[2023] KEHC 25274 (KLR)

Kenindia Assurance Co Limited v Kariuki (Civil Appeal E48 of 2019) [2023] KEHC 25274 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25274 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E48 of 2019

FROO Olel, J

November 7, 2023

Between

Kenindia Assurance Co Limited

Appellant

and

Francis Ngaruiya Kariuki

Respondent

(Being an appeal from the judgment and decree of the Senior Resident Magistrate Honourable J.A Agonda delivered on 22nd June 2019)

Judgment

A. Introduction 1. This appeal arises from the judgment and/or decree of honourable J.A Agonda dated 22. 03. 2019 delivered in Mavoko PMCC No 177 of 2016 where she awarded the Respondent a sum of Ksh.2,625,000/= for loss of user, towing charges Ksh.30,000/= plus costs and interest of the suit.

2. Being wholly dissatisfied by the said judgment, the appellant did file their memorandum of appeal dated 4th April 2019 and raised six grounds of appeal namely that;a.The learned trial magistrate erred in law and fact when she held that the Respondent had proved his case on a balance of probabilities where there was no such proof.b.The learned trial magistrate erred in law and fact in awarding the Respondent special damages for loss of user which were neither specifically pleaded, particularized nor proved.c.The learned magistrate held that ‘the plaintiff did not produce any notebook containing records for daily earnings or where he used to write amounts relating to his vehicle’ yet erred in law and fact when she proceeded to award the Respondent and sum of Ksh.2,625,000/= for loss of user.d.The learned trial magistrate erred in law and fact by using a figure of Ksh.7,500/= as a multiplier for loss of user per day without any justification on how the same was arrived at.e.The learned trial magistrate erred in law in failing to acknowledge and find that the Respondent had not adduced any evidence in support of his claim for loss of user but proceeded to award the same to the Respondent.f.The learned trial magistrate failed to consider submissions for the appellant and critically analyse the same and accord its weight particularly on the issue of damages claimed for loss of user.

B. Pleadings and Facts of the case 3. The Respondent did file his plaint where he pleaded that he was the registered own of motor vehicle registration no. KBC 304G Isuzu lorry which he had comprehensively insured through the appellant insurance company vide policy no. P/05/08/00880/2015 61/06. On 19th June 2015, the suit lorry was involved in an accident along Kutch feeder road within Mlolongo township where motor vehicle KWR 569/2B 5516 – Volvo trailer tripped and fell on its cabin thereby causing it extensive damages. The accident was purely and solely caused by the negligence of a third-party motor vehicle and such liability was well covered by the insurance policy he had taken out.

4. After the accident, the appellant did appoint accident assessor’s M/S Coast Accident and General Investigators limited and they did return a repair value of Ksh.1,060,000/=, they thereafter authorised M/S Dunhill Automobile garage to undertake repairs on the suit motor vehicle. Unfortunately, the appellants negligently and without any justification abandoned their contracted duty as a result of which the respondent suffered loss and damages which he particularized. The Respondent did pray for loss of user from 22nd June 2015 and also for special damages of Ksh.30,000/= being towing charges. The Respondent did produce the suit lorry logbook, receipt for insurance paid Ksh.119,285/= and policy document as exhibit 1 – 3.

5. In cross examination the Respondent did state that immediately the accident occurred, he did inform the Insurance company of the accident and later delivered to them all documents which they required. According to the motor vehicle inspection report the cabin was crushed and steering wheel was flat. The said suit lorry could not be driven after the said accident. At the garage wrong fittings were effected on the cabin and there was back and forth for two months since he did not want a second hand cabin, which was eventually used but since he could not get the suit lorry released he filed a suit at Machakos High court and eventually the suit lorry was released to him on 29th November 2016, unrepaired and he commissioned a second assessment and a report was prepared dated 20th December 2016. The key finding was that the suit motor vehicle head fitted was FVR instead of FVZ.

6. Due to indifference and negligence of the Insurance company, the suit motor vehicle spent in the garage from mid-June 2015 to 29th November 2016. The lorry would be used to ferry sand and ballast between Mombasa and sultan hamud and he would get a profit of Ksh.15,000/= daily after calculating the loss/driver/contribution expenses. The Respondent did pray to be paid loss of user and Ksh.30,000/= towing fee.

