[2023] KEHC 22972 (KLR)

Ndaba v University of Nairobi (Commercial Case E088 of 2019) [2023] KEHC 22972 (KLR) (Commercial and Tax) (2 October 2023) (Judgment)

Neutral citation: [2023] KEHC 22972 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E088 of 2019

JWW Mong'are, J

October 2, 2023

Between

Simon Njenga Ndaba

Plaintiff

and

University Of Nairobi

Defendant

Judgment

1. On 10th of April 2019 the plaintiff moved this honourable court by a plaint seeking the following prayers against the Defendant:-a.Order for specific performance being;i.Thedefendant be ordered to pay taxes on Motor Vehicle KAL 624 G to KRA.ii.The defendant to provide ownership documents to the plaintiff upon payment of taxes.b.Damages on loss of user and income from October 2010 @10,000 per day.c.Costs of this suit.d.Any other further relief this court deems fit to grant.

2. The defendant upon being served, filed a defence on January 20, 2020 with the leave of the court as the same was filed out of time. The matter proceeded to full trial and each side called one witness to testify and produce their bundle of documents in evidence.

3. The Plaintiff, Mr. Simon Njenga Ndaba testified as PW1. He adopted his witness statement dated April 10, 2019as his evidence in chief and produced as exhibits the bundle of the plaintiff’s documents dated April 10, 2019and the same were marked as plaintiff’s exhibits 1-11. PW1 testified that pursuant to an advert by thedefendant, the University of Nairobi, he bid and won the tender for the purchase of various motor vehicles and was on May 4, 2010given the Notification of Award by the Defendant and was required to pay for the sum Kshs.610,000/- for three vehicles; Motor Vehicle number KAB 405, Toyota, was priced at Kshs.165,000/-, Vehicle Number KAL 624G Kshs.320,000/- and Vehicle number KAG 909G Kshs.125,000/-.

4. The Plaintiff testified that he paid for the vehicles as follows;a.10/8/2010- Kshs.30,000/-b.5/7/2010 Kshs.130,000/-c.19/7/2010 Kshs.93,000/-d.18/12/2009 Kshs.92,000/-e.16/12/2009 Kshs.32,000/-f.18/12/2009 Kshs.25,000/-g.18/12/2009 Kshs.12,500/-h.18/12/2009 Kshs.16,500/-The plaintiff in his bundle of documents also produced the receipts as proof of payment for the three vehicles and the same were marked as plaintiff’s exhibit 3(A-G).

5. The plaintiff produced the copy of the logbook for KAG 624G and the gate pass issued by the university when he collected the said motor vehicle. He informed the court that when he took the motor vehicle for registration, he was unable to transfer the same as he was advised that the vehicle had unpaid duty which was to be collected by KRA being affecting the transfer to himself. He produced several letters he wrote to thedefendant asking them to have the import duty paid to allow him transfer the vehicle and put the vehicle into the use he had purchased the vehicle for. He stated that to date, he is yet to use the vehicle since the duty remains unpaid.

6. Theplaintiff testified that his plans for buying the vehicle was to put it to use for business. He had plans to use the car for tours and travel and being a Prado, he could fetch between Kshs. 10,000-15,000 daily, if the vehicle was hired. He urged the court to find that he lost the opportunity to do so and award him Kshs. 10,000 from 2010 to date for loss of user for the vehicle. He produced photographs as evidence of the vehicle.During cross examination, the plaintiff stated that the defendant did not inform him that the vehicle had unpaid duty on it.

7. The defendant called one witness. DW1 was Thomas Tenai who informed the court that he was the transport officer of the defendant. He confirmed that he had written a witness statement which he adopted as his evidence in chief dated July 13, 2021. He confirmed to the court that he was familiar with the suit as he had been the Transport officer even when the plaintiff purchased the vehicles from the defendant. In his testimony, he informed the court that it was the duty of the plaintiff to pay the duty upon the completion of the purchase agreement and that the information was provided to the bidders in the bidding documents.

8. DW1 testified that these vehicles had been donated to the defendant under a project funded by CIDA who being a development agency were allowed to bring vehicles to the country duty free and once the motor vehicle was sold all documents were handed over to the buyer to deal with the transfer and registration in his name. He confirmed during cross examination that his role as a transportation manager at the University included identifying vehicles for disposal and once that was done, he handed over the list to the Procurement Department to deal with advertisement and disposal. He confirmed that this was a different department from Transport. DW1 did not produce the tender document or the release letter issued to the Plaintiff after buying the vehicle. He also confirmed that other documents such as the logbook were kept by the Finance Department and not the Transport Department. He, however, testified that the defendant sold the vehicle subject matter of the suit to the plaintiff and that his office was involved in the handover of the vehicle and the documents to the plaintiff. He confirmed that the vehicle was sold in July 2010 and the defendant wrote to KRA in 2017 confirming that the vehicle had been sold to the Plaintiff. He testified that even without the taxes having being settled the Plaintiff could use the vehicle because the taxes were necessary for transfer and not for the use of the vehicle. He urged the court to dismiss the suit.

