[2023] KEHC 26484 (KLR)

Nyaga v Attorney General (On Behalf of the Ministry of Environment, Water and Natural Resources) (Civil Appeal E019 of 2023) [2023] KEHC 26484 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26484 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E019 of 2023

LM Njuguna, J

December 13, 2023

Between

James Muruangendo Nyaga

Appellant

and

Attorney General

Respondent

On Behalf of the Ministry of Environment, Water and Natural Resources

(Appeal arising from the decision of Hon. L. Ambasi CM in Chief Magistrate’s Court at Embu Civil Case No. 178 of 2015 delivered on 10th May 2023)

Judgment

1. The appellant has filed the memorandum of appeal dated 24th May 2023 after he was dissatisfied with the abovementioned decision, and has sought the following orders:a.That the appeal be allowed and the court be pleased to order for damages for loss of use from the date of the accident until the date of Judgment on appeal;b.That the costs of the appeal be borne by the respondent; andc.Any other order as the court may deem fit and just.

2. The appeal is premised on the grounds that the trial magistrate erred in law and in fact:a.By failing to grant the prayer for loss of use as prayed in the appellant’s plaint dated 09th July 2015;b.In failing to make any award for damages for loss of use notwithstanding that the suit motor vehicle was at all times before the accident being used as a commercial/passenger ferrying matatu;c.In failing to take judicial notice that the commercial/passenger ferrying motor vehicle just like any other business would bring in income for its proprietor;d.In failing to award the appellant damages for loss of use even after finding the respondent fully liable for the accident;e.In its finding that the appellant’s daily cash in report lacked credibility notwithstanding that the credibility of the said document was never questioned or challenged by the respondent;f.In finding that the appellant’s testimony in chief on the income from the motor vehicle does not meet the evidential burden of proof notwithstanding the fact that the respondent never disputed or cross-examined the appellant on the amounts claimed;g.In failing to appreciate the standard of proof in civil cases is on a balance of probabilities;h.In finding that the testimony of the appellant and the driver on the daily income of the motor vehicle met the required evidentiary threshold and therefore reached a wrong conclusion;i.In entering the realm of a litigant suo moto questioning the credibility of the evidentiary documents not questioned by the litigants themselves;j.By questioning the credibility of evidentiary documents after full trial thus denying the appellant an opportunity to respond to the said queries hence occasioning an unfair trial; andk.In denying the appellant his right to a fair hearing.

3. Vide plaint dated 09th July 2015, the appellant sought judgment against the respondent for special damages of Kshs. 800,000/=, damages for loss of use and costs of the suit with interest. The particulars are that on 10th July 2014, at Nembure along Embu-Meru road at about 6:30PM, the appellant’s driver/agent/employee was lawfully driving motor vehicle registration number KBJ 474C when the respondent’s driver/employee/servant negligently and/or recklessly drove/ managed/ controlled motor vehicle registration number GK A 536A, Isuzu Bus causing it to violently hit the appellant’s vehicle from the rear thereby occasioning excessive damage to the said motor vehicle.

4. The respondent filed its statement of defense dated 29th September 2015, denying the allegations made in the plaint and stated that its drivers are trained to exercise the highest level of care, and diligence. The appellant filed a reply to defense dated 30th November 2015, challenging the averments made by the respondent in its defense and stated that the respondent’s driver did not exercise the level of care alleged in the statement of defence and that he is solely to blame for the accident.

5. During the trial, PW 1, the appellant, produced a copy of the motor vehicle logbook to prove that he is the owner of the said motor vehicle registration number KBJ 474C. He stated that he was at home when he received news of the accident and that the motor vehicle registration number GK A 536A had hit his motor vehicle from the rear. That the driver of the respondent’s motor vehicle was charged with a traffic offence. He produced an assessment report from Best Image Automobile Assessors.

6. He further stated that the motor vehicle was also inspected at the Motor Vehicle Inspection Unit Embu and found to have no pre-accident defects. On cross-examination, he stated that he visited the scene of the accident after the motor vehicles had already been removed and that he has nothing to prove that it is his motor vehicle that was hit. That he produced a copy of the logbook to prove his ownership of the motor vehicle which was a write-off after the accident.

7. PW2 was Joel Njeru Nyamu who stated that he was the driver of motor vehicle registration number KBJ 474C. That the said motor vehicle was hit from the rear by a government owned motor vehicle as he was slowing down at a bump. That the said motor vehicle used to generate Kshs. 5,000/= to Kshs. 6,000/=. On cross-examination, he stated that he was employed by the appellant but did not have a letter of employment to prove the said employment.

8. PW3, Stephen Mugo Kanyuiro is a motor vehicle loss assessor. He produced the assessment report which showed that the motor vehicle was a write-off as it was damaged to over 60% of its value. On cross-examination, he stated that the brakes of the motor vehicle were not tested because the vehicle could not move as a result of the accident.

9. Upon the close of the appellant’s case, the respondent did not call any witnesses and the court made its finding. In her judgment, the trial magistrate awarded special damages as prayed but denied the claim for loss of use on the basis that the claim was not supported by evidence.

10. The appeal was canvassed by way of written submissions. Both parties filed their submissions.

11. The appellant submitted, citing the cases of Motex Knitwear Limited v. Gopitex Knitwear Mills Limited (2009) eKLR and Janet Kaphiphe Ouma & Another v. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 on his argument that failure by the respondent to produce evidence controverting the appellant’s case means that the statement of defense makes mere allegations without proof. That the trial magistrate did not consider the fact that the insurance sticker produced in evidence showed that the motor vehicle was being used for commercial purposes and that this was sufficient proof for awarding loss of user. Reliance was placed on the provisions of Section 60(1)(l, n and o) of the Evidence Act.

12. That the daily income cash analysis was produced as evidence on 06th February 2023 and the respondent did not raise any questions. On this, he relied on the principle of estoppel by representation as discussed in the case of Serah Njeri Mwobi v. John Kanini Njoroge (2013) eKLR. He argued that the validity of the cash analysis was not raised at any point during the proceedings and that in the spirit of Article 50 of the Constitution, the trial court should have considered the analysis. On his argument that he satisfied the standard of proof, he relied on the cases of Samuel Kariuki Nyagoti v. Johaan Distelberger (2017) eKLR, James Muniu Mucheru v. National Bank of Kenya (2019) eKLR and Miller v. Minister of Pensions (1947) 2 ER 372.

13. The respondent stated that the income of the motor vehicle was not strictly proved and therefore could not be awarded. It cited the case of Ndugu Transport Company Limited & Another v. Daniel Mwangi Waithaka Leteipa (2018) eKLR. That if the appellant wished for his claim for loss of user to be considered, he should have produced proof of taxes on the income of the motor vehicle or any other proof of expenses. Reliance was placed on the cases of David Bagine v. Martin Bundi (1997) eKLR, Summer Limited Meru v. Moses Kithinji Nkanata (2006) eKLR and Nur Olow Farah aka Olow Farha aka Diriye Mohamed Olow v. Muda Arale Farah & Another (2021) eKLR and stated that the standard of proof was not met and the trial court did not disregard the evidence but subjected it to the required standard and found it wanting.

14. The respondent cited Section 173 of the Evidence Act and stated that the trial court did not act suo-moto in questioning the credibility of the evidentiary documents but under this provision, the trial magistrate is permitted to ask for further information on a case. It also cited the case of Judicial Service Commission v. Gladys Boss Shollei & Another (2014) eKLR stating that the appellant was granted the opportunity to present his case in accordance with Article 50 of the Constitution but he failed to persuade the court.

15. From the foregoing, the issue for determination is whether damages for loss of user should be awarded.

16. Loss of use (loss of user) falls under general damages as stated by the court in the case of Jackson Mwabili v Peterson Mateli [2020] eKLR thus:“.... 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.”

17. Comparatively, in the case of 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. Also, in the case of Peter Njuguna Joseph & Another v Anna Moraa (Civil Appeal No. 23 of 1991), the Court of Appeal assessed the loss of user of an immobilized matatu by estimates of the net income and period under which it should have been repaired even though not a single document was produced. (See also Jebrock Sugarcane Growers Co. Limited v. Jackson Chege Busi,(Civil Appeal No. 10 of 1991).

18. In the present case, PW2 at the trial submitted that the motor vehicle drew in a daily income of Kshs. 5,000/= to Kshs. 6,000/= PW1 produced a document detailing daily earnings as plaintiff’s exhibit 4. The document was drawn by the appellant and the trial court accepted it as evidence. I have already pointed out that damages under this head are general damages and so whatever evidence adduced to prove this must be subjected to the required standard of proof which is on a balance of probabilities. The respondent has argued that the appellant’s evidence did not meet the required standard of proof. This was also the sentiment of the trial court in its judgment.

19. The standard of proof in civil cases is a matter of fact and the scale is to be tilted using the competing arguments and evidence in order for the court to establish this standard. That is to say, the balance of probabilities is usually attained when both parties tell their stories and the court considers the weight of the evidence on other side. In the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, it was held that:“Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

20. In the present case, the appellant presented his case and produced evidence as the case should be. However, the respondent did not controvert such evidence through cross-examination nor did it call witnesses at the defense hearing. I have perused the trial court record and have revisited the evidence to re-examine it as required (see the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123). The copy of insurance sticker produced shows that the motor vehicle is to be used for commercial purposes, in this case, matatu business. The daily cash-in analysis was produced by the appellant but it did not break down the profits and expenses. It is a cumulative amount from which I would infer that the business incurred running costs which were not disclosed.

21. When faced with a similar question, the Court of Appeal in the case of Peter Njuguna Joseph & Another v Anna Moraa (Civil Appeal No. 23 of 1991) (supra) assessed the loss of user of an immobilized matatu by estimates of the net income and period under which it should have been repaired even though not a single document was produced. In the other case of Jackson Mwabili v Peterson Mateli (2020) eKLR, the court found that the trial court can exercise its discretion in awarding general damages for loss of user. It is, therefore, my view, that the appellant should be paid damages for loss of user but limited to the profit lost as the expenses that would have been incurred from the daily income have been overtaken by events.

22. The appellant stated that the motor vehicle brought a daily income of Kshs. 5,000/= to Kshs. 6,000/= and in his unchallenged analysis, he suggested that the court does award Kshs. 5,500/=. I am of the view that since the expenses and profits from this income were unascertainable, this court will apply discretion and award a daily loss of user (profit) at Kshs. 2,000/=.

23. In the end, I find that the appeal has merit and is hereby allowed with orders as follows:a.The appeal has merits and it is allowed.b.The appellant is awarded damages for loss of user at Kshs.2000/= per day from the date of the accident until payment in full;c.The other aspects of the judgment of the trial court remains undisturbed as they were not challenged in this appeal.d.There shall be no order as to costs.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE.................................................... for the Appellant..................................................... for the Respondent