7. The Appellant did file its defence and denied the respondents claim and stated that the respondent deliberately failed to collect the suit lorry from the garage despite concerted efforts by the appellant and therefore was not entitled to any compensation. During trial the appellant did call one John Ngundo who worked as an administration officer in the crimes department. He confirmed that indeed the Respondent was their client and had taken comprehensive commercial insurance for the suit lorry. On 19. 06. 2015 the suit lorry was involved in a road traffic Accident after a third party motor vehicle overturned and laid on the suit lorry. They authorized that the suit be assessed by Dunhill Automobile and estimate of damages was placed at Ksh.1,310,800/=. The motor vehicle was satisfactorily repaired and the Respondent duly informed but he refused to pick the lorry on the basis that the work carried out was not satisfactory.

8. DW1 further blamed the Respondent for the impasse and eventually the suit lorry was released pursuant to a court order issued by Machakos High Court. In cross examination DW1 confirmed that the impasse had been caused when the Respondent refused to pick the suit lorry on ground that the cabin fitted was for an old motor vehicle and there had been communicating breakdown between the parties. Further he did not authenticate whether the Respondent complaint was genuine or not. DW1 reiterated that it was the Respondent who had refused to pick the suit motor vehicle and him getting a court order was not necessary. In re-examination the witness confirmed that after the Respondent raised a complaint, they sent an assessor and were satisfied with the repairs done. Nothing more was done after the said assessor report was prepared and consumed.

9. DW2 zulfikar Hussein Gulam Hussein stated that he was a motor vehicle assessor working for Kenindia Assurance Co. Ltd. He was appointed to assess the Respondent’s motor vehicle and filed his report dated 30. 06. 2015. The assessment was carried out at Dunlop Motor and the repair estimate was Ksh.1,310,805/= all inclusive. The report was sent to the appellant insurance company and they authorised repairs to be carried out. On 28. 07. 2015 he went back and carried out post repairs inspection and was satisfied that the repairs were properly carried out and, on the basis, made the second report dated 29. 07. 2015. In March 2016 again they were instructed by the appellant to re-inspect the completed works on the suit lorry and verify if it was in good shape. On 11. 03. 2016 they verified that the suit lorry was in order and was ready for collection.

10. In cross-examination DW2 stated that the cabin used was second hand, but for the same truck and same model, but was not aware of the replaced cabin. They had authorized Dunlop motors to use the cabin model used in the said repairs.

11. The trial court did consider the evidence tendered and submissions filed and rendered judgment in favour of the Respondent and which judgement gave rise to this appeal.

Submissions 12. The appellant filed their submissions on 12. 05. 2023 and stated that their appeal had been filed within the statutory period and thus was properly before court. The main issue for determination was whether the appellant had breached the Insurance Policy and therefore liable to pay the Respondent the decretal amount as awarded. To successful claim damages for breach of contract the Respondent had to show that a contact was in existence, the said contract was breached by the appellant and that as a result the Respondent suffered damages (loss) as a result of the said breach.

13. The appellant submitted that they did send an assessor and authorized repairs of the said motor vehicle at Dunlop Automobiles Ltd and paid for the said repairs. They thus met their part of the bargain under the contact and did not breach the same. Reliance was placed on Abdi Ali Dere v Firoz Hussein Tundal and 2 others [2013]eKLR, Concord Insurance Co. Ltd v David Otieno Alinyo and Another [2005]eKLR and Burdis v Livey [2002] WLR 702.

14. The trial court was faulted for awarding the Respondent Ksh. 2,625,00/= for loss of user stemming from the Respondent averment that he used to earn Ksh.15,000/=per day from sand transport business. The Respondent did not tender any particulars of evidence of how much he earned per day through the commercial use of the said motor vehicle. The said figures were not pleaded nor was the same proved. Reliance as placed on Equity Bank Ltd v Gerald Wangombe Thuni [2015] eKLR and Itahn v Singh [1985] KLR 716 and African Highland produce Ltd v Kisorio [2001] E.A.

15. The Respondent was also faulted for failing to collect the suit motor vehicle after repairs had been finalized and thus the delay was purely caused by this action. Looked at in totality the appellant did submit that the Respondents case was not proved and prayed that this appeal be allowed and the award of loss of user be set aside.

