Nzuki v Holiday Cars & Tours Ltd

Nzuki v Holiday Cars & Tours Ltd (Civil Appeal 117 of 2025) [2026] KEHC 13364 (KLR) (2 September 2026) (Judgment) Neutral citation: [2026] KEHC 13364 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal 117 of 2025 JWW Mong'are, J September 2, 2026 Between Kelvin Njenga Nzuki Appellant and Holiday Cars & Tours Limited Respondent (Being an appeal from the Judgement and Decree of Hon. D. Kuto, PM dated 20.09.2022 at the Magistrates Court at Mavoko, in Civil Case No. E358 of 2021) Judgment Introduction and Background 1.On 11th April 2025, the subordinate court delivered a judgment in which it awarded the Appellant special damages of Kshs.352,580.00. The judgment was in respect of a claim filed by the Appellant of an accident that occurred along Mombasa Road involving the parties’ motor vehicles on 23rd November 2019. The Appellant sought special damages totaling Kshs.968,580.00 as a result of the accident being cost of the police abstract, cost of repairs, lost earning and towing charges. 2.In its judgment, the subordinate court awarded all the items save for the claimed lost earnings of Kshs.616,000.00 which the learned magistrate held that the Appellant had not provided evidence to support the claim of losing Kshs.8,000.00 daily for 77 days. The Appellant is dissatisfied with this decision declining the award under the head of loss of user and now appeals to this court through its undated Memorandum of Appeal filed on 13th May 2025. The appeal has been canvassed by way of written submissions that I have considered together with the record and I will make relevant references to them in my analysis and determination below. Analysis and Determination 3.In determining this appeal, I am aware that the court is exercising the jurisdiction of a first appellate court and therefore has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand (Selle & another v Associated Motor Boat Co. Ltd.& others (1968) EA 123) 4.As stated, the Appellant’s grievance is on the subordinate court failing to grant damages for loss of user. The Appellant relies on the Court of Appeal case of Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR) to submit that that loss of user/profits for an income-generating chattel like a matatu is a claim for general damages, proved on a balance of probabilities. It also relied on this court’s (Musyoka J.,) decision in Martin Gicimu Kamanga v Board of Governors, St Anne’s Junior School, Lubao [2021] KEHC 1809 (KLR) and that of Olel J., in Kenindia Assurance Co Limited v Kariuki [2023] KEHC 25274 (KLR) to contend that Kenyan jurisprudence on this issue has departed from English Common Law. That the local standard recognizes that informal, indigenous businesses such as matatus often do not maintain formal books of account and strictly requiring documentary proof would create injustice. 5.The Appellant asserts that the vehicle was off the road for 77 days and that reasonable steps were taken to mitigate loss as the accident occurred on 23rd November 2019 and the vehicle was inspected on 3rd December 2019, that the Appellant attempted to engage the Respondent through correspondence on 9th and 19th December 2019 and receiving no response, the Appellant mobilized funds independently to purchase parts and carry out repairs. He adds that the period included the Christmas holiday period and required extensive repairs, which concluded with a post-repair inspection on 9th February 2020. 6.The Appellant also submits that the vehicle was a Public Service Vehicle (PSV) ferrying fare-paying passengers on the Nairobi–Namanga and Nairobi–Oloitoktok route, making an estimated net daily income of Kshs. 8,000.00 and that he submitted an M-Pesa statement as partial proof. That the vehicle was off-road during the peak Christmas, New Year and back-to-school travel period, it was on loan requiring monthly installments during the downtime and the Appellant had to mobilize Kshs.327,080.00 out of pocket for repairs. 7.For these reasons, the Appellant urges the court to hold that the learned magistrate erred in disallowing the claim for loss of user and award general damages for loss of user at Kshs.8,000.00 per day for 77 days, totaling Kshs.616,000.00. 8.In response, the Respondent contends that established precedents dictate that loss of user is a claim for special damages, requiring both specific pleading and strict proof. It cites the Court of Appeal decision of David Bagine vs Martin Bundi [1997] KECA 201 (KLR) where it was held that a claim under “loss of user" is strictly one of special damage and cannot be treated as general damages. It also relies on inter alia, the Court of Appeal decision in Macharia Waiguru v Muranga Municipal Council & Another [2014] KECA 496 (KLR) where it was held that any claim capable of precise calculation ceases to be general damages and must be strictly proved and that allowing such claims without proof forces a court to arbitrarily take a figure from nowhere. That in Ryce Motors Limited & Another v Elias Muroki, Civil Appeal No. 119 of 1995; [1996] eKLR, it was noted that figures jotted down without proper verification or unsubstantiated timelines raised late in submissions cannot satisfy the standard of strict proof. 9.The Respondent submits that even if the claim were judged on a lower threshold of a balance of probabilities, the Appellant failed to prove either required element as the Appellant’s claim of Kshs.8,000.00 net per day was contradicted by his own evidence. That his Equity Bank statement showed total deposits of only Kshs.51,000.00 in October 2019 and Kshs.64,500.00 in November 2019, amounts it states are completely inconsistent with an Kshs.8,000.00 daily net yield. Further, that the M-Pesa statement presented contained personal transactions unrelated to operating the motor vehicle and that the Appellant was incoherent under cross-examination regarding repair duration and the accident assessment report failed to state an estimated repair timeline and the assessor did not clarify it. 10.The Respondent adds that the Appellant's attempt to justify the 77-day period on appeal amounts to explanations that were never pleaded, testified to, or cross-examined in the trial court. As such, the Respondent prays that the court dismisses the appeal in its entirety, uphold the judgment of the trial court and award the costs of the appeal to the Respondent. 11.Going through the record and submissions, it follows that the determination of this appeal turns on the conflicting Court of Appeal authorities on the classification of "loss of user" claims. The Respondent correctly relies on the line of cases, including David Bagine(supra) and Ryce Motors Limited(supra) which hold that loss of user is a claim for special damages that must be strictly proved, often through documentary evidence like books of accounts. However, a more recent and pragmatic line of authorities, which I find highly persuasive, has recognized the unique realities of the matatu sector in Kenya. This includes the seminal and binding Court of Appeal decision in Samuel Kariuki Nyangoti(supra) where it was held as follows in respect of loss of use: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.(17)In Wambua v Patel & Another [1986] KLR 336, the High Court (Apaloo, J. as he then was), was faced with the problem of quantification of loss of earnings of a cattle trader who had been severely injured in a road traffic accident. Although the court in that case found that the evidence of the plaintiff’s earnings to be very poor and that he had kept no books of account nor business books and had never paid any tax, the court said at p.346 para 25:“Nevertheless, I am satisfied that he was in the cattle trade and earned his livelihood from that business. A wrong doer must take his victim as he finds him. The defendants ought not to be heard to say the plaintiff should be denied his earnings because he did not develop more sophisticated business method” ….and added at p. 347 para 1 “But a victim does not lose his remedy in damages because the quantification is difficult.” 12.As Musyoka J., aptly observed in Martin Gicimu Kamanga(supra), the "matatu" business is an indigenous Kenyan model where formal record-keeping is often not a part of the operational culture. To apply the strict English Common Law standard of special damages to this sector would result in an injustice, effectively denying legitimate claims based solely on a lack of formal paperwork. 13.I am therefore persuaded and satisfied that the current and more just legal position in Kenya is that a claim for loss of user of a profit-making chattel, like a matatu, is in the nature of general damages. The standard of proof in such claims is on a balance of probabilities, not the strict proof required for special damages. The court can use its discretion to assess a reasonable amount based on the evidence presented, even if that evidence is not in the form of formal books of accounts. 14.From the record, the Appellant proved on a balance of probabilities that the vehicle was a commercial matatu used to earn a livelihood and this was uncontested. PW 1 testified that the matatu earned a daily average of Kshs. 8,000.00 and he provided supporting documents like M-Pesa and bank statements, which, while not perfectly conclusive on a day-to-day basis, did show significant deposits consistent with a commercial operation. I find that the learned trial magistrate erroneously dismissed this evidence because it did not meet the strict standard of special damages. 15.The record also shows that the Appellant provided a clear timeline of events that the accident on 23rd November 2019 and the post-repair report was made on 9th February 2020 which establishes a 77-day period during which the vehicle was off the road. It was not disputed that the Appellant took steps to mitigate his loss by communicating with the Respondent who did not respond and by undertaking the repairs himself 16.Therefore, I find that the trial magistrate's finding that the claim for loss of user failed for lack of proof was based on the wrong legal standard and I would adopt the reasoning of this court in Martin Gicimu Kamanga(supra) and allow the appeal and assess the appropriate damages. While the Appellant claimed Kshs. 8,000 per day, a prudent and conservative approach is warranted and taking into account the evidence of potential daily earnings from PW 1’s testimony, bank and M-pesa statements, but also allowing for the inherent uncertainties and the fact that the vehicle would not operate every single day of the year, I would adopt a daily net earning of Kshs. 5,000.00. Further, the 77-day period is not unreasonable, given the need to assess damages, source a garage and carry out the repairs and the Appellant also demonstrated a reasonable effort to mitigate his loss. Thus, the total award for loss of user would be Kshs. 5,000.00 x 77 days = Kshs. 385,000.00 Conclusion and Disposition 17.To this end, I find that the Appellant’s appeal succeeds to the extent that the portion of the decision of the subordinate court dated 11th April 2025 declining to award the Respondent sums under the head of loss of user is set aside. It is substituted with an award of Kshs.385,000.00 together with interest from 11th April 2025 until payment in full. The Appellant is also awarded costs of this appeal. DATED SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER 2026............................................................................J W W MONGAREJUDGEIn the presence of;Mr. Ndungu for the AppellantN/A for the RespondentAbdisalan- Court Assistant