[2023] KEHC 18925 (KLR)

Kibanya v Mwandoto (Civil Appeal 32 of 2023) [2023] KEHC 18925 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 18925 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 32 of 2023

DKN Magare, J

June 22, 2023

Between

Peter Njiraini Kibanya

Claimant

and

Edward Mwandoto

Respondent

(An appeal against the Judgment and decree of Small Claims Court at Mombasa (Hon. V. Muthoni) delivered on 17th January, 2023 in MOMBASA SCCc Civil Case No. E131 of 2022. )

Judgment

1. This is an appeal against the Judgment and decree of Small Claims Court at Mombasa (Hon. V. Muthoni) delivered on 17th January, 2023 in MOMBASA SCCc Civil Case No. E131 of 2022. The Appellant filed a record of Appeal dated 17/4/2023.

Duty of court on issues of law 2. In the case of M/s Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the court of Appeal stated as follows regarding the duty of that court in second Appeals.“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).

3. The question of what constitutes a matter of law was dealt with in the case of Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13. 02. 2014,“it was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanor – is an issue of law.”

4. The duty of the 1st Appellant Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

5. The Court is to bear in now that if need her seen the witnesses.it is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

6. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

7. The trial court and this court will construct documents in a similar manner as there are no witnesses required to know the content of a document. Therefore, where the findings of the trial Court are consistent with the evidence generally, this Court should not interfere with the same.

8. At pages 1 and 2 is a 2 paragraph memorandum of Appeal. The Appeal is on grounds that there was no evidence of liability and on evidence of repairs and the court erred in exercise of discretion.

9. There was also a complaint of improper evaluation of evidence. The issue in this appeal is only one. Liability for the Accident.

Submissions 10. The Respondent supported the Judgment and stated that the burden of proof was not discharged. This also rely on various authorities. The Appellant on the other hand submitted that the circumstances lead to no other conclusion.

11. They also say the evidence was uncontroverted. They also rely on Section 62 of the Evidence Act. I am reminded that this court jurisdiction on Appeal is limited to matters of Law. The said section provides as follows: -“Oral evidence All facts, except the contents of documents, may be proved by oral evidence.”

12. In that contest, the court will not interfere with finding of foxes and conclusion thereof unless;(a)The conclusion is based on no evidence.(b)The conclusion on evidence is such that a No reasonable person can reach, given the circumstances of the case. This is further constrained by the fact that under Section 32 of the Small Claims Court Act, the Court is not bound by strict Rules of evidence. The Section provided as follows: -

13. This does not mean that the court below should base the decision on surmise of conjecture.

Pleadings 14. The Respondent denied liability and occurrence of the accident. They blamed the Appellant for negligence. The claimant was claiming for damages as a result of the insurance’s right of sub- rogation.

15. Three witnesses testified. This is the 2 witnessed for the claimant and the 1st Respondent. On 23/11/2022 the Respondent admitted to be the owner of the suit motor vehicle and as a result the 2nd and 3rd respondents were struck out.

16. During cross examination the issue of ownership came up again. The second witness was from the insurers. The payment was done under the insurance lien. This was per the assessment report.

17. The Respondent testified that he tried to avoid an oncoming vehicle on his lane. He blamed the oncoming vehicle. It is instructive that he did not blame the appellant. He had no evidence of such a vehicle. The police abstract has only two vehicles that is KCW 967N and KCCC 802H.

18. At the end of testimony on one blamed motor vehicle Registration No. KCW 967W. The Evidence that KCC 802 H was to blame had not been rebutted. The two defences raised by the Respondent were not proved, that is;(a)Nonoccurrence of the accident.(b)The blame of motor vehicle Registration No. KCCC802H.

19. The court took issue with the lack of a clear copy of the abstract. When the court ordered that the objection was overruled, Ipso fact, the abstract became evidence. The court made the following order: -“The objection is partially upheld. The witness is allowed to produce the abstract.The assessment report is to be produced as exhibit 1- 8”.

20. The issue of a clear copy is not on record. The police abstract is thus part of the evidence. The respondent also had an abstract. The court does not indicate whether it was produced. The court appeared constrained to find a reason to dismiss the claimant’s case. The decision reached was absolutely not based on evidence.

21. There was a police abstract produced as part of exhibits 1- 5. There were cheques for payment. For example payment for Elile Automatic assessors has a tax invoice of Ksh. 2,280. The policy number Headquarters /701/169300/2019 was pleaded and it is the same one on the police Abstract. The claim for 394,950 was specifically pleaded.

