[2022] KEHC 10050 (KLR)

Kitivo v Sifa Investments & another (Civil Appeal 269 of 2017) [2022] KEHC 10050 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10050 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 269 of 2017

GMA Dulu, J

July 7, 2022

Between

David P. Muthiani Kitivo

Appellant

and

Sifa Investments

1st Respondent

Salim Kwena Mwandia

2nd Respondent

(Being an appeal from the Judgment of Hon. H. Nyakweba (SRM) in Kilungu Senior Principal Magistrate’s court Civil Case No. 27 of 2009 delivered on 08/10/2010)

Judgment

1. This appeal arises from the dismissal of the suit of the appellant, (plaintiff in the trial court) by the trial magistrate in a judgment delivered on 8th October 2010, with costs to the respondent (defendants in the trial court).

2. Aggrieved by the decision of the trial court, the appellant has come to this court on appeal on the following grounds –1. The trial magistrate erred in law and in fact when he applied improper standards of proving the case instead of using the standard of balance of probabilities.2. The learned magistrate erred in law and in fact when he failed to appreciate that the case before him was proved on the balance of probabilities.3. The learned magistrate erred in law and in fact when he imposed irrelevant magistrates (standards) of proof in a case that was otherwise proved.4. The learned magistrate erred in law and fact when he substituted his own opinion to the case instead of sticking to the evidence given.5. The learned magistrate erred in law and in fact when he struck off the verifying affidavit without appreciating the whole law on affidavits.6. The learned magistrate erred in law and in fact when he failed to appreciate that a verifying affidavit is subject to the relevant provisions of the law under Cap. 21 and its rules.7. The learned magistrate erred in law and in fact when he dismissed the appellant’s case against the weight of the evidence.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by P.M Mutuku & company advocates for the appellant and Adera & company advocates for the respondents. I note that both sides relied on decided court cases.

4. The appeal is against the decision of the magistrate dismissing the appellant’s case. Thus it covers both liability and quantum of damages.

5. This being a first appeal, I have to start by reminding myself that I am duty bound to re-consider all the evidence on record and come to my own independent conclusions and inferences, as, though in this case there is a court finding of striking out the verifying affidavit, evidence had already been tendered through witnesses and the magistrate actually made findings on the evidence on record– see Selle –vs- Associated Boat Co. Ltd (1968) E.A.

6. The first issue is whether the magistrate was right in striking out the verifying affidavit at the very end of the judgment, which made the whole suit fatally defective. There is no denial that the verifying affidavit herein was not dated. Counsel for the appellant has argued on appeal that the plaint having been dated, the suit could not be termed as defective simply because the verifying affidavit, which was merely a document accompanying the plaint, was not dated.

7. Indeed, an affidavit is required under the law to be signed and dated. A number of times however, especially with cases involving voluminous pleadings, the affidavits are not dated by the lawyer swearing the same. Thus, though there was such a defect with regard to the absence of date in the affidavit herein, in my view; such defect should not have been a determinant factor in the whole proceedings. The first reason for so holding is that such issue of the defect of the affidavit should have been raised as a Preliminary Objection, and determined at preliminary stage before directions were given under Order 11 of the Civil Procedure Rules. No such preliminary issue was raised, so it means parties had no problem with the affidavit. Secondly, the issue was not even raised in cross-examination. Thus in my view, in accordance with the provisions of Article 50 of the Constitution on fair trial, and Article 159(2)(b) on the requirements for courts to determine matters on substantive justice, the trial court erred in using such a technicality to decide and dismiss the case. In my view therefore, the decision of the magistrate was wrong and an unfair ambush on all parties.

8. The second issue is determination of liability. With regard to liability, the magistrate found that the accident did occur and determined liability at 90:10 between the respondent and the appellant. The magistrate however, found that that plaintiff did not prove ownership of the motor vehicle.

9. Again, in my view, the magistrate erred on proof of ownership of the motor vehicle. This was because the standard of proof required in civil cases is on the balance of probabilities – that is if a person proves on the evidence, that what he alleges is more likely to be what it is than not, such person carries the day, or has discharged the burden of proof.

10. In the present case, the appellant (plaintiff) relied on the contents of the police abstract, and there was no suggestion from the respondent’s counsel, even in cross-examination, that the vehicle belonged to someone else. Thus the version of the appellant was more believable, and the burden of proof was thus discharged on the ownership of the vehicle.

11. Secondly, the denial of ownership in the defence statement was a mere allegation and remained an allegation, unless a witness of the respondent came to court to support the same. In the present case, the respondent chose not to call any witness, so their averments in the defence remained mere allegations and could not be used as a basis for determining the case. On that account also the trial court erred in finding that the appellant did not prove ownership of the vehicle.

12. I now turn to proof of damages, which is the third issue. The damages claimed herein are for towing costs, costs of repairs, and loss of business. These are in the nature of special damages. They had to be specifically pleaded and proved. From the evidence on record, in my view, the appellant did not prove loss of business on the balance of probabilities. The trial court was thus correct on this finding as the appellant did not tender any tangible evidence on the nature of business and income lost.

13. With regard to the receipts relied upon by the appellant for costs incurred for towing and repairs, the magistrate relied so much on the requirements for affixing revenue receipts and signatures. In my view, those were not correct parameters to be applied by the court, as in any event revenue receipts were actually affixed to the receipts herein.

14. Having myself however, perused the receipts relied upon, they do not either indicate the person they were issued to nor the motor vehicle to which they relate. In those circumstances, the appellant in my view did not prove on the balance of probabilities either that the receipts were issued to him, or that they were issued in respect of his motor vehicle, the subject of these proceedings. On that account therefore, he cannot recover the amounts in respect of alleged towing and repairs to the said motor vehicle, as he has not proved the said costs on the balance of probabilities.

15. I thus find that though the appellant proved liability in negligence against the respondent for the accident to the tune of 90%, he did not prove that he incurred costs or loss of business as a result of the accident. He cannot thus recover damages from the respondent as claimed.

16. Thus I uphold the findings of the trial court on negligence, but the appeal for payment of damages is hereby dismissed. Parties will bear their respective costs of the appeal.

DELIVERED, SIGNED & DATED THIS 7TH DAY OF JULY, 2022, VIRTUALLY AT MAKUENI COURT.………………………………….GEORGE DULUJUDGE