[2013] KECA 61 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: MWERA, GATEMBU & MURGOR, JJ.A)

CIVIL APPEAL NO. 179 OF 2010

BETWEEN

KENYA COMMERCIAL BANK LIMITED ………………..............…………. APPELLANT

AND

SHEIKH OSMAN MOHAMMED …………………………..…................…. RESPONDENT

(An appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Joyce N. Khaminwa, J) dated 4th May, 2009

in

H.C.C.C. NO. 191 OF 2004)

*******************

JUDGMENT OF THE COURT

This appeal arises from the Judgment of the High Court (Khamniwa J) given on 4th May 2009 by which the respondent was granted the following reliefs:

An order directing the appellant to release to the respondent’s title documents relating to LR No. 418/B/J/1 and LR 1319/312 and log book to motor vehicle registration number KAA 426L.

Judgment for Kshs. 220,908. 21

General damages and mesne profits for loss of use of vehicle in the sum of Kshs.4, 500,000. 00.

Interest on the monetary awards at court rates from the date of filing suit.

Although the appellant filed a notice of appeal intimating that it was dissatisfied with the whole judgment, the grounds of appeal were confined to the complaints that the learned trial judge erred in:

Awarding the respondent Kshs. 4, 500,000. 00 for loss of user and mesne profits when the evidence of the respondent was that that figure was the value of the vehicle and not the loss of income.

Awarding damages for loss of user when the same, being damages in the nature of special damages was not specifically pleaded or proved.

Awarding interest on general damages from the date of filing suit as opposed to from the date of judgment.

Before we consider the grounds of appeal, it is necessary to set out the background in brief.

Background

The respondent’s case before the High Court was that in 1987 he applied and obtained loan facilities from the appellant. The loan facilities were secured with his properties LR No. 418/B/J/1 and LR 1319/312 and a log book in respect of his motor vehicle registration number KAA 426L, a lorry worth more than Kshs. 4,500,000. 00. He contended that he over- repaid the loan in August 1996 despite which the appellant failed or refused to release the securities. He therefore prayed for the release of the securities and “damages for detinue and mesne profits and a refund of Kshs.220, 908. 21”

The appellant admitted having granted loan facilities to the respondent that was secured by legal charges over the respondent’s properties LR No. 418/B/J/1 and LR 1319/312 and a chattels mortgage over motor vehicle registration number KAA 426L. The appellant however contended that the respondent defaulted in repayment of the loan whereupon it took steps to enforce the securities.

After hearing the parties the learned trial judge found that the appellant had “constructively converted the plaintiff’s vehicle by taking it away and keeping it forever as the witnesses seem to imply.” The judge also found that the respondent repaid the loan and overpaid by a sum of Kshs. 220,908. 21. The trial judge also found that the respondent had as a result failed to carry on his business and had suffered loss and damage. The judge concluded that:

“This court further finds that the defendant has caused damage and loss to the plaintiff by its conduct. The delay to release the securities has caused the plaintiff to cease to carry on his business and he has been deprived of the use of his vehicle and the documents of title. I find that the defendant acted fraudulently not keeping the plaintiff’s account in order thus causing the plaintiff to overpay the account in the sum of Kshs. 220,909/21.

Therefore the plaintiff is entitled to judgement which I hereby enter as prayed in terms of prayer (a) and prayer (bb) Kshs. 220,908/21. Prayer (b) general damages determined and mesne profits for loss of use of the vehicle in the sum of Kshs. 4,500,000/=

The monetary sums shall carry interest at court rates from the date of filing suit.”

The appellant has challenged that judgment in this appeal.

At the hearing of the appeal before us learned counsel Mr. J. Mbaluto appeared for the appellant. Mr. B. M. Musyoki learned counsel appeared for the respondent.

Submissions

There are two issues for determination in this appeal. The first is whether the award for Kshs. 4,500,000. 00 was made in error. A corollary to that is the question whether the claim for damages for loss of user was specifically pleaded and proved and if not whether the award by the High Court in that regard was made in error. The second issue is whether the judge erred in awarding interest on general damages from the date of filing suit as opposed from the date of judgment.

We will consider those issues in turn. We will first address the question whether the award for Kshs. 4,500,000. 00 was made in error. Citing the decision of this Court in the caseProvincial Insurance Company of East Africa Limited vs. Modekai Mwanga Nandwa Civil Appeal No. 179 of 1995 and also the case of Michael Maina and another vs. Stanley Kigara Kagombe Civil Appeal No. 109 of 1996 Mr. J. Mbaluto, for the appellant submitted that it is trite law that special damages must be pleaded and proved. Mr. Mbaluto went on to say that beyond the broad sweeping pleading by the respondent in his re-amended plaint, that the worth of the lorry was more than Kshs. 4, 500,000. 00 and that he suffered loss, there is no pleading with regard to special damages or the amount the respondent allegedly used to earn from the lorry; that at the trial, the respondent testified that he earned Kshs. 100,000. 00 per month, a figure that was neither pleaded nor supported by any documents.

Counsel went on to say that after the trial, there were misleading submissions made for the respondent seeking an award for mesne profits equivalent to the value of the vehicle in the sum of Kshs. 4, 500,000. 00 and that the learned trial judge wrongly accepted those submissions and awarded “prayer (b) general damages determined and mesne profits for loss of use of the vehicle in the sum of Kshs. 4,500,000. 00”

Counsel complained that there was no basis for that award as all the appellant did was to retain the logbook of the vehicle and therefore the award of damages equivalent to the value of vehicle had no basis; that the learned judge compounded the error by awarding interest from date of filing suit as opposed to date of judgment. In concluding his submissions, counsel indicated that the appellant was not challenging the award by the trial judge of Kshs. 220,908. 21 and the order directing the release of the title documents.

Opposing the appeal, Mr. Musyoki for the respondent submitted that the appellant has not appealed the order given by the trial judge for the release of securities and for refund of the overpayment. Accordingly, counsel went on to say there was no loan pending as at the time the lorry was attached; the lorry was taken away from the respondent in 1998 and never returned.

Regarding the complaint that the respondent’s claim for loss was neither pleaded nor proved Mr. Musyoki submitted that the respondent’s claim was for damages for detinue and conversion; that an award for damages for detinue is in the nature of general damages, as opposed to an award in special damages, that need not be pleaded or proved and that the trial judge had discretion regarding the amount to award; that in any event, the issue of whether the award by the judge is in the nature of special or general damages cannot now be raised and that the judge was right to give a rough estimate of damages for detinue.

Counsel distinguished the case of Provincial Insurance vs. Modekai (supra) and submitted that it does not apply in the circumstances of this case as it relates to a claim in contract while the respondent’s case is based on the tort of detinue. Counsel further submitted that the appellant did not answer the respondent’s claim in the High Court and only put up a defence of res judicata and the evidence of the Alex Mutemi, the defence witness, focused on res judicata without saying where the respondent’s lorry was.

Regarding the complaint that the judge erred in awarding interest on general damages from the date of filing suit as opposed to from the date of judgment as the basis, Mr. Musyoki submitted that the award of interest is a matter of judicial discretion which the trial court properly exercised.

In his brief reply Mr. Mbaluto submitted that the respondent, in the re-amended plaint only makes reference to surrender of a logbook and the issue of detinue or loss of use of vehicle is not supported by any of the pleadings and the prayer for “damages for detinue and mesne profits” in the re-amended plaint is made in a vacuum. Counsel also submitted that there is no claim for conversion and the submissions in that regard should be disregard; that an award for mesne profits must be an estimation based on what is previously earned and that the respondent quantified the loss at Kshs. 100,000. 00 at the trial, which was not pleaded.

According to Mr. Mbaluto there is no cross appeal or notice affirming decision of the trial judge and the decision of the trial judge cannot be supported or upheld on any other grounds; that the appellant’s defence went beyond the plea of res judicata as it is sufficient for a defendant to traverse allegations in the plaint while the plaintiff has the obligation to prove its case.

