[2022] KEHC 9948 (KLR)

Kariuki v Kimondo (Civil Appeal 756 of 2016) [2022] KEHC 9948 (KLR) (Civ) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9948 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 756 of 2016

CW Meoli, J

July 14, 2022

Between

Mwangi Kariuki

Appellant

and

Augustus Kimondo

Respondent

(Being an appeal from the judgment of L.W. Kabaria , SRM. Delivered on 16th November 2016 in Nairobi CMCC No. 5802 of 2016)

Judgment

1. This appeal emanates from the judgment delivered on November 16, 2016in Nairobi CMCC No. 5802 of 2014. The suit in the lower court was commenced by a plaint filed on September 30, 2014 by Mwangi Kariuki the plaintiff in the lower court (hereafter the Appellant) against Augustus Kimondo, the defendant in the lower court (hereafter the Respondent). The claim was for special damages in respect of a road traffic accident that occurred on October 1, 2011. It was averred that the Respondent so negligently drove, managed, handled and or controlled his motor vehicle registration number KAX 532N that he caused and or allowed it to collide into the Appellant’s motor vehicle registration number KAL 216S thereby causing it extensive damage. It was further averred as result of the said collision the Appellant’s motor vehicle registration number KAL 216S was extensively damaged, occasioning the Appellant loss and damage.

2. The Respondent filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Respondent pleaded contributory negligence against the driver of the Appellant’s motor vehicle. The suit proceeded to full hearing during which only the Appellant adduced evidence. In its judgment, the trial court found in favour of the Appellant and held the Respondent wholly liable for the accident. Judgment was entered against Respondent in the sum of Kshs. 91,800/- made up as follows:a.Special damages Kshs. 91,800/-;

3. Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds: -“1. The learned magistrate erred in law and misdirected herself in appraisal of the evidence tendered before her as regards repair charges incurred.2. The learned magistrate erred in law and misdirected herself on the law on special damages and the proof thereof.3. There is no nexus between the judgment and the evidence on record.4. The judgment is not supported by evidence on record.5. The learned magistrate completely and wholly misdirected herself on the law applicable to a loss of use claim and arrived at an erroneous decision.6. The judgment is not maintainable in law.7. The learned magistrate erred in law and fact by failing to consider the authorities submitted by the Appellant.” (Sic)

4. The appeal was canvassed by way of written submissions. Counsel for the Appellant commenced his submissions by restating the duty of this court as a first appellate court to re-assess the entire evidence adduced and draw its own conclusion while bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify. Concerning damages pleaded in the plaint, counsel reiterated the Appellant’s evidence at the trial that he paid for all charges raised in respect of repairs to his vehicle and faulted the trial court for accepting payments made in respect of spare parts while declining to award the other attendant expenses, including the assessment report and urged that the Appellant was entitled to an award regarding the the costs of repairs and assessor’s fees.

5. Submitting on loss of use and mitigation of loss, counsel called to aid the decisions in Nairobi HCCC No. 4081 of 1994 Evans Crops Contractors v Isaiah Minyongaand Civil Appeal No. 311 of 2003 Khan Transporters Ltd v Peter Mbugua. He submitted that firstly, the ownership and use of the Appellant’s motor vehicle was not rebutted by the Respondent and secondly, that the trial court failed to apply the correct legal standard of reasonableness in rejecting the Appellant’s claim for loss of use which was established by evidence. In conclusion counsel submitted that this court ought to allow the repair costs, assessors’ fee and the loss of user as was pleaded in the plaint.

6. The Respondents naturally defended the trial court’s findings. Counsel addressed the court on two issues pertaining to the award on repairs and loss of user. In so doing the Respondent anchored his submissions on the decisions in Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278, Mwanasokoni v Kenya Bus Services Ltd CA No. 35 of 1985 and Peters v Sunday Post Limited on the duty of an appellate court on a first appeal. Counsel asserted that the trial court did not err when it declined to award costs for repairs as the invoice tendered in proof was neither in the Appellant’s name nor was any connection established between him and the name on the invoice. Besides, no evidence was tendered in respect of payment of the invoice by the Appellant hence the claim was not strictly proved.

