[2010] KEHC 3497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 297 of 2001

OMARI GULEA JANA…………….....……………………..APPELLANT

VERSUS

B.M. MUANGE …….………..….…………………….….RESPONDENT

(An appeal from the judgment of the Hon. Mrs. A. Murage Senior Resident Magistrate dated 17th May 2001 in the Senior Principal Magistrate’s Court at Nairobi Civil in Suit No. EJ 556 of 1996)

J U D G M E N T

1. This judgment arises from a suit which was filed in the Magistrate’s Court at Nairobi by B.M. Muange, hereinafter referred to as the respondent. He had sued Omari Gulea Jana seeking to recover a sum of Kshs.271,874/= being special damages incurred by him as a result of an accident involving the respondent’s motor vehicle registration No. KAC 996F and the appellant’s motor vehicle registration No. KAA 408G. The respondent maintained that the accident was caused by the negligence of the appellant, his driver, servant or agent.

2. The appellant filed a defence in which he admitted the accident but denied that motor vehicle KAC 996F was owned by the respondent or that he (i.e. the appellant), was negligent or that the respondent suffered any loss. The appellant further contended that the accident was inevitable or was alternatively caused by the gross negligence of the driver of motor vehicle registration No. KAC 996F. The appellant contended that the respondent’s claim for special damages was grossly exaggerated.

3. During the hearing of the suit, two witnesses testified in support of the respondent’s case. Mary Wangari Muange testified that she was the one driving motor vehicle KAC 996F on the material day. She claimed that the vehicle belonged to her husband. She was driving along Shauri Moyo Road. As she was approaching a roundabout, a motor vehicle which appeared to be going into the roundabout suddenly changed and swerved towards motor vehicle KAC 996F hitting it. The respondent’s motor vehicle was damaged on the front right hand side. The accident was reported to the insurers of the motor vehicle, UAP Provincial Insurance, who paid for the repairs.

4. Samuel Odero, a legal clerk with UAP Provincial Insurance testified that upon receipt of the claim from the insured, an assessor was instructed to survey the loss and the cost of damage was assessed at Kshs.241,441/=. The motor vehicle was repaired at Unity Auto Garage where a sum of Kshs.238,264/= was paid, for the repairs. The insurance company is therefore pursuing its claim under its rights of subrogation. According to Odero, the insurer of the motor vehicle was Kenya Shell Limited, although the vehicle was jointly owned by the Respondent and Kenya Shell Limited. Neither the assessment report nor the certificate from the Registrar of Motor Vehicle was produced in evidence as the respondent was not able to procure the attendance of the relevant witnesses despite the case having been adjourned.

5. The appellant did not call any evidence but filed written submissions. Written submissions were also filed on behalf of the respondent in which the Court was urged that although the assessment report was not produced, it was a mere opinion which was not binding on the Court. Reference was made to the case of William Anuembee and Another vs. J.M. Anduho & Another, HCCC No. 3622 of 1985, in which damages were awarded on the strength of the plaintiff’s evidence without production of the medical report.

6. For the appellant it was submitted that the respondent did not file any reply to the appellant’s defence, in which inevitable accident was alleged. Therefore under Order VI Rule 9(1) of the Civil Procedure Rules, the respondent is deemed to have admitted contributory negligence, and liability should be apportioned at 50:50 basis. It was further submitted that the respondent had failed to prove his case as he did not prove that he was the owner of motor vehicle KAC 996F. The exhibits which were produced showed that the owner of the motor vehicle was Kenya Shell Limited. It was submitted that the respondent did not call any assessor to prove the alleged loss or damage and that the amount of 240,264/= alleged to have been paid by the insurer was in respect of an insured named Kenya Shell and not the respondent. It was further maintained that the cheque requisition voucher was not a sufficient proof of damage. It was maintained that the respondent totally failed to prove his claim and therefore the same should be dismissed with costs.

7. In her judgment the trial Magistrate found that the respondent’s evidence was unchallenged and therefore entered judgment in favour of the respondent at 90% holding him 10% contributorily negligent for failure to reply to the defence. The trial Magistrate further found that the respondent was the special owner of the motor vehicle and accepted the cheque requisition form as evidence of the costs of repair. She therefore allowed the respondent’s claim at Kshs.240,264/= less contribution of 10% resulting in a final judgment of Kshs.216,237/= together with costs and interests.