Our determination

We have considered the appeal and submissions. The reliefs granted by the High Court for the release of the respondents title documents with respect to LR No. 418/B/J/1 and LR 1319/312 and the logbook over motor vehicle registration number KAA 426L as well as the award of Kshs. 220,908. 21 have not been challenged in this appeal. What has been challenged is the award of “prayer (b) general damages determined and mesne profits for loss of use of the vehicle in the sum of Kshs.4, 500,000. 00” as well as the award of interest.

We have had great difficulty in understanding the nature of the respondent’s claim that culminated in that award. The High Court itself appears to have experienced the same difficulties as the trial judge ended up speculating or surmising what the respondent’s claim was. That emerges from the trial judge’s statement that “in respect of this case, the defendants have constructively converted the plaintiff’s vehicle by taking it away and keeping it forever asthe witnesses seems to imply. The plaintiff is therefore entitled to damages for detinue.”[Our emphasis]

Under prayer b) of the re-amended plaint the respondent prayed for “damages for detinue and mesne profit”. Based on the pleading, the complaint that the respondent appears to have been making was that the appellant detained the title documents. It does not emerge from the plaint that the appellant detained the vehicle itself.

In paragraph 4 of the re-amended plaint the respondent pleaded that he repaid the loan in full in August 1996 despite which the appellant “failed and/or refused to release the plaintiff’s securities occasioning him great loss and suffering.” In paragraph 5 of the re-amended plaint the respondent pleaded, “he has suffered inconvenience and cannot deal with his properties because of the defendant unlawful act.”

In paragraph 6 of the re-amended plaint the respondent

pleaded that:

“The plaintiff’s business has suffered great loss. His lorry used to earn him a lot of money per month and the same has been grounded due to the Defendant’s unlawful act. The plaintiff can no longer run his shops in Mandera which used to earn him profits for his family upkeep.”

In paragraph 8 of the re-amended plaint the respondent pleaded that his claim “is for release of the aforementioned title documents and damages for detinue and mesne profits…”

There is no averment therefore in the entire re-amended plaint that the appellant was in actual possession of the respondent’s vehicle. In the course of his testimony during the trial, however, the respondent stated that he gave security consisting of a logbook for a lorry and two building in Mandera to the appellant to secure a loan. He also stated that he repaid the loan in full and that “there was a case they took my lorry and land. I sued them. Case No. 888/1996. ” He went further to say in his evidence that he undertook a reconciliation of his accounts “after they took the lorry and property” and that the “bank has not returned my log book” and further that the “Lorry disappeared it was taken by defendant 4. 5 million value. I was getting Kshs. 100,000. 00 per month”.

The respondent’s testimony was therefore at variance with the pleadings in that that testimony had no foundation in the re-amended plaint and this led the trial court to surmise on the nature of the respondent’s claim as we have observed above.

It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim. Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case and more importantly, so that the issues for determination by the court are clear.

Be as it may, the learned trial judge held that the respondent was entitled to damages for detinue and further that “the plaintiff has failed to carry on his business and has suffered loss and damage.” The court further held that the “delay to release the securities has caused the plaintiff to cease to carry on his business and he has been deprived of the use of his vehicle and the documents of title.” On that basis the learned trial judge awarded what appears to be a non-definable consolidated award in the sum of Kshs. 4,500,000. 00 referred to in the judgment as “general damages determined and mesne profits for loss of use of the vehicle in the sum of Kshs. 4,500,000. 00”

We are, with great respect, unable to appreciate the nature of that award. To the extent that the learned trial judge found that the cause of action in detinue was proved, the learned judge was right, in principle, in taking the view that the remedy of general damages would be available. In General and Finance Facilities Ltd V Cooks Car (Romford) Ltd (1963) 2 All ER 314 Diplock L.J took the view that the remedies available in a claim founded on the tort of detinue may take the form of the value of the chattel as assessed as from the date of judgment and damages for its detention; or the return of the chattel or its value as from the date of judgment and damages; or the return of the chattel and damages for detention.

