[2022] KEHC 15753 (KLR)

Ndungu v M’Ikiao & another (Civil Appeal 182 of 2019) [2022] KEHC 15753 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15753 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 182 of 2019

RB Ngetich, J

November 15, 2022

Between

Samuel Wainaina Ndungu

Appellant

and

Mutwiri M’Ikiao

1st Respondent

Elius Mwaura Kamau

2nd Respondent

(An appeal from the judgment of the Senior Resident Magistrate’s Court at Ruiru, delivered on October 29, 2019 by Honorable C A Otieno Omondi in Ruiru CMCC No 71 of 2019)

Judgment

1. This appeal arises from a suit filed on May 9, 2019 by the appellant /plaintiff in the trial court through plaint dated May 7 2019 seeking special damages of kshs 440,3000/= being material damage of the appellant’s motor vehicle registration number KCA 657H which hit the pavement after colliding with the respondent’s motor vehicle registration number KUU 388 along Thika Highway at viewpoint area on May 11, 2016. The appellant also sought costs of the suit.

2. Consented on liability was recorded by parties at the ratio of 20: 80. The only issue for determination was on special damages.

3. After hearing, the trial court declined to award kshs 378,740/= indicating that an invoice and a payment requisition voucher cannot be used as proof of payment of the sum of kshs 378,740/=paid to Top Quality Limited and cited the case of Christine Mwigina Akonya Vs Samuel Kairu Chege (2017) where the court held that: -‘’ Courts have insisted that a party must present actual receipts of payments made to substance loss or economic injury. It is not enough for a party to provide proforma invoices sent to the party by a third party. In this regard, our courts have held that an invoice is not proof of payment and that only receipt meets the test. “

4. The trial court awarded a sum of Kshs 36,680/= as special damages pleaded and proved less 20% liability. The plaintiff was also awarded the costs and interests of the suit.

5. Aggrieved by the decision of the trial court, the appellant filed the memorandum of appeal citing the following grounds: -a.That the learned trial Magistrate erred in law and in fact in holding that payment vouchers produced by the appellant were not sufficient proof of special damages pleaded or at allb.The learned Magistrate’s finding on quantum was erroneous in law and in fact.

6. The appellant urged this court reverse the decision of the trial court on quantum and make orders it deems fit and just and award costs of the appeal.

7. Directions were taken to canvass the appeal through written submissions, with which both parties complied.

Appellant's submissions 8. Counsel for the appellant filed submissions dated October 18, 2021 on October 19, 2021 and submitted that the trial court erred in finding that payment vouchers adduced are not sufficient proof of payment of special damages and cited the case of Abdi Ali Dere vs Firoz Hussein Tundal & 2 Others (2013) eKLR the court held as follows: -“In our opinion, it is not correct to say, as the trial court did, that in all sundry cases a payment voucher cannot be evidence of payment. The term voucher derives from the word vouch meaning to confirm or assure. The term voucher in regard to payment has at least two distinct meanings. It can mean written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue an acknowledgement of payment. “

9. Counsel urged the court to find the voucher in this case acted as the confirmation for payment to top Quality Auto Ltd as the document has the cheque number of the cheque issued in respect to the payments and urged this court to allow the appeal.

Respondent's submissions 10. Counsel filed submissions on behalf of the respondent on September 30, 2021 and submitted that the trial magistrate took into account all the relevant factors to be considered in the case and the award given was fair and impartial to both parties; cited the case of Christine Mwigina Akonya vs Samuel Kairu Chege (2017) and urged this court to dismiss the appeal

Analysis and determination 11. This being the first appeal, I am obligated to re-evaluate the evidence of the trial court and come up with my own conclusion. I am however minded of the fact that unlike the trial court, I did not have the chance to hear witnesses and observe their demeanor and for this I give due allowance. This position was held in the case of Selle & Another vs Associated Motor Board Company Ltd [1968] EA 123, where the court held as follows: -“...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 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..."

12. In view of the above, I have perused proceedings before the trial court. I note that the appellant/plaintiff called one witness Joseph Karanja Muchiri the legal officer of CIC General Insurance. He adopted his witness statement dated April 24, 2019 as his evidence in chief as well as copies of his documents. He stated that their claim is for kshs 440,300/= as the damages from the defendants and also urged the court to grant costs and interest.

13. The defendant did not call any witnesses. The parties failed to comply with the orders of filing submissions by October 15, 2019.

14. The issue of liability was settled by consent of parties. I now wish to consider whether this court should interfere with the trial court’s award of damages. The appellant’s argument is that pro-forma invoice issued is enough proof of payment of the repair costs and proof of payment is supported by the cheque issued to Top Quality Auto Ltd.

15. In the case of Kemfro Africa Ltd t/a “Meru Express Services 1976” & Gathogo Kanini vs A M Lubia & Olive Lubia (1982-1988) IKAR 727 set out the principles of interfering with a trial court’s award as hereunder: -“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either the judge in assessing the damage took into account an irrelevant factor or left out of account a relevant one or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”.

16. The trial court in its finding opined that the pro-forma invoice is not sufficient proof of payment and failed to award the sum of kshs 378,740/=. The standard of proof required in civil cases is on a balance of probability. From the evidence adduced before the trial court, it is not disputed that the motor vehicle was taken to Top Quality Auto Garage for repairs following the accident. It is not disputed that the repairs were done. Assessment of damage was done and assessment report done; there are also repairs evaluation form which proves the repairs were done. Upon repairs, payment was expected to be made.

17. On perusal of claim payment requisition voucher dated July 28, 2016 for kshs 378,740/= from CIC, I note that it indicates cheque number as 265903 and shows it was authorized by CIC. From the foregoing, I am of the view there is sufficient proof of payment of the repairs costs to Top Quality Auto Ltd, the garage which repaired the vehicle. The trial magistrate’s finding that there was no prove of payment of the said amount was erroneous. Total payable to appellant is therefore kshs 378,740/= plus Kshs 36,680/= making a total of kshs 415,420/=.

18. From the foregoing, I do allow the appeal and set aside the judgment of the trial court dated October 29, 2019.

19. Final Orders: -1. Appeal is allowed.2. Special damages assessed at kshs 415,420/= less the 20% liability.3. Costs of the appeal to the appellant.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF NOVEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court assistantMr Gichuki holding brief for Ms Lucy Wangombe for appellantNo appearance for respondent.