The Respondents Submissions 16. The Respondent did file their submissions on 22nd June 2023 and addressed the issue of whether the appellant was liable to pay him the decretal amount as ordered by the trial court. They submitted that they had to move the court to seek release of the suit motor vehicle which had been held by the appellant and occasioning him loss of business. Vide a ruling delivered on 19th august 2016 the court did direct the appellant to release the lorry upon repair. The appellant defied the court order and subsequently its managing director was summoned to court to explain their defiance of the said order and finally the appellants did release the suit lorry to the Respondent on 14th November 2016.

17. The Respondent did further submit that loss of user was not a special damage to a specifically pleaded and this was the finding in the court of Appeal decision by Samuel Kariuki Nyangoti versus Johan Distelberger [2017]eKLR where the court stated that such a claim was general damages. Reliance was also placed on Martin Gikimu Kamange v Board of Governors, St Anne’s Juniro School Labao [2021]eKLR, Wambua v Patel and another [1986] KLR and Jebrock Sugarcane growers co Limited versus Jackson Chege Busi, civil appeal no. 10 of 1991 (Kisumu).

18. The courts having found that loss of user is a claim in the nature of general damages, the standard of proof is on a balance of probability and he had sufficiently proved that his lorry was used for commercial purposes. It was fully insured and after the accident it was never repaired on time and/or released to him until the courts intervened. Prima facie he had proved has claim and thus was entitled to be paid damages. The loss of user at Ksh.7,500/= per day on sand transport business was fair and not excessive the court properly exercised its discretion in allowing the same for a period of 350 days. The award of Ksh.2,625,000/=(350 days x Ksh.7,500/=) was therefore justified.

19. The Respondent thus urged this court to find that this appeal was unmerited and urged this court to dismiss it with costs to the Respondent.

Analysis and Determination 20. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari v Purushottam Tiwari (Deceased) by L.Rs [2001] 3 SCC 179.

21. In Coghlan v Cumberland 1898] 1 Ch. 704, the Court of Appeal (of England) stated as follows -“Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."

22. Also, it was further held by the Court of Appeal in Ephantus Mwangi & Another v Duncan Mwangi, Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 that:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

23. Therefore, this court is under a duty to delve at some length into factual details and revisit the facts as present in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial court had the advantage of hearing the parties.

24. The two main issues which arise for determination in this appeal and submissions filed by the appellant is the question as to whether the respondent did prove that the appellant breached the contract of insurance and that as a result the Respondent suffered damages (loss) as a result of the said breach. The second issue for consideration is whether the trial court rightly calculated the loss of user awarded to the respondent at Ksh.2,625,000/=.

Burden of Proof 25. Section 107(1) of the Evidence Act provides that;“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts must prove that those facts exist.”Section 108 of the Evidence Act further provides that;“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given by the other side.”

26. I also refer to The Halsbury’s laws of England, 4th Edition, Volume 17 at para 13 and 14 where it states that;“The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied in respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is essential to his case. There may therefore be separate burdens in a case with separate issues.{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to weight of evidence given, by either side during the trial varies; so will the evidential burden shift to the party who would fail without further evidence.”

27. The Question then is what amounts to proof on a balance of probabilities. Kimaru J in William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526 stated that;“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleased in his case are more likely than not to be what took place.in percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.

28. I also refer to Palace Investments Ltd v Geofrey Kariuki Mwendwa & Another [2015 eKLR , Where the judges of Appeal referred to “Denning J in Miller v Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say;“That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where the parties…..are equally (un)convincing, the party bearing the burden of proof will loose because the requisite standard will not have been obtained.”

29. It is not in doubt that there was valid contract of insurance between the parties. The appellant comprehensively insured motor vehicle registration no. KBC 304G Isuzu lorry through the appellant insurance company vide policy no. P/05/08/00880/2015 61/06. On 19th June 2015, the suit lorry was involved in an accident along Kutch feeder road within Mlolongo Township where motor vehicle KWR 569/2B 5516 – Volvo trailer tripped and fell on a cabin thereby causing it extensive damages. The accident was purely and solely caused by the negligence of a third-party motor vehicle and such liability was well covered by the insurance policy he had taken out. DW1 John Ngundo also did confirm this fact.