22. In the locus classicus case of David Bagine Vs Martin Bundi [1997] eKLR, the court of Appeal stated as doth: -“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in not circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can". These damages as pointed out earlier by us must be strictly proved. Having so erred, the learned judge proceeded to assess the same for a period of nearly three years. There the learned judge seriously erred. Damages for loss of user of a chattel can be limited (if proved) to a reasonable period which period in this instance could only have been the period during which the respondent's lorry could have been repaired plus some period that may have been required to assess the repair costs. There was no evidence before the learned judge of what period the vehicle would have needed for repairs or for assessment of repair costs. The learned judge quite erroneously proceeded to award general damages at the rate of Kshs.500/= per day from the date of accident until date of judgment.”

23. The fee note for Kshs. 5500 is accompanied by an ETR receipt. A sum of Kshs. 170,750 is vouchered on 26/10/2020. It is again vouchered on 2/10/2020. The invoice of 2280 is accompanied by an ETR receipt. The fee not for Kshs. 44,900/= is accompanied by ETR receipt for Kshs. 44,900/=.

24. There has never been law that payment, is to be evidenced by cash receipts.

25. The most important aspect is that there be proof of payment. I therefore find and hold, that the finding at a sum of Ksh. 394,950 was not proved was reached without any evidence.

26. In arriving at damages this court is bound by the authority of The High Court, pronounced itself succulently on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”

27. The foregoing statement had been ably set in in the case of shah versus Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

28. It is therefore a finding that the court was plainly wrong. It did not evaluate the evidence at all. She ignored all the evidence and proceed to frolics of her own. Her decision was on basis of no evidence.

Liability 29. The sad thing is the finding on liability. It is never the duty of the court to second guess itself. The court must make a decision one way or another.

30. The court is under duty to decide. The court cannot surmise or fluke on liability without analysis of evidence. There is no evidence showing how the court arrived at the speculative 100% percent. The court ought to decide firmly.

31. In this matter, the Appellant testified on how the accident occurred. The Respondent equally testified. However, the Respondent departed from its pleadings. In the Response the Respondent (who was the only remaining one), pleaded that the accident did not occur). If it occurred motor vehicle registration No. KCW 967N was to blame.

32. The first limb was dead on arrival as the accident was admitted to have occurred. The general denials of this nature, with prefabricating defences are a bare for being mere denial and a bane for increase of costs. Such are usually liable for dismissal or striking out.

33. In the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, the court of Appeal stated as doth: -“The main object of this rule and r.14 is to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite issues, and so diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing (per Jessel M. R. in Thorp v Holdworth (1876) 3 Ch. D. 637). This object is secured by requiring that each party in turn should fully admit or clearly deny every material allegation made against him. Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible”, (underling supplied).I will also add that the crucial deficiency of a general denial which I have already described, also applies to the evasive, inconsistent and contradictory alternative general traverse in he appellant’s defence. This was that if the respondent had extended any overdraft facilities without stating the amount involved, to the appellant which was moreover, denied, then the same and here again, without stating how and when, had been paid. Such a spurious pleading in the alternative cannot give any merit to the defence and so also makes it one which discloses no reasonable defence for all purposes including that of 0 6 r 13(1)(a).”

34. The defence of the nonoccurrence thus falls on the way side. Under Section 62 of the Evidence Act, a party is not bound to prove an admitted fact. The Section states: -“61. Facts admitted in civil proceedings No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may in its discretion require the facts admitted to be proved otherwise than by such admissions.”

35. A party is not bound to prove the issue of liability, when the Respondent has pleaded that an unknown party is to blame.

36. However, in court he blamed an unknown un-sued and unknowable Third Party. He did not, at any time blame the Appellant. Ipso facto, without the Third Party being part of this suit, the court has no authority to apportion contribution negligence with a nonparty.

37. In the circumstances, the 100% liability though not explained is correct. The upshot of the foregoing is that the court erred in law in dismissing the suit on basis of no evidence.

38. The court erred in law in failing to conclusively not determine liability and leaving it to speculation.

Determination. 39. The net effect of my finding is that I set aside the judgment of the trial court and in lieu thereof enter judgment for the Appellant against the Respondent as follows:-a.Judgment on 100% liability against the Respondent.b.Special damages of Ksh. 394,950 were pleaded and proved and as such award the same.c.Costs of Kshs. 60,000/= to the Appellant for the appeald.Costs of Kshs. 30,000/= to the Appellant in the small claims court.e.Interest on specials at court rate form the date of filing.f.30 days stay.g.Case closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 22ND DAY OF JUNE, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentCourt Assistant - Brian