b for Mr.Mbada for respondent.