7. Concerning the loss of user counsel cited Ryce Motors Limited & Coast Agency v Elias Muroki Civil Appeal No. 119 of 1995 to assert that the Appellant failed to mitigate his losses and failed to prove the claim. That the trial court’s finding that the Appellant ought to have hired alternative transportation for is charcoal business after the accident in order to mitigate his loss could not be faulted. Further it was contended that the Appellant failed to substantiate the claim by adducing credible evidence. Counsel therefore submitted that the appeal lacks merit and ought to be dismissed.

8. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

9. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

10. Upon review of the memorandum of appeal and submissions by the respective parties before this court it is evident that the appeal challenges the trial court’s findings on two heads of damages, namely, repair expenses and lost user. Consequently, it is this court’s view the appeal turns on the question whether the trial court’s award on damages was justified and well founded. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

11. The Appellant by his plaint averred at paragraphs 5 that:“5. As a result of the said collision the Plaintiff’s motor vehicle registration number KAL 216S was extensively damaged and the Plaintiff has suffered loss and damage.Particulars of Damage(a)Police Abstract Report Kshs. 200. 00(b)Assessment Fees Kshs. 8,500. 00(c)Towing Charges Kshs. 12,800. 00(d)Repair Charges Kshs. 155,440. 00(e)Loss of use @ Kshs. 12,000/-per day for 27 days Kshs. 324,000. 00Total Kshs. 500,940. 00And the Plaintiff claims the said sum of Kshs. 500,940/=.” (sic)

12. The Respondent filed a statement of defence denying the key averments in the plaint by stating at paragraphs 9 that:“9. The Defendant does not admit the motor vehicle registration number KAL 216S was damages as alleged or that the Plaintiff suffered any loss and damage and all and singular particulars of damage and particulars of special damages set out in paragraph 5 of the plaint are denied and the Plaintiff put to strict proof thereof.” (sic)

13. The onus was on the Appellant to plead and prove the particulars of loss and special damages pleaded in his plaint. The trial court after restating and analyzing the evidence concluded as follows concerning the Appellant’s claims: -“Loss & damageI have similarly considered the evidence adduced in the respect as well as the submissions of counsel…..(i)Repair charges Kshs. 155,440/-I have seen the repair estimates by Messrs. Poly Tech Assessors addressed to Messrs. Kenya Orient Insurance Company for this amount, now I see as well a receipt issued by Messrs. Interex Motor Spares Ltd dated October 18, 2011 in respect of spare parts amounts to Kshs. 79,000/-. There is in addition an invoice dated the October 26, 2011 addressed to Kenya Orient Insurance Company Ltd claiming a sum of Kshs. 76,440/- in respect of the vehicle KAL 216S.Now with the report and invoice of the October 26, 2011addressed to Kenya Orient a little more explanation should have been offered by the Plaintiff to explain the nexus. Nonetheless as only a sum of Kshs. 79,000/- proved and paid and that receipt shown issued is not specific to Messrs Kenya Orient. I will allow the claim to that extent.(ii)Assessment Fees Kshs. 8,500/-I have seen the receipt dated October 1, 2011 the same is issued in favour of Messrs Kenya Orient Insurance. The amount cannot be recovered by Mr. Mwangi.(iii)Receipts totaling this amount have been availed.(iv)……….The defendant contends that Mr. Mwangi cannot recover under this head that he failed to mitigate his loss which he was legally obligated to do. The latter position is accurate, it is now well settled principle of law……….In this case Mr. Mwangi told the court he use his lorry to ferry charcoal which he sold in various parts of the country. With his vehicle out of commission why did he not hire another lorry to transport this charcoal and continue trading as his vehicle underwent repair and claim the amount expended in hire? Mr. Mwangi instead brought his business to a halt in am persuaded that he indeed failed to mitigate his loss I am not persuaded to ward the amount he not claims under this head.Judgment is therefore hereby entered in favour of the plaintiff as against the defendant as hereunder; a. Liability - 100% b. Special damages Kshs. 91,800/-. Interest will accrue thereon from the date of filing suit until payment in full. I also award to the plaintiff the costs of the suit” (sic)

14. The Court of Appeal in David Bageine vs. Martin Bundi[1997] eKLR stated: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:“... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus;“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.”

15. Further Chesoni, J (as he then was) stated in the case of Ouma v Nairobi City Council (1976) KLR 304:-“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533; -The character of the acts themselves which produce the 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 certainty and particularity 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.” (Emphasis added)See also Hahn -v- Singh [1985] KLR 716.

16. The Appellant testified as PW1. It was his evidence that he paid the assessor’s fees, towing charges, bought spare parts worth Kshs. 79,000/-, paid for the repairs and to that effect produced the several documents as proof. (P. Exh.5, P. Exh.6, P. Exh.7 and P. Exh.9). During cross-examination he stated that the insurance company appointed the assessors however he was the one who paid them, notwithstanding. On being questioned concerning the receipts bearing the name of Kenya Orient Insurance Co. Ltd he asserted that he could not recall. No evidence was tendered of payments by the Appellant in this regard. The trial court declined to award the claim for assessment fee and repairs charges on the ground that the invoices tendered were addressed to Kenya Orient Insurance Co. Ltd and not the Appellant. However, the court proceeded to award the claim for repair parts estimate from Messrs. Poly Tech Assessors based on P. Exh.4 and towing fees based on P. Exh.6.

17. The Appellant has argued that he paid for all charges raised as such the trial court was inconsistent when it accepted payments for the spares but declined to award the other attendant expenses. The Respondent countered by stating that trial court did not err as the invoice in respect to the claims were not in the Appellant’s name. This court agrees with the reasoning of the trial court; the material relied on by the Appellant did not demonstrate that he met the expenses claimed, but on the contrary that the Orient Insurance Company Ltd did; and yet the suit was not one brought under the doctrine of subrogation. The trial court properly awarded the estimated cost of spare parts, but the cost of repairs and the assessment report was not shown as a cost borne by the Appellant and could not be awarded. There is no inconsistency with this finding as each item had to be considered separately; the proof of purchase of spare parts by the Appellant could not imply that the repair costs were thereby automatically proved.

18. In Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR stated that:“In our view special damages in a material damage claim need not be shown to have actually been 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…. In Ratcliffe v. Evans [1892]2QB 524 Bowen L.J. said:“The character of the acts themselves which produce the 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 certainty and particularity 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.”

19. Concerning the Appellant’s claim for loss of user it was Appellant’s evidence before the trial court that because of the accident he lost use of his vehicle for a total of twenty-seven days and estimated his daily loss as a result at Kshs. 12,000/- daily. The Respondent argued that the Appellant failed to mitigate his loss, an argument with which the trial court concurred. The trial court rightly relied on the Court of Appeal decision in African Highland Produce Ltd v John Kisorio (2001) eKLR which addresses on all fours the question of mitigation of loss. It was held therein that:“It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues. He cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintiff realizes that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those of the defendant. The plaintiff is under no obligation to injure himself in his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to minimize the damages or embark on dubious litigation. The question of what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.”

20. Similarly, this court concurs with the trial court’s position that if indeed the Appellant was prior to the accident using his vehicle for business, he ought to have procured an alternative means of transportation while the vehicle was undergoing repairs in order to continue operations. This is because he had the duty to take all reasonable steps to mitigate the loss sustained as a consequence of the wrongful act of the Respondent. Like this court, the trial court was rightly perplexed by evidence by the Appellant that he instead opted to allow his business to grind to a halt. Such conduct if true appears unreasonable in the circumstances of the case. In addition, the Appellant failed to demonstrate claims that he earned Kshs. 12,000/- daily prior to the accident and that is what he lost daily following the accident. The trial magistrate cannot be faulted for so finding.

21. Flowing from the foregoing, this court finds no merit in the appeal. The appeal is accordingly dismissed with costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 14TH DAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Appellant: N/AFor the Respondent: N/AC/A: Carol