[2022] KEHC 10348 (KLR)

Muchanji v Musoka (Civil Appeal 28 of 2019) [2022] KEHC 10348 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10348 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 28 of 2019

WM Musyoka, J

May 13, 2022

Between

Protus Kulabi Muchanji

Appellant

and

Patrick Musoka

Respondent

Judgment

1. The suit before the primary court was by the appellant against the respondent, with respect to a claim of negligence, arising from an accident. The respondent allegedly negligently felled a large blue gum tree, which fell on a house belonging to the appellant. The appellant’s claim was that the destruction to his house was so extensive, it had to be reconstructed. He also alleged that there were six bags of cement that were damaged. He claimed general damages for the negligence, and special damages of Kshs. 8, 100. 00, being the value of the damaged maize. The suit papers were served, but the respondent did not enter appearance, and interlocutory judgment was entered. The matter proceeded to formal proof, and judgment was entered in favour of the appellant for Kshs. 131, 140. 00, being Kshs. 123, 040. 00 for reconstruction of the house, plus Kshs. 8, 100. 00 special damages.

2. The judgment delivered by Hon. C. Kendagor, Acting Senior Resident Magistrate, on 4th December 2013, was set aside in a ruling delivered on 16th March 2017. The second judgment was delivered on 20th February 2019 by Hon. TM Mwangi, Senior Principal Magistrate, wherein the suit was dismissed. It would appear that the appeal herein arises from the judgment of 20th February 2019. The appellant was aggrieved by the judgment. He raises three grounds. One, that the judgment was pronounced in the absence of the appellant or his advocates. Two, delaying pronouncement of the judgment for over sixty days. Three, that the evidence of the witness for the appellant had not been controverted.

3. Directions were given on 16th September 2021, for disposal of the appeal by way of written submissions. I have seen on record a copy of written submissions by the appellant, but not by the respondent.

4. The first two grounds can be taken together, as they are related. That is that is that the judgment was delivered in the absence of the parties, and way out of the time prescribed under Order 21 rule 1 of the Civil Procedure Rules. The appellant has cited the Court of Appeal, in Mburugu vs. Fidelity Shield Insurance Company Limited[2006] 1 KLR 164 (Tunoi, O’Kubasu & Onyango-Otieno JJA), where it was held that non-compliance with the rule should not be a ground for vitiating a duly delivered judgment. It was stated that the same should merely attract a censure of the judicial officer involved.

5. The last ground goes to the merit of the judgement, that the finding by the trial court, that the appellant had not adduced sufficient evidence, whereas he had in fact testified and called a witness, and their testimonies were not controverted by the respondent, who did not testify. The record shows that the appellant testified. He did not go to the particulars of his case, but merely indicated that he relied on his statement and photographs that he produced. He called a witness, who also did not adduce any facts, instead he pointed at his written statement, and referred to the photographs produced by the appellant.

6. In his written statement, the appellant stated that he had received a report that a tree had been felled on his house. He went home, and confirmed that a tree had fallen on his house. He found the respondent on the scene who apologized, and promised to build her another house. He accepted the apology, and to allow the respondent to reconstruct the house, but the respondent did not do as promised. He then got an Advocate to write a demand letter to the respondent, and eventually to file suit. He also stated that there was unshelled maize in the house, which was damaged by the tree. It had allegedly rained heavily, and there was no space for removing the maize after the tree fell. He put the amount of the maize as six bags, whose value he put at Kshs. 8, 100. 00.

7. The witness, Paul Asutsa, in his written statement, stated that he got a report that a tree, felled by the respondent, had fallen on the house of the appellant. He visited the scene and witnessed for himself the damage caused to the house by the tree. He visited the respondent at his home the following day, and he admitted the incident, and offered to enter into dialogue with the appellant. When he visited him later, the respondent declined to reconstruct the house, saying that the appellant had visited an Advocate with a view of suing him.

8. After reviewing the recorded evidence, the trial court was of the view that no one testified who was an eyewitness to the incident, yet the appellant had recorded that his son and cousin were present. Consequently, according to the court, there was no evidence that anyone saw the respondent cut the tree, and that as a result it fell on the appellant’s house. The court noted that the evidence presented by the appellant was not controverted, but it was largely hearsay evidence, because it was founded on what he was told had happened. It was stated that the hearsay evidence needed to be corroborated. Secondly, his case for general damages for reconstruction of the house was not proved, for the appellant did not present an estimate of the money he would have required to rebuild the house.

9. The appellant, in his written submissions, argues that the trial court did not record a concise statement of the case, did not draw issues, did not record its decision and did not give reasons for the decision. I have gone through the judgment. It is a brief and concise one. I am satisfied that it complied with Order 21 Rule 4. Paragraphs one, two and three of the judgment state the cases of both parties. Paragraphs three and four summarise and recite the testimonies of the appellant and his witness, and also analyse that evidence. It is true that the trial court did not frame the issues, but it is clear from the body of the judgment that the court was very clear on the case that it was handling, and the issues it had to consider. On the decision, and the reasons therefor, the record is clear. The decision was that the appellant did not prove his case to the required standard. Why? One, because the witnesses who testified gave hearsay testimony. Two, the estimates of the expense of reconstructing the house were not placed before the court.

10. The appellant, in his written submissions, appears to hold the notion that since the respondent did not attend court to give evidence to support his defence, and to cross-examine him on his evidence, then the trial court ought to have simply allowed the case. The hearing that the trial court conducted was not formal proof, where there was an interlocutory judgment already on liability. It was different from the case that Hon. Kendagor had handled earlier. The matter was for inter partes hearing. Burden of proof was no doubt higher than was the case before Hon. Kendagor. The appellant was obliged to establish liability on the part of the respondent, which he did not, for he did not call the witnesses who were present when the tree was being felled.

11. Fundamentally, the claim was founded on physical damage to a house. Physical damage to a house is quantifiable. Quantifiable loss or damage is capable of being liquidated. Liquidated damage is special damage, and calls for a claim for special damages. It is trite that special damages must not only be specifically pleaded, they must also be specifically proved. The suit was fatally flawed, to the extent that it sought general damages, instead of special damages. Proof of the special damage, in terms of the material damage to the house, would have required an assessment of the material loss suffered, being the value of the house both before and after the damage. That would have required a report from experts, of the estimated cost of either repairing the house to restore it to its former state, or the total cost of putting up a house of similar nature. There was clearly no basis upon which the trial court could assess special damages when faced with a claim for general damages. In any case, there was no proof of the material damage inflicted, which the respondent would have been called upon to make good. .

12. The same applies with respect to the unshelled maize. Other than the oral testimony, there is no concrete evidence that there was maize of that quantity in that house. No pictures were presented to the court of the maize. No agricultural officer prepared a report on the maize, making an estimate of the value of the same.

13. There is clearly no material upon which the trial court could find in favour of the appellant, and I do not, in the circumstances find any basis for upsetting the judgment on record. The appeal has no merits, and I hereby dismiss the same. The respondent did not participate actively in the appeal, and I shall, therefore, not award any costs. .

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Mukabwa, instructed by SB Mukabwa & Co., Advocates, for the appellant.Mr. Abok, instructed by Abok Odhiambo & Co., Advocates, for the respondents.