8. Being dissatisfied with that judgment, the appellant has brought this appeal raising 3 grounds as follows:

(i)That the learned trial Magistrate erred in fact and in law in admitting the evidence of the legal clerk at UAP Provincial Insurance Co. Ltd. as to the ownership of vehicle registration number KAC 996F when the said evidence was inadmissible and in accepting the evidence of the plaintiff’s wife when the same was insufficient proof of ownership.

(ii)That the learned trial Magistrate erred in fact and in law in finding that the plaintiff (respondent) was a “special owner” of the vehicle in question and therefore entitled to file suit.

(iii)That the learned trial Magistrate erred in finding that the documents produced in evidence were sufficient proof of damage notwithstanding the fact that the assessor was not called to testify as to the basis of findings on his assessment report.

9. Mr. Mwendar who appeared for the appellant submitted that the trial Magistrate erred in allowing hearsay evidence to prove ownership of the motor vehicle. It was submitted that Odero who claimed that the motor vehicle was jointly owned by the respondent and Kenya Shell Limited, did not show any nexus between the respondent and Kenya Shell Limited. With regard to damages it was submitted that special damages must be specifically pleaded and strictly proved. The case of David Bagine vs. Martin Bundi Civil Appeal No. 283 of 1986was relied upon. It was submitted that the only evidence adduced in support of the special damages which were the cheque requisition vouchers, were not sufficient proof of money having been paid for repair of the motor vehicle. The Court was urged to allow the appeal and set aside the judgment of the lower Court.

10. For the respondent it was submitted that the appeal had no merit. It was argued that the issue of ownership was properly addressed in the evidence of PW1, and confirmed by the evidence of PW2. It was maintained that the evidence adduced by the respondent was not counteracted. It was submitted that the respondent’s claim, was a claim under rights of subrogation, and therefore it was sufficient for the respondent to show that there was expenditure incurred. It was argued that the appellant did not specifically deny the claim for special damages. The Court was therefore urged to dismiss the appeal.

11. I have carefully reconsidered and evaluated all the evidence which was adduced before the trial Magistrate. I have also considered the judgment of the lower Court, the grounds of appeal, the submissions made before the trial Court and the submissions made before this Court. This being a claim for special damages, it was imperative that the respondent strictly prove his claim. Therefore it was necessary for the respondent to prove that motor vehicle KAC 996F was owned by the respondent, secondly that the motor vehicle was damaged as a result of the appellant’s negligence, and thirdly that as a result of the damage a total cost of Kshs.271,874/= was incurred in the repair of the vehicle and related costs.

12. As regards the issue of ownership of the motor vehicle KAC 996F, the respondent relied on the evidence of Mary Wangari Muange who testified that the vehicle belonged to her husband. She did not identify her husband and therefore we cannot assume that her husband is the plaintiff. Samuel Odero claimed that the plaintiff also owned the motor vehicle jointly with Kenya Shell Limited. He did not however produce anything to support his allegation. This was necessary considering that all the exhibits he referred to, only mentioned Kenya Shell Limited as the insured and made no reference to the plaintiff. In the circumstances, a certificate from the Registrar of Motor Vehicles was necessary to prove ownership of the motor vehicle.

13. Further, the claim having been one brought under rights of subrogation, it was necessary to establish that UAP Provincial Insurance paid a total of Kshs.271,874/= on behalf of the insured arising from the accident. Although it was alleged that motor vehicle KAC 996F was damaged, the assessment report was not produced in evidence. This was crucial evidence as without the assessment report it was impossible for the Court to establish the damage to the motor vehicle or the estimated costs of repairs. The fact that UAP Provincial Insurance paid a sum of Kshs.271,874/= to Unity Auto Garage is not sufficient to establish that that payment was in respect of repairs to the damage to motor vehicle KAC 996F arising from the accident subject of this suit.

14. I find that the evidence adduced by the respondent was inadequate to strictly prove his claim. The trial Magistrate appears to have been swayed by the fact that the appellant did not call any evidence. The trial Magistrate apparently lost sight of section 107 of the Evidence Act which placed the burden of proof squarely upon the respondent. Her judgment cannot be supported. Accordingly, I allow this appeal, set aside the judgment of the trial Magistrate and substitute thereof an order dismissing the respondent’s suit. I award costs in the lower Court and in this Court to the respondent.

Those shall be the orders of this Court.

Dated and delivered this 22nd day of January, 2010

H. M. OKWENGU

JUDGE

In the presence of: -

Miss Ngugi H/B for Mwendar for the appellant

Advocate for the respondent absent

Muturi - court clerk