[2016] KEHC 7765 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT ELDORET

CIVIL APPEAL NO. 163 OF 2009

MICHAEL KIMANI MUNYAKA………............1ST APPELLANT

NATION MEDIA GROUP……………………..2ND APPELLANT

VERSUS

ISAAC RUTO…………………............................RESPONDENT

(Being an appeal from the original judgment and decree of I. Maisiba, Resident Magistrate, in Eldoret CMCC No. 32 of 2008 delivered on 4th September 2009)

JUDGMENT

The appellants are aggrieved by the judgment of the lower court dated 4th September 2009. The appellants were the defendants in the lower court. The respondent sued for general and special damages arising out of a road traffic accident. He claimed that on 17th September 2007, the 1st appellant negligently drove the 2nd appellant’s pick-up truck registration number KAW 772G causing it to ram into the respondent’s matatu registration number KAQ 653D.

The parties agreed on liability at the ratio of 80% to 20% in favour of the respondent. After considering the evidence, the learned trial magistrate awarded the respondent the following sums: Kshs 125,581. 60 being cost of repairs; Kshs 5,000 for assessment fees; Kshs 28,000 for loss of user for fourteen days; Kshs 500 for a police abstract; and, Kshs 3,000 for a letter before action. The respondent was also granted costs and interest.

The appellant has challenged those findings through a memorandum of appeal dated 2nd October 2009. There are five grounds of appeal. They can be condensed into three. First, that the learned trial magistrate fell into error by awarding special damages which were not specifically pleaded; secondly, that the damages were exorbitant; and, thirdly, that the lower court erred in holding that the case was proved on a balance of probabilities.

The appeal is contested by the respondent. The respondent relied on his written submissions filed on 29th January 2015. He submitted that the appellants never called a witness to rebut his claim; that assessment of damages was based on documents produced by consent; and, that the 1st appellant was charged, pleaded guilty, and was fined for causing the accident. That was in Eldoret Chief Magistrates Criminal Case 2681 of 2007. It was the respondent’s case that the appellants cannot re-open the issue of liability in this appeal. I was implored to dismiss the appeal with costs.

On 31st May 2016, I heard brief oral submissions. Like I stated, the respondent relied on his written submissions. The appellants relied on a list of authorities dated 14th May 2012. The appellants’ learned counsel, Mr. Kamau, submitted that the entire appeal can be determined on one point: whether the special damages were specifically pleaded in the plaint. I have considered the memorandum of appeal, the record of appeal, the pleadings in the lower court, the evidence, the precedents and rival submissions.

This a first appeal to the High Court. It is thus an appeal on both facts and the law. I am required to re-evaluate all the evidence on record and to draw independent conclusions. There is a caveat because I have neither seen nor heard the witnesses. See Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] EA 123, Williamson Diamonds Ltd v Brown [1970] EA 1, Mwanasokoni v Kenya Bus Services Ltd[1985] KLR 931.

There was no contest about the occurrence of the accident; or, that the respondent’s vehicle was extensively damaged. Doubt is removed completely by the 1st appellant’s plea of guilty in Eldoret Chief Magistrates Criminal Case 2681 of 2007; and, the assessment report and estimate of repair costs by Wareng Auto Insurance Loss Assesors (exhibits 10 [a] and [b]). Furthermore, on 22nd May 2009, the parties recorded consent in the following terms: the police abstract was admitted as exhibit 7; and, liability was agreed in the fraction of 80% to 20% in favour of the respondent. The only live matter in this appeal is whether the respondent proved the damages.

This claim was principally for special damages. It is trite that special damages must be specifically pleaded; and, strictly proved. See Kampala City Council v Nakaye [1972] E.A 446, Coast Bus Service limited v Sisco E. Murunga and others, Nairobi, Court of Appeal, Civil Appeal 192 of 1992 (unreported). The degree of certainty and particularity of proof depends on the circumstances and nature of the acts themselves. See Hahn v Singh [1985] KLR 716. In the present case, the damage to the respondent’s vehicle was certain; and, thespecific costs of repairs or loss of use were known. The respondent was thus obligated to plead specifically to those amounts.

I have carefully studied the claim. The respondent filed a plaint dated 14th February 2008. At paragraphs 6 and 7, he itemized nineteen areas of damage to his motor vehicle. But there was no specific sum of repair costs pleaded. There was also no specific sum claimed for loss of use. The only special damages specifically pleaded were two: Kshs 500 for a police abstract; and Kshs 3,000 for the demand letter before action. I have studied the record carefully. There is no evidence that the plaint was ever amended.

From the evidence of PW3, the motor vehicle assessor; and, exhibits 10 (a) and (b), there is no doubt that the repairs were estimated to cost Kshs 125, 581. 60. No receipt for the payment of repairs was produced. The assessor was paid Kshs 5,000 as fees. With great respect to the learned trial magistrate, the sums for repairs or assessment fees were not specifically pleaded. It followed that they could not be proved in evidence.

In his brief judgment, the learned trial magistrate also stated as follows: “I would award loss of user for 14 days at the reasonable rate of Kshs 2,000 per day which is Kshs 28,000”. Again, with great respect, the sum was not specifically pleaded; and, there was no evidential basis for the award. As I have observed, the only sums specifically pleaded and proved were two: Kshs 500 for the police abstract; and, Kshs 3,000 for the letter before action.

The upshot is that this appeal is allowed. The judgment and decree of the lower court are hereby set aside. Liability is entered by consent against the appellant at the ratio of 80% to 20% in favour of the respondent. The awards of special damages of Kshs 125,581. 60 for cost of repairs; Kshs 5,000 as assessment fees; and, Kshs 28,000 for loss of user are all set aside. Instead, there shall be judgment in favour of the respondent against the appellants for Kshs 3,500 only being the cost of the police abstract and the letter before action.

Costs follow the event and are at the discretion of the court. In the interests of justice; and considering the predicament the respondent finds himself in; I order that each party shall bear its own costs both in the lower court and in this appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 28th day of June 2016.

GEORGE KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

No appearance by counsel for the appellants.

Mr. Isaac Ruto (in person).

Mr. J. Kemboi, Court clerk.