[2023] KEHC 27544 (KLR)

Mwakureherwa v Jubilee Jumbo Hardware Limited (Civil Appeal E245 of 2021) [2023] KEHC 27544 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27544 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E245 of 2021

F Wangari, J

November 17, 2023

Between

Halima Said Mwakureherwa

Appellant

and

Jubilee Jumbo Hardware Limited

Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. E. Muchoki, Resident Magistrate dated 14/12/2021 arising from Mombasa CMCC No. 1021 of 2019.

2. The Memorandum of Appeal substantially raises the following Grounds:a.The Trial Court erred in failing to Award the Appellant full costs if repairs.b.The Trial Court misapprehended the evidence in arriving at partial finding for the on repair costs Kshs. 28,500/= when Kshs. 65,420/- was proved.c.The Trial Court failed to appreciate the tenure of the pleadings filed by the Appellant.d.The Trial Court misapprehended the standard of proof in civil cases against the Appellant.e.The Trial Court erred in failing to appreciate stare decisis on liquidated claims.

3. The Plaint dated 2nd July 2019 claimed repair costs and incidental expenses arising from an accident that occurred on 17/10/2016 in which the Respondent’s Motor Vehicle Registration Number KBE 260P is said to have negligently rammed into the Appellant’s Motor vehicle registration No. KTWB 316A PIAGGIO along Mombasa Nairobi Highway at Kibarani Area.

4. The Plaintiff set forth particulars of negligence for the accident motor vehicle. The Plaintiff pleaded Kshs. 110,970/= as Special Damages and interest and costs.

5. The Appellants entered appearance and filed the Statement of Defence denying the particulars of negligence and injuries pleaded in the Plaint. The Trial Court heard the parties and proceeded to render judgement on 14th December 2021.

6. In the Judgement, the Court awarded the Plaintiff as follows:a.Cost of repairs Kshs. 28,500/=b.Loss of user Kshs. 15,000/=c.Towing charges Kshs. 9000/=d.Police abstract Kshs. 200/=e.Motor vehicle Kshs. 550/=Total Kshs. 53,250/.

7. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this appeal.

The Appellants’ case 8. The Plaintiff testified in court and adopted her witness statement where she reiterated the averments in the Plaint and blamed the Defendant for the accident and damage caused to her three wheeler motor vehicle. She also produced receipts in support of the special damages.

9. The Plaintiff also called the driver of Motor Vehicle Registration Number KTWB 316A as a witness who was in charge of the motor vehicle. The witness stated that the driver of Motor Vehicle Registration Number KBE 206P violently and negligently hit Motor Vehicle Registration Number KTWB 316A hence the accident.

10. Further, the Police Officer testified that the driver of the lorry was to blame. The motor vehicle Assessor also testified in Court in support of the Plaintiff’s case. He produced his report and it was his case that the damaged Tuktuk cost Kshs. 56,447. 20 for repair cost inclusive of spare parts.

11. The Defendant closed their case without calling any witness.

The Appellants’ Submissions. 12. The Appellant filed submissions on 21st March 2023. It was submitted that the trial court erred in the assessment of special damages constituting cost of repairs and misapprehended the evidence produced by the Appellant. It was the submission of counsel that the special damages were well pleaded and proved by way of the receipts produced in Court. Reference was made to an array of receipts produced as exhibits. The Appellant relied inter alai on the case of Montrex Knitwear Mills Ltd, Milimani HCC No. 834 of 2002.

13. Counsel further submitted that the Appellant’s case had not been controverted as the Respondent did not call any witnesses. Cited in support of this argument were authorities of Joseph Kariuki v Robert Sila Muthini Civil Appeal No. E047 of 2021 and Kenya Power & Lighting Company v Rassul Nzembe (2020) eKLR.

14. I have not had sight of the Respondent’s submissions despite directions that both parties file and exchange submissions.

Analysis 15. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

16. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

17. 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..."

18. This Appeal is on quantum only. The issue is whether the Learned Trial Magistrate erred in her assessment of the special damages pleaded and proved by the Appellant.

19. The Appellant submitted that the Trial Court misapprehended evidence and ended up to an erroneous award of cost of repairs without regard to the documentary evidence produced in Court.

20. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.

21. Furthermore, in light with the Motor Vehicle Assessor’s Report produced in evidence in this court, it is trite low that it guides the court but is necessarily binding. In Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

22. There is no dispute that the Respondent caused the accident in which Appellant’s motor vehicle was damaged. It is also not in contest that the Appellant incurred costs in repairs and spare parts to revamp the motor vehicle after the accident. I note that the main grievance laid down by the Appellant is that the Trial Court undervalued the special damages that were pleaded and proved.

23. This is not a case for general damages. The submissions by counsel for the Appellant are largely based on the principles applicable to general damages incorporating the award as inordinately high or low. This is erroneous. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates.

24. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 where it was stated that:“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”

25. Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved.

26. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru, J held that:“In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore, in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…There ought to be a distinction between past pecuniary losses or expenses already incurred and could easily be calculated by say reference to receipts obtained and anticipated future pecuniary loss or expenses which is continuing and which though one may know the multiplicand you will not normally know how long the loss will take. Such an anticipated loss is general damage, which must of necessity await the completion of the suit to be assessed by the Court. Special damages on the other hand is calculable at the date of the trial out of which a round figure will be obtained. General damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special damages on the other hand, are such as the law will infer, from the nature of the act. They do not follow in the ordinary course but are exceptional in their character and, therefore, they must be claimed specifically and proved strictly…Specific loss of profits consequential upon the loss of use of an article for a specific period to the date of the plaint is special damage, which must be pleaded. However, in certain circumstances loss of profits could be included within a claim for general damages…General damages consist of the nature of prospective loss of income while special damages consist of out of pocket expenses and loss of earnings or income incurred down to the date of trial and is generally capable of substantially exact calculation. Where damages have become crystallized and concrete since the wrong the defendant could be surprised at the trial by the detail of its amount.”

27. Regarding proof of loss, while it is true that that it is trite law that special damages must not only be specifically pleaded but also strictly proved, what amounts to strict proof must depend on the circumstances that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.

28. The Trial Court stated as follows in its award of the special damages:…The plaintiff paid a sum of Kshs. 5,800/- for assessment report and produced receipt in court. According to the receipt dated 8th November 2016, the Plaintiff paid to Fazal Garage Kshs. 28,500 for labour and spares. The Plaintiff paid Kshs. 9,000/- for towing charges and produced receipts dated 18th October 2016 and 18th November 2016. A sum of Kshs. 550/- was paid by the Plaintiff for motor vehicle copy of records.

29. The court ended up awarding as follows:f.Cost of repairs Kshs. 28,500/=g.Loss of user Kshs. 15,000/=h.Towing charges Kshs. 9000/=i.Police abstract Kshs. 200/=j.Motor vehicle search Kshs. 550/=Total Kshs. 53,250/.

30. This court is alive to the position that degree of certainty and particularity of proof required depends on the circumstances and the nature of acts complained of. The Court of Appeal in Jackson K Kiptoo vs. The Hon Attorney General [2009] KLR 657 stipulated that:“The court is conscious that the degree of certainty and particularity of proof required depends on the circumstances and the nature of acts complained of.”

31. Therefore, in my reevaluation of the evidence, I proceed to take into consideration the trial court’s award against the Appellant’s pleaded and proved claim. I note that the Appellant pleaded cost of repair of Kshs. 65,420 and the court awarded Kshs. 28,500/- for cost of repairs. Similarly, loss of use pleaded was Kshs. 30,000/= but the court awarded Kshs. 15,000/=.

32. I have carefully analyzed the pleadings and the evidence produced before the Trial Court. I note that the Appellant, in her Plaint pleaded for the cost of repairs. During the trial, the Plaintiff produced receipts for the cost of repairs amounting to Kshs. 58,500/- and cost of spare parts of Kshs. 36,920/=. This should be the sum of what was claimed for cost of repairs as Kshs. 65, 420/=.

33. In Hahn vs. Singh, Civil Appeal No.. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

34. Consequently, I am unable to find any manner in which the trial court misapprehended the pleadings and evidence. The truth of the matter is that the Appellant only pleaded special damages for the cost of repairs. She did not plead the cost of spare parts. Special damages must be specifically pleaded and strictly proved. The court was not entitled to plead and award special damages which were not outlined in the Plaint. The damages may have been proved but they were not pleaded in the first place. For this reason, I disallow the Appeal.

35. The Appellant did not Appeal against the damages awarded for loss of use. I will not disturb the award under this head.

Determination 36. In the upshot, I make the following orders: -a.The Appeal is dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023. ………………………F. WANGARIJUDGEIn the presence of: -Ms. Lang’at Advocate for the AppellantOwino Advocate h/b for Timami Advocate for the RespondentBarile, Court Assistant