https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8770

Rongai v Omollo & another (Civil Appeal E043 of 2024) [2026] KEHC 8770 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8770 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E043 of 2024 LM Wachira, J June 19, 2026 Between Nova Ogoti Rongai Appellant and Erick Omollo 1st Respondent Victor Okello Achanjo 2nd Respondent (Being an appeal from the judgment of Hon. J. Wekesa, SPM delivered on the 7th February 2024 in Nyando PMCC No. E008 of 2022) Judgment Background 1.This is an appeal against the judgment and decree of Hon. J. M. Wekesa, Senior Principal Magistrate in Nyando No. E008 of 2022 delivered on 7th February 2024. 2.The Appellants case is that on or about the 22nd July 2021 his motor vehicle registration number KCY 037T was being lawfully driven along the Ahero – Kisumu Road at Korowe Area when the 1st Defendant’s motor vehicle registration number KBX 248K Mitsubushi FH was negligently, carelessly and or recklessly driven by the 2nd Defendant and it rammed into the Plaintiff’s motor-vehicle registration number KCY 037T and damaged it extensively. 3.The Parties agreed on liability wat the ratio of 75:25 in favour of the Plaintiff and against the Defendant. The plaintiff testified in court and produced the documents in support of the case. The parties then filed written submissions on quantum. 4.The trial Magistrate in her judgment delivered on the 7th February 2024, declined to allow the claim on depreciation, found that the daily earnings from the vehicle had not been proved to be Kshs.3,500/- and used an estimated daily earning of Kshs.1,500/- and that the duration of 10 months for loss of business had not been proved and instead used 163 days. 5.The Appellant was dissatisfied with the Judgment of the trial court and filed the instant appeal which was heard by way of written submissions. Appellant’s Submissions 6.The Appellant submits that the trial Magistrate erred in law and in fact in not finding that the Appellant has proved that the motor vehicle had depreciated by Kshs.1,300,000/-, that the Appellant had proved that he was earning Kshs 3,500/- per day using the vehicle as opposed to Kshs.1,500/- and that he had lost business to the tune of 1,080,000/- for a duration of 10 months that the vehicle could not operate until he sold it. 7.The Appellant urged the court to set aside the judgment of the trial court and instead enter judgment for the plaintiff/Appellant as was sought in the plaint. Respondent’s Submissions 8.The Respondents case is that there was no proof of the depreciation. That although this was pleaded, no evidence was availed in proof. On the daily earnings of Kshs.3,500/-, the Respondent submitted that the Appellant just produced Mpesa statements in Court without explaining how the figure of Kshs.3,500/- was arrived at. The Respondent urged the court to find that the Appellant had not proved his case and dismiss the Appeal. Issues for Determination 9.The Appellant has filed a Memorandum of Appeal with 10 grounds of Appeal but which have been condensed to four in the submissions filed in court. The four issues listed for determination by the court are as follows:-a.Whether the Learned Trial Magistrate erred in Law and in fact in finding that the Appellant/Plaintiff had failed to prove his claim on account of damages for depreciation of value of the suit motor vehicle registration number KCY 037T to the tune of Kshs.1,300,000/=.b.Whether the Learned Trial Magistrate erred in Law and in fact in failing to find that the Appellant/ Plaintiff proved by M Pesa Statements and other evidence produced that from the suit motor vehicle registration number KCY 037T, he used to earn an average income of Ksh.3,500/= per day and not Ksh.1,500/=, which was the income that he lost on account of the material damages caused to his suit motor-vehicle by the Respondents/Defendants.c.Whether the Learned Trial Magistrate erred in Law and in Fact in failing to find that proper assessment for the Appellant/ Plaintiff lost business was for a period of 10 months, being the period between the date of the accident on 22nd July 2021, to the date when he disposed of the suit motor vehicle on 11th November 2021, as opposed to the period of 5 months and 10 days which the trial Magistrate found to be the duration of the Appellant’s/ Plaintiff’s loss of business.d.Whether the Appellant is entitled to General damages for loss of Income? Analysis And Determination 10.This being the first appeal I have a duty to consider the evidence adduced before the trial court, evaluate it and draw my own conclusions making allowance to the fact that I did not have the opportunity to see and hear the witnesses testify as enunciated in Simon Muchemi Atako & Another v Gordon Osore[2013] eKLR. Whether the Learned Trial Magistrate erred in Law and in fact in finding that the Appellant/Plaintiff had failed to prove his claim on account of damages for depreciation of value of the suit motor vehicle registration number KCY 037T to the tune of Kshs.1,300,000/=. 11.On this, the Appellant produced in court as Exhibit 10 the Valuation report dated 10th June 2020 by Ms. Regent Automobile Valuers and Assessors Ltd. The Report shown the value of the vehicle as at that date as Kshs.2,800,000/-. 12.The accident herein took place on the 22/7/2021. The vehicle was valued again on the 5/10/2021 by Ms Autoscope Motor Assessors (Exhibit P8) and gave it a value of Kshs.1,500,000/-, which was the selling price. Although the Respondent submits that there was no depreciation, clearly on the face value, the value of the vehicle had gone down. 13.It was the duty of the Appellant to prove to the Court how much this depreciation was, taking into account the use of the vehicle and the fact that indeed the vehicle had undergone repairs to restore it to the condition it was before the accident. I have considered the amount sought by the Appellant in depreciation. As stated above this is a vehicle that was in use on the road on a daily basis. Between the 10/06/2020 and 22/07/2021 when the accident took place, this vehicle was still in use for the entire year, and of course it must have also depreciated. This period is slightly over a year and therefore the value on 10/06/2020 cannot be taken to be the pre-accident value of the vehicle. 14.It was incumbent upon the Appellant to produce a more recent valuation report to demonstrate the actual pre accident value of the vehicle, to guide the court in arriving at the value of the vehicle at the time of the accident. This evidence was not availed. 15.And this being a special damage claim that must be specifically proved, my finding is that the trial Magistrate did not err in finding that the depreciation had not been proved. Whether the Learned Trial Magistrate erred in Law and in fact in failing to find that the Appellant/ Plaintiff proved by Mpesa Statements and other evidence produced that from the suit motor vehicle registration number KCY 037T, he used to earn an average income of Kshs.3,500/= per day and not Kshs.1,500/=, which was the income that he lost on account of the material damages caused to his suit motor-vehicle by the Respondents/Defendants. 16.As stated earlier it is trite Law that Special Damages must not only be specifically pleaded but also specifically proved. The plaintiff’s evidence at the trial court was that the vehicle was a matatu that was operating along the Migori – Kisumu route and that his father operated the vehicle on his behalf. His father was James Masaki Rongai and the driver was Maurice Akeno. That the driver would send daily earnings to the Appellant’s father and then the money would be sent to the Appellant. To support this claim, the Appellant produced in court Mpesa statements showing the daily amounts sent by Maurice to James Masaki and urged the court to find that on average, the daily earnings of the vehicle were Kshs. 3,500/- 17.I have considered this evidence and evaluated the Mpesa statements produced in court. I am also alive to the fact that running a Public Service Vehicle has attendant expenses, just like any other business. As correctly pointed out by the trial Magistrate, the figure of Kshs.3,500/- doesn’t take into account any expenses. It presupposes that the vehicle is on the road seven days a week without any fuel or maintenance expenses and that it never broke down a single day, which wouldn’t be possible. 18.For the Appellant to demonstrate to the court how much they made in a day, the court would have expected proper record keeping of both income and expenses. This record was not produced in court. 19.The Appellant has submitted that he had led evidence to show that what was remitted to his father was the net daily profit after deducting the driver’s expenses, any repairs and fuel. I have perused the entire trial court record and I did not see any such testimony or evidence. 20.The trial Magistrate had considered the Mpesa statement and found that they did not prove that the Appellant earned Kshs.3,500/- daily. I have considered the Mpesa statements and the finding of the trial Magistrate and I have no reason to interfere with the said finding. I find that the learned Magistrate did not err in finding that the reasonable daily earning would be Kshs.1,500/- per day. Whether the Learned Trial Magistrate erred in Law and in Fact in failing to find that proper assessment for the Appellant/ Plaintiff lost business was for a period of 10 months, being the period between the date of the accident on 22nd July 2021, to the date when he disposed of the suit motor vehicle on 11th November 2021, as opposed to the period of 5 months and 10 days which the trial Magistrate found to be the duration of the Appellant’s/ Plaintiff’s loss of business. 21.The Appellant submits that the trial Magistrate erred in failing to find that the Appellant had lost business for 10 (ten Months). From the evidence led in court, the accident occurred on the 22/7/2021. The motor vehicle was sold on 5/10/2021. The Appellant submits that he ought to have been compensated for 10 (ten) months stating that he had not been able to get back to business and could not service his loans until June 2022 and hence his claim for loss of business for the 10 months. 22.I have considered this submission and my view is as that the claim herein relates to loss of use of the specific motor vehicle. It is not loss of business of the general operations of the Appellant. From the record the vehicle was not in use from 22/07/2021 to 5/10/2021 when it was sold. This is the period that the Appellant ought to claim loss of use of the motor vehicle. I find that the trial Magistrate did not err in awarding only 5 months for loss of business. Whether the Appellant is entitled to General damages for loss of Income? 23.The Appellant submits that he is entitled to general damages for loss of business. The law is that loss of business is specific and can only be claimed as special tabulated damages, and this is what the Appellant had claimed as 1,080,000/-. He therefore cannot go ahead and claim general damages on a head that he has already rightly pleaded as special damages. 24.In conclusion, my finding is that the Appellant has not demonstrated that the trial Magistrate erred in the assessment of damages when she delivered her judgement on the 7th February 2024 and this court has no reason to interfere with the orders granted by the Magistrate. 25.The upshot of the matter is that the Appeal herein lacks merit, and it is dismissed with costs to the Respondent.It is so ordered. JUDGMENT DATED, VIRTUALLY DELIVERED AND ELECTRONICALLY SIGNED ON 19TH DAY OF JUNE 2026…………………………..………………L. M. WACHIRAJUDGEIn presence ofLindsy - Court AssistantCounsel for the Appellant.N/A for the Respondent.