[2022] KEHC 13933 (KLR)

Omosa v China WU YI (K) Ltd (Civil Appeal 628 of 2019) [2022] KEHC 13933 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13933 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 628 of 2019

JK Sergon, J

October 19, 2022

Between

Florence Omosa

Appellant

and

China WU YI (K) Ltd

Respondent

(Being an appeal from the judgment and decree of Honourable A.M. Obura (Mrs.) (Senior Principal Magistrate) delivered on 2nd October, 2019 in Milimani CMCC no. 3349 of 2018)

Judgment

1. The appellant who was the plaintiff in Civil Suit No 3349 of 2018 before the Chief Magistrate’s Court at Milimani Commercial Courts instituted a suit by way of the plaint dated March 28, 2018 and sought for special damages in the sum of Kshs 1,189,980/=; the sum of Kshs 9,250,000/= for loss of income; general damages; costs of the suit plus interest thereon, arising out of loss occasioned to her property during construction works undertaken by the respondent.

2. The appellant pleaded the plaint that she was at all material times the registered owner of the property known as