Damages for detention in law include the normal loss suffered as a result of the detention of the goods so that the plaintiff is awarded these damages in addition to the monetary value of the goods detained or the return of the goods itself.

In Strand Electric Co. V Brisford Entertainments (1952) 2 QB 246 (CA) the defendants had refused to return certain electrical theatrical equipment belonging to the plaintiffs which was profit-earning to them since the plaintiffs usually hired out the equipment. The Court of Appeal held that the plaintiffs were entitled to recover damages for the full hire of the equipment for the period of the detention. The plaintiffs illustrated to the court that they used the goods that were unlawfully detained in the course of their business and earned them profit, whereas the defendants detained the goods for their own use.

The Indian case of Naganagowda Veeranagouda Patil vs Leela Basappa KagganagiILR 1993 KAR 2382 in interpreting the words of the court in Strand Electric Co. V Brisford Entertainment (Supra) held that it was for the plaintiff to prove he suffered loss, if any, by reason of the tort committed against him.

In order to recover damages of detinue, the plaintiff must show the loss suffered as a result of the defendant’s wrongful detention of his goods. Did the respondent do so in this case? We do not think so. The award of Kshs. 4,500,000. 00 was undoubtedly influenced by the plea and testimony of the respondent that the value of the lorry was the specified amount. That is clear from the judgment as the trial judge stated: “the plaintiff’s evidence shows that the value of motor vehicle which the defendant attached and abandoned it leaving it being vandalized was Kshs.4, 500,000. 00”. Yet, other than for the reference in re-amended plaint, repeated by the respondent in his testimony that the value of the lorry was Kshs.4, 500,000. 00, no evidence was offered whatsoever to support that award.

If the award of Kshs.4,500,000. 00 represented “loss of use of the vehicle” then it is not evident how it was arrived at, what period it relates to or even how it is computed. We agree with counsel for the appellant that to the extent that the respondent based his claim on the pleading in paragraph 6 of the re-amended plaint to the effect that “the plaintiff’s business has suffered great loss. His lorry used to earn him a lot of money per month…the plaintiff can no longer run his shops in Mandera which used to earn him profits…” then, it is a claim that “was ascertainable and quantifiable”in the words of this Court in Provincial Insurance Company of East Africa Limited vs. Modekai Mwanga Nandwa (supra) and respondent should have been able to place material before the trial court demonstrating, on a balance of probabilities the loss he suffered.

In Sande V KCC (1992) LLR 314 (CAK- Cockar, Omolo and Tunoi) this Court upheld the decision of the trial court declining to award damages based on loss of profits on the grounds that the same should have been specifically pleaded and proved. That decision was followed with approval in CosmoAir V Diani Beach(1998) LLR 757 (CAK).

In the absence of any evidence to support the claim for Kshs.4,500,000. 00 put forth by the respondent, we are persuaded that the trial judge erred in principle in awarding that amount. The figure of Kshs.100, 000. 00 mentioned by the respondent in his testimony as being the income he was getting per month from the lorry was also not supported.

For those reasons we consider that the appeal has merit and allow the same and set aside the judgment of the High Court to the extent of the award for Kshs. 4,500,000. 00.

As regards the question of interest, the principle is that the award of interest is a matter of discretion but generally interest on general damages is awarded from the date of judgment, being the date when the principal obligation to pay is established. See Prem Lata v Peter Musa Mbiyu [1965] EA 592. Having set aside the award of Kshs. 4,500,000. 00, it is not necessary for us to address the question of interest.

The appellant will have half costs of the appeal.

Dated and delivered at Nairobi this 20th day of December, 2013.

J. W. MWERA

……………….

JUDGE OF APPEAL

S. GATEMBU KAIRU

…………………………

JUDGE OF APPEAL

A. K. MURGOR

…………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR