[2007] KEHC 745 (KLR)
The court found that the trial court erred in awarding loss of user as special damages in the absence of any evidence to support the claim. Since the vehicle was a total write-off, the respondent was only entitled to the pre-accident value less salvage, and not to additional damages for loss of user, as this would...
Source-derived case information.
- Citation
- [2007] KEHC 745 (KLR)
- Parties
- Appellant: Miwa Hauliers; Appellant: Moses Shikhokha Wetaba; Respondent: Godfrey Auma
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 109 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed; trial court judgment set aside; judgment entered for respondent for reduced sum.
- Legal Topics
- Material Damage, Loss of User, Special Damages, General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miwa Hauliers
Appellant
Moses Shikhokha Wetaba
Appellant
Godfrey Auma
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in awarding loss of user as special damages without proof.
- 2 Whether the towing charges were properly awarded in the absence of supporting evidence.
- 3 Whether awarding both pre-accident value and loss of user amounted to double compensation.
Ratio Decidendi
The court found that the trial court erred in awarding loss of user as special damages in the absence of any evidence to support the claim. Since the vehicle was a total write-off, the respondent was only entitled to the pre-accident value less salvage, and not to additional damages for loss of user, as this would amount to double compensation. Furthermore, the towing charges were disallowed as there was no receipt or proof of payment produced. The court therefore allowed the appeal, set aside the trial court's judgment, and entered judgment for the respondent for the pre-accident value less salvage and valuation report, subject to the agreed 10% contribution. Costs and interest were...
Court Disposition
Appeal allowed; trial court judgment set aside; judgment entered for respondent for reduced sum.
Orders
- Award of loss of user in the sum of Kshs 96,000 is disallowed.
- Towing charges in the sum of Kshs 10,000 are disallowed.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT ELDORET
CIVIL APPEAL 109 OF 2005
MIWA HAULIERS……………………….......…….. 1ST APPELLANT
MOSES SHIKHOKHA WETABA ........……………2ND APPELLANT
=VERSUS=
GODFREY AUMA ………………………..........…… RESPONDENT
JUDGMENT
This is an appeal against the decision of the Hon. Chief Magistrate Mrs. F.N. Muchemi in CMCC No. 249 of 2003 delivered on 21st October 2005.
In the said case which arose out of a road accident, the trial Court awarded a total sum of Kshs 315,000/= to the Defendant made up as follows:-
(a) Pre-accident value of motor vehicle Kshs 285,000/=
Less salvage of Kshs 45,000/=
…………. Kshs 240,000/=
(b) Towing charges …………. Kshs 10,000/=
(c) Valuation report …………. Kshs 4,000/=
(d) Loss of User ………… Kshs 96,000/=
_________________
Total Kshs 350,000/=
Less 10% contribution …………… 35,000/=
_________________
Kshs 315,000/=
==============
The parties had agreed on liability on the ratio of 90% - 10% in favour of Plaintiff.
This was a claim for material damage and loss of user. It is my view that the claim for loss of user is not special damages and it was irregular to include in the claim for special damages. A claim for loss of user could only be a claim in general damages and for determination by the Court.
I have also perused the proceedings and it is clear from the record that the Plaintiff did not lead or tender any evidence to prove loss of user. There is no evidence to show how the sum of Kshs 96,000/= was arrived at. In any event, the claim was on the basis that the vehicle was totally written-off. The claim therefore was specific and ascertained once there was total loss of the vehicle. The Plaintiff could only get the value of the vehicle at the time of the accident. To award damages under loss of user will amount to double compensation. There was no consequential damage after the write-off, unless one pleads it and proves it.
In the premises, I would disallow the award of loss of user in the sum of Kshs 96,000/=.
The towing charges in the sum of Kshs 10,000/= was not proven. No receipt was produced to prove payment. The Plaintiff merely referred to the plaint. This must also be disallowed.
I therefore do hereby allow the appeal and set aside the judgment. I do hereby enter judgment for the Plaintiff (Respondent) as follows:
(a) Pre-accident value of motor vehicle Kshs 285,000/=
Less salvage of Kshs 45,000/=
………….. Kshs 240,000/=
(b) Valuation Report ………….. Kshs 4,000/=
________________
Sub-total ………….Kshs 244,000/=
Less 10% contribution ………… Kshs 24,400/=
_________________
Total Kshs 219,600/=
==============
The Plaintiff shall be paid costs and interest on the said sum from the date of Judgment by the trial Court. Each party to bear his/its costs of this appeal.
DATED AT ELDORET THIS 5TH DAY OF NOVEMBER 2007.
M.K. IBRAHIM,
JUDGE.