30. The insurance policy taken by the respondent was compressive and covered damages occasioned to the suit motor vehicle arising from accident caused by third party. The policy document at section I (1) to (4), section II(1) did expressly provided that they would fully indemnify the insured subject to the limits of liability which under this contract was Ksh.3,000,000/=. The respondent did complain bitterly that the suit motor vehicle was poorly repaired and particularly the cabin replaced was second hand and old model. The suit lorry was ISUZU FVZ model but the cabin used to replace the damaged one was for ISUZU FVR which was for an older model. He even offered to buy a new cabin at GM Motors, Kenya industrial coach at 200,000/= but his offer was not taken up by the appellants. The respondent produced a report by his assessor dated 20. 12. 2016 confirming this fact.

31. DW1 did confirm that the appellant had lodged a complaint with the insurance over the poor-quality workmanship and also instructed his lawyer to write to them demand letters regarding replacement of the cabin with an old model and poor workmanship. DW1 insisted that the workmanship carried out was okey and was confirmed by their assessor. It was the respondent who had failed to collect the suit lorry from the garage and was to blame for the delay. DW2 also produced three inspection reports; pre repair report dated 30. 06. 2016, post repair report dated 29. 07. 2015 and further inspection report dated 11. 03. 2016.

32. From the evidence adduced by both parties, it is obvious that the Cabin fitted after the accident was not similar to the initial cabin which the suit lorry was bought with.DW2 did confirm that the lorry was fitted with a second-hand cabin. There is no doubt that under the principal of indemnity, where the insurer opts to repair the suit motor vehicle, it is under strict legal obligation to repair it satisfactorily and without delay and put the motor vehicle in the condition in which it was before the accident or at least to make sure it is substantially and satisfactorily repaired. The insurer is also liable for the consequence of a failure to perform its duty adequately. See Brown v Royal Insurance co [1859] 1E &E 853 at page 858 – 859, Robson v New Zealand Insurance co ltd [1931] NZLR 35 , Maher v Lumberman’s Mutual Insurance Co ltd [1932] DLR 593 & Home District Mutual insurance Co v Thompson [1947] 1E & A 247.

33. The respondent evidence and assessors report dated 20. 12. 2016 did prove that the suit lorry was not satisfactorily repaired. His complainant was persistent throughout and it was never addressed. The evidential burden shift to the appellant to show that the put their insured in “the same position as if he was originally and as they were contracted to do”. Unfortunately, in this instance the appellant failed to discharge this burden and failed to adduce any further evidence to challenge the respondent’s evidence and that of his assessor. The trial magistrate therefore cannot be faulted for the finding that the appellant did breach the contract and it resulted in the respondent suffering damages.

34. As regards the delay in undertaking the repair and release of the suit lorry, the same issues were canvassed at length under the notice of motion application filed by the respondent dated 16th April 2016. Part of the orders sought was to compel the appellant to release the suit lorry upon repair. The application was heard on merit and vide a ruling dated 19th August 2016, the appellant was directed to release the suit lorry to the respondent. The appellant did not do so and filed a suit at the high court in Machakos, which ordered that the suit motor vehicle be brought to court. On 29th November 2016 a day before their application was heard inter-parties the appellant released the suit motor vehicle to the respondent and he went to the appellant’s office and signed a letter dated 29th November 2016, confirming the release of his lorry.

35. The delay in release of the suit lorry thus cannot be attributed to the respondent. DW2 last assessment was under taken in March 2016. The appellants did not file any correspondences to show that after the last assessment, they asked the respondent to pick his lorry. Even after filing the application for release of the lorry, the appellant instructed their counsel to oppose the same and subsequently filed proceedings in the high court challenging the ruling dated 19th August 2016. The respondent as a result suffered business loss as he was unable to use his lorry for a period of eighteen (18) months when it was in the garage.

Claim for loss of User 36. The respondent did plead for loss of user of his motor vehicle from 22nd June 2015 until the date of its release. During his evidence he testified that the lorry was used to transport sand and he lost Ksh.15,000/= daily for 423 days and pleaded with the court to award him Ksh.6,345,000/=. The trial magistrate reduced the amount to Ksh.7,500/= given that the lorry would at times breakdown, need service and would be out of business for some days she allowed the claim at Kshs 7,500/=for 350 days (Kshs 7,500/= x 350= 2,625,000/=).

37. The respondent opposed the claim under this head on the basis that it was not specifically pleaded and that the respondent did not provide supporting documents to quantify his claim. In the court of appeal decision in Samuel Kariuki Nyangoti versus Johaan Distelberger [2017]eKLR, the court of appeal held that ta claim for loss of use falls under general damages. Particularly, the court held that;“The appellant claimed both special and general damages. The special damages which did not include loss of user were particularized. The respondent in his defence denied that eh vehicle was a public service vehicle that it warned the appellant the alleged sum per day and that appellant was entitled to damages for loss of earnings. 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 is such claims is on balance of probabilities and the principle of restitution in integrum is applied in such cases.”

38. Faced with a similar predicament in Martin Gicimu Kamanga v Board of governors, St. Anne’s Juniro School, Lubao [2021]eKLR, Justice .W. Musyoka Held that“There is court of Appeal authority which the High Court had followed to the effect that loss of user is in the nature of general damages, proved on a balance of probabilities. The position was pronounced in Peter Njuguna joseph and another v Ann mora C.A No. 23 of 1991 (unreported) and Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR (Githinjui, Karanja and Kantai JJA). The appellant submits that based on those decisions, the trial court was in error in holding that loss of user was a claim in special damages and in failing to grant it. There is on the other hand, other authority from the Court of Appeal to the contrary. It was said in David Bagine v Martin Bundi [1997] eKLR (Gicheru, Shah and Pall), for example, that loss of user could only be special damage, for it is a loss which the claimant suffers specifically and which could not be equated to general damages. The High Court weighed in in such cased as in Summer Limited Meru v Moses Kithinji Nkanata [2006] eKLR (Lenaola J), where it was said that earnings from a matatu business were not a matter that could be left to judicial discretion for it was related to special damage which had to be specifically proved.”

39. Faced with the conflicting position, the court proceeded to trace the conflicting decisions based on their age and conclude that the current legal position is that a claim for loss of user is a claim for general damages. In arriving at this conclusion, the court observed that;“It would seem from the judicial authorities above that the law is settled on the matter. however, the decisions in David Bagine v Martin Bundi [1997] eKLR Gicheru, Shah and Pall) and Summer Limited Meru v Moses Kithinji Nkanata [2006]eKLR (Lenaola J) are a little dated and it would appear that there has been a shift in jurisprudence sine then going by the positions taken in Wambua v Patel and another [1986] KLR 336 (Apaloo J) and Jebroke Sugarcane Growers Co. Limited v Jackson Chege Busi Civil Appeal no. 10 of 1991 (Kisumu) (unreported), that the fact that damages are difficult to estimate, and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for his breach of duty and is no ground for awarding only normal damages. That position appears to have led to Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR (Githinji Karanja and Kantai JJA) where the plaintiff did not keep books of account or records, given the nature of their business. The correct law, therefore appears to be that stated in Samuel Kariuki Nyangotu v Johaan Distelberger [2017]eKLR (Githinji, Karanja and Kantai JJA) and adopted by the High Court in such diecision as Jackson Mwabili v Peterson Mateli [2020]eKLR (Mwita J) and Mac master limited v Onesmus Mutuku Muia [2018] eKLR (DK Kemei J).”

40. Based on the current position in law, the trial magistrate was right to hold that the respondent was entitled to a claim of loss of user and it is a claim made under general damages.

Quantum of Damages 41. As regards quantum, in Woodruff v Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

42. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004] eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

43. Similarly, in Jane Chelagat Bor v Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-“In effect, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, if the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

44. In Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR, the court of appeal held that that:“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

45. Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision whether or not to interfere with an award by the appellate court must necessarily be restricted.

46. The trial court did award the respondent for loss of user at Ksh.2,625,000/= and towing charges at Ksh.30,000/= the total decree was Ksh.2,655,000/= plus costs and interest. It has not been shown that the trial acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. Specifically she gave cogent reasons as to why she did so in her judgment especially as regards the loss of user claim and there is no basis for this court to interfere with the same.

C. Disposition 47. This appeal therefore has no merit. The same is dismissed with cost to the respondent.

48. The said costs is assessed at Ksh.300,000/= all inclusive

49. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 7TH DAY OF NOVEMBER 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 7th day of November, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant