[2023] KEHC 24002 (KLR)

Nduu v Kuu & another (Civil Appeal 8 of 2022) [2023] KEHC 24002 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24002 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 8 of 2022

SM Githinji, J

October 24, 2023

Between

Daniel Mwasya Nduu

Appellant

and

Bernard Wambua Kuu

1st Respondent

Acceler Global Logistics Ltd

2nd Respondent

(Being an Appeal of the Judgment of Honourable N.C.Adalo delivered in SRM No.300 of 2017 Mariakani on 25th January, 2022)

Judgment

1. This appeal emanates from the judgment and decree of Hon. N.C Adalo in Civil Case No. 300 of 2017 delivered on 25/1/2022 where judgment was entered in favour of the appellant in the following terms;a.Loss of motor vehicle Kshs. 850,000/=b.Special damages Kshs. 25,000/=c.Costs and interests

2. Aggrieved by the decision, the appellant lodged the instant appeal on the following grounds;1. That the learned magistrate misdirected herself in law in failing to award the claim of loss of user being Kshs. 1,615,497 that was uncontroverted.2. That the learned magistrate erred in law in disregarding all the documentary and testimonial evidence produced by the appellant of the estimated daily income of the motor vehicle.3. That the trial court misdirected itself in regard to the burden of proof in terms of informal business expenses.4. That the learned magistrate erred in law and in fact by determining that the appellant had failed to prove the claim on loss of user despite documentary and testimonial evidence.5. That the learned magistrate misdirected herself by failing to award the loss of user claim which was uncontroverted by the respondent.6. That the learned magistrate misdirected herself by Proceeding on the wrong principles when assessing damages to be awarded to the appellant on loss of user and failed to apply the applicable law.

Evidence at Trial 3. Pw1 Daniel Mwasya Nduu the plaintiff adopted his witness statement dated 23/06/2017 as his evidence in chief. He added that he bought motor vehicle Registration No. KCC 135R a Nissan Vannette which he used as a matatu as was registered with TATAMA Sacco. He produced as PEX 5 a receipt for payment to the Sacco. He testified that the motor vehicle had been involved in an accident on 12/02/2016 at Bonje area and he obtained police abstract which was produced as PEX-8. From the abstract Bernard Wambua who was the driver of motor vehicle KBB 476A/ZC 2679 was to blame for the accident. He added that he made Kshs. 3,000 a day from the motor vehicle and produced as PEX 2 a daily income book.

4. Pw2 Number 917772 PC Ann Wambui testified that on 30/02/2016 an accident occurred at 9:00 am in Bonje area involving Motor vehicle registration number KBP 476 A/ZC 2679 driven by Bernard Wambua Kuu and motor vehicle registration number KCC 135K driven by Mwanzia Muthama Munguti (deceased). She blamed the driver of the truck Bernard Kuu for the accident and that he was charged and convicted.

5. Pw3 Henry Matta Principal officer of Kibmatt Loss assessors produced as PEX 10 a loss assessment report dated 7/04/2016 which estimated the cost of repairing the motor vehicle vis a vis the pre accident value.

6. The plaintiff closed his case. The defendant also closed its case without calling any witnesses.

Analysis and Determination 7. This appeal was canvassed by way of written submissions. I have considered the appeal, submissions by parties and the authorities relied on. I have also perused the trial court’s record and the impugned judgment. This being a first appeal, it is by way of a retrial, and parties are entitled to this court’s reconsideration, reevaluation and reanalysis of the evidence on record to enable it reach at its own conclusion or decision. The court should however bear in mind that the trial court had the advantage of seeing the witnesses testify and give due allowance for that.

8. In Williamson Diamonds Ltd and another v Brown[1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

9. Although the appellant raised 6 grounds of appeal, in my view, only one ground counts since most of the grounds are repetitive. The ground is, whether the trial court was in order to deny the claim for loss of user. In the trial court, the appellant made a claim for loss of user at the rate of Kshs. 3,000 a day from the date of accident to the date of filing the suit. His evidence is that the motor vehicle was in the matatu business and would earn him Kshs. 3,000 a day. He produced as PEX 8 a police abstract which indicated that the motor vehicle was a matatu. Additionally, he produced PEX 5, a receipt of payment to Tatama Sacco, which is a public service vehicle Sacco. It is therefore safe at this point to make a conclusion that the motor vehicle was used for gainful purpose. The appellant further produced PEX 12, a daily records book to show the daily income generated by the matatu. The respondent on the other hand contends that there was no sufficient evidence to sustain the claim for loss of user.

10. I have considered the parties respective arguments on this issue. I have also perused the trial court’s record in this regard. The trial court held that the plaintiff laid no basis for the award of the sum of Kshs. 1,116,000 and the subsequent loss of user claim.

11. In Samuel Kariuki Nyangoti v Johaan Distelberger[2017] eKLR, where the appellant had claimed loss of user of his matatu which had been involved in an accident, the Court of Appeal stated:“(16)The damages claimed by the appellant were in the nature of pecuniary loss which the law does not presume to be the direct, natural or probable consequence of the accident since it is subject of ascertainment by court through evidence and the application of the law relating to the measure of damages. In personal injury cases, the loss of business profits and loss of future earning capacity are usually in the nature of general damages. The loss of use of a profit making chattel such as a lorry or matatu through an accident is similarly a claim in general damages. The standard of proof in such claims is on balance of probabilities and the principle of restitutio in integrum is applied in such cases.”

12. In Team for Kenya National Sports Complex & 2 others v. Chabari M’Ingaruni (Civil Appeal No. 293 of 1998), a claim for loss of use of a vehicle, a matatu, which had apparently been written off in an accident, was allowed for a period of six months although no supporting documentary proof by way of books of accounts had been produced, upon the court being satisfied that the vehicle was used as a means of earning income for the deceased plaintiff.

13. The above decisions are clear that loss of user of profit is in the nature of general damages and is proved on a balance of probabilities. The decisions also relate to commercial vehicles which were damaged and as a result the owners claimed loss of user. The decisions further agree that the owner of a damaged vehicle is entitled to compensation and courts have been liberal when quantifying damages for loss of user.

14. The claim of loss of user being a claim for general damages, its award by a trial court amounts to exercise of judicial discretion. An appellate court would not readily interfere with the trial court’s exercise of discretion unless it is shown that the court applied wrong principles of law; took into account irrelevant factors; failed to take into account a relevant factor or the award is inordinately high or low as to represent an erroneous estimate. In the case at bar, it is my finding that having established that the subject motor vehicle was used for gainful purposes as a matatu, it would only be fair to make an award for loss of user. The appellant claims for Kshs. 1,116,00 as the sum lost from the date of accident to the date of filing the suit. This claim is at the rate of Kshs. 3,000 per day.

15. However, the claim only concerns the gross income per day and no evidence was adduced as to the costs involved to arrive at net profit. I would imagine that the costs involved are such as the driver’s pay, licenses fee for the matatu business, sacco charges, motor vehicle service and repair charges, fuel costs, etc. The appellant lost out of the accident the net income and not the gross income from the business. To be fair to him I would place his net daily income at 1,500/= to award him half of the amount claimed as there are also some days the matatu would have reasonably been out of business while undergoing repairs or for some other reasons.

16. I therefore set aside the trial court’s finding that the claim for loss of user was not merited and allow the appeal by awarding the appellant the sum of Kshs. 558,000/=Kshs for loss of user in addition to the other damages which were granted by the lower court.

17. Costs will be in the cause.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 24TH DAY OF OCTOBER, 2023. ...................................S.M.GITHINJIJUDGEIn the Presence of; -1. Ms Lelu for the Respondent2. Mr Mutugi is for the AppellantMs Lelu; We apply for 30 days stay.Mr Mutugi; I have no objection.Court ; -30 days’ stay is granted....................................S.M.GITHINJIJUDGE24/10/2023