Analysis and Determination 9. I have carefully considered the pleadings filed by theplaintiff and the defence. The sale of the various motor vehicles to the plaintiff by the defendant is not in dispute. The issue for the court to determine is “whose duty was it to settle the import duty on the said motor vehicle and if theplaintiff is entitled to compensation for loss of user.”

10. The plaintiff admits to have purchased the vehicle once the same was advertised by the defendant for disposal. The Plaintiff has attached receipts as evidence of payment for the vehicles from thedefendant. This aspect of the sale is not therefore in dispute. However, neither theplaintiff nor the defendant availed to the court the contract or the tender documents to confirm what the conditions of sale were, and if the Plaintiff had been made aware that one vehicle required him to have the import duty paid before registration of the transfer. The university availed in its evidence the letter of notification of award for the purchase of the vehicles. The letter was dated May 4, 2010and it gave the plaintiff 21 days to collect the vehicle. Thedefendant also provided to the plaintiff a duly signed transfer forms for the vehicle that were given to the buyer.

11. Before filing the suit in 2017, the plaintiff wrote formally to the plaintiff raising the issue of unpaid import duty on the vehicle and also sought compensation for the loss of user of the vehicle. As at that time, the plaintiff estimated to have lost at least Kshs.30,694,000/- which he could have made had he put the vehicle to the purpose for which he had purchased it for.

12. I have considered the evidence placed before me in this matter. As stated earlier, it would have helped the court if it was to be provided with the tender document or the document to determine what the terms of sale. The plaintiff places the blame on the defendant while the defendant insists that the plaintiff was made aware that he was to pay the import duty in order to transfer the vehicle. In the absence of the tender document whose maker, and therefore custody of was the defendant, I find on a balance of probability that it is possible that the duty to pay the import duty may have been that of thedefendant. On this issue I find and hold that the defendant is responsible to ensure that the vehicles sold were transferable by the purchaser. The defendant is therefore ordered to pay the duties outstanding on Motor Vehicle Registration number KAL 624 G to KRA.

13. The plaintiff has also asked the court to grant him special damages for loss of user. Theplaintiff claims that he intended to use the vehicle as a car hire vehicle and would have made a daily return of Kshs. 10,000-15,000. He alleges that he was unable to do so since the he could not transfer the vehicle. As held in the Court of Appeal, a claim for loss of user must be proved with evidence just like a claim for special damages. It requires more than mere assertions by a party that there is perceived general damages for loss of use of the property in question, in this case the vehicle. The Court of Appeal in Civil Appeal no. 283 of 1996, (David Bagine v Martin Bundi) stated that damages which are claimed under the title “loss of user” are special damages which must be proved. The court stated as follows: -“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can”. These damages as pointed out earlier by us must be strictly proved.”The court further notes that the defendant took possession of the vehicle from the defendant in 2010 and waited for 9 years before moving to court to enforce his rights under the contract. The plaintiff appears to have done nothing to mitigate his loss. having paid for the vehicles in full, the plaintiff, if he required to use the vehicles, would have simply paid the import duty and filed a claim for its recovery as he has now done. Instead of waiting for 9 years to come to court for compensation. As the maxim goes, “delay defeats equity, or equity aids the vigilant not the indolent (Vigilantibus non dormientibus aequitas subvenit”).

14. In the case before this court, the plaintiff has placed no material before me to demonstrate how or where he found the figure of Kshs.10,000-15,000 per day for car of Prado vehicles. Neither has the Plaintiff provided any material to demonstrate that this is a business he has carried out before and that he was able to make the said money for hire of a similar vehicle. The claim for loss of user requires more than mere figures as stated in the decision of the court of appeal cited above to be established. I find therefore the Plaintiff has contributed greatly to his own loss and is not entitled to the compensation for loss of user as claimed.

15. In conclusion the court finds that the plaintiff has proved his case only one parameter; that the defendant be found liable for the payment of import duty on Motor vehicle KAL 624G. I however find that the claim for compensation for loss use of the said vehicle has not been proved to the required standard and I shall dismiss it.

16. Costs follow the event. The plaintiff has been partly successful in his suit against the defendant. I find therefore this is a good case where each party will bear its own costs in the matter.

Final Disposition 17. Judgment is therefore entered for the plaintiff against the defendant as follows:-a.Thatan order for specific performance is hereby granted directing the defendant to pay taxes to KRA import duty for Motor Vehicle KAL 624 G and avail the transfer documents to the Plaintiff.b.Each party to bear its own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF OCTOBER 2023………………………………..J. W. W. MONG’AREJUDGEIN THE PRESENCE OF;MS. KAMAU HOLDING BRIEF FOR KARIUKI FOR THE PLAINTIFF.MR. AKIDE S.C. FOR THE DEFENDANT.AMOS - COURT ASSISTANT