[2025] KEHC 6876 (KLR)

Miron v Momentum Credit Ltd (Commercial Appeal E186 of 2023) [2025] KEHC 6876 (KLR) (21 May 2025) (Judgment)

Neutral citation: [2025] KEHC 6876 (KLR)

Republic of Kenya

In the High Court at Kakamega

Commercial Appeal E186 of 2023

S Mbungi, J

May 21, 2025

Between

Tobias Odhiambo Miron

Appellant

and

Momentum Credit Ltd

Respondent

(Being an appeal arising from the judgment of the Honorable S.A Wayodi, Adjudicator/Resident Magistrate delivered on 27/06/2023 in Kakamega Chief Magistrate’s court Small Claim Comm. No. E186 of 2023)

Judgment

1. A claim was filed in the trial court by the appellant herein against the respondent seeking for judgment against the respondent for a sum of Kshs. 1,000,000/- and costs of the suit. The particulars of the claim were that the claimant(appellant herein) had taken a loan facility with the respondent using his motor vehicle as collateral, and despite their agreement that he would pay for the insurance cover and that the money would be included as part of his loan repayment, the respondent refused to issue a cover, occasioning financial loss on the part of the claimant who did not use his motor vehicle for the entire loan period.

2. The matter proceeded to full hearing and the trial magistrate held that the claimant had not proved to the court that his claim for insurance premium and the tracking fees was a precondition before the loan would be dispatched. She further held that the claimant had not proven the pleaded losses. The claim was thus dismissed with costs to the respondent.

3. The appellant being dissatisfied with the said judgment filed the present appeal vide a memorandum of appeal dated 27th July 2023 on the following grounds: -a.That the learned trial magistrate erred in law and fact in awarding costs of the claim to the respondent.b.That the learned trial magistrate erred in law and fact in misinterpreting Schedule 7 of the Advocates (Renumeration) Amendment No. 2 Order 2014. c.That the learned trial magistrate erred in law and fact in not appreciating the cost incurred by the Claimant in No. 1.

4. The appeal was admitted in accordance with Section 79B of the Civil Procedure Act and this court directed that it be canvassed by way of written submissions. At the time of writing this judgment, only the appellant had filed. The respondent never entered appearance in this matter.

Appellant’s case. 5. Vide his submissions dated 02. 04. 2024, the appellant submitted that the Learned Trial Magistrate erred in awarding costs to the respondent despite the overwhelming documentary evidence presented in the trial court. He argued that the decision to award costs had no legal basis given the circumstances of the case, and that, at the very least, the court should have ordered each party to bear its own costs.

6. The appellant further submitted that the trial magistrate failed to consider and properly interpret Schedule 7 of the Advocates (Remuneration) (Amendment) Order No. 2 of 2014. It was his contention that the awarding of costs was done contrary to the provisions of the said Schedule, and that the court misdirected itself on the applicable legal standard.

7. He also faulted the trial court for failing to appreciate the evidence he adduced to demonstrate the financial loss he had suffered as a result of the respondent’s failure to procure insurance coverage as agreed. He maintained that he had submitted documentary proof of the financial loss, and that this evidence was sufficient to meet the threshold of proof on a balance of probabilities.

8. The appellant prayed that the appeal be allowed with costs.

Analysis and Determination. 9. This being a first appeal, this court is under a duty to re-evaluate and re assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows:“…This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way...”

10. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

11. I have looked at the memorandum of appeal, the submissions by the appellant, the proceedings from the lower court and the trial court’s judgment.

12. The issue of determination is whether the appeal has merit.

13. The Respondent did not file an appearance neither put in a response to the appeal. However this does not take away the duty of the court to determine the appeal on merit See the case of Kindest Auctioneers v Orbit Chemicals Industries Limited (Miscellaneous Appeal E038 of 2023) [2023] KEELC 21782 (KLR) (13 November 2023) (Ruling) Neutral citation: [2023] KEELC 21782 (KLR)

14. I have looked at the claim filed by the appellant in lower court he sought for special damages for 1 million.

15. As correctly held by the lower court, special damages must be specifically pleaded and strictly proved.

16. The trial magistrate was guided by the following authorities In Kenya Women Microfinance Ltd Vs Martha Wangari KAMAU (2021) EKLR cited the case of Attorney General of Jamaica Vs Clerke (Tanya) (nee Tyrell), cooke J.A delivering the judgment of the court stated that special damages must be strictly proved. The court should be very wary to relax this principle, that what amounts to strict proof is to be determined by the cour tin the particular circumstances of the case and the court may consider the concept of reasonableness and the case of;

17. In Union Bank of Nigeria PLC Vs Alhaji ADAMS Ayabule & Another (2011) JELR 48225 (SC)(SC 221/2005(16/2/2011), Mahmud Mohammed, JSC delivering the judgment of the supreme court in Nigeria stated:-‘’I must emphasize that the law id firmly established that special damages must be pleaded with distinct particularly and strictly proved and as such a court id not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff…. Therefore, as afar as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives, a trial court may be entitled to. What the law required in such case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award’’.

18. The case proceeded by way of section 30 for the small claims court act.

19. I have looked at the claim filed by the appellant , he did not particularize the special damages, he just quoted a global figure of 1 million. He attempted particularize the special damages in his submissions.

20. Submissions are not pleadings, therefore a party cannot adduce evidence to prove or establish what he did not plead. On this Mwera, J had this to say in Erastus Wade Opande Vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 as held by G. V Odunga (as he then was) in Robert Ngande Kathathi Vs Francis Kivuva Kitonde (2020) eKLR.‘’ Submissions simply concretise and focus on each sides case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided’’And in the case of Desmond Kipruto Vs Brazille Simaro Musumba (2006) eKLR the court stated that‘’ It is trite law that where a party fails to plead the particulars of special damages and quantifies it, he cannot be heard to adduce evidence to prove or establish what he did not plead’’

21. Secondly he did not produce any receipt to show that he paid for the tracking fee for Ksh.36,000/= , that he hired a car for Ksh. 350,000/=, had any records to show that he lost business worth Ksh.500,000/-, and that he incurred further miscellaneous expenses for Ksh. 50,000/=.

22. I have looked at the loan agreement the appellant entered with the respondent, it’s the appellant who was to take care of the tracking of the vehicle see clause 6. 7 of the logbook loan agreement.

23. On the issue of the insurance premium for Khs. 30,000/= no proof has been provided and further the appellant has not produced any insurance financing agreement see clause 7. 1 of the logbook loan agreement it is the borrower (appellant) who was to ensure the collateral for the entire loan period.

24. Therefore, even if the special damages were specifically pleaded they have not been proved as required.

25. On the issue of costs, the appellant faults the trial magistrate for not saying that each party should bear its own costs, award of costs is discretionary for a court not to award costs there must be a good reason or a special circumstance should obtain like a public interest litigation or if the parties are family members etc.

26. I cannot fault the trial magistrate for awarding costs to the respondent for it is the appellant who dragged the respondent to court. The respondent incurred costs defending the suit. So in any event the respondent was entitled to costs for the costs follow the event.

27. Section 27 of the Civil Procedure Act which provides….. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. AND the case of Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR) (4 March 2014) where it was held ‘’…………It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation’’.

28. From the foregoing I find that the appeal has no merit, the same is dismissed with no orders to costs for the Respondent did not enter appearance or participate in the appeal.

29. Right of Appeal 30 days.

DATED , SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF MAY, 2025S.N MBUNGIJUDGEIn the presence of :Court Assistant – Elizabeth Angong’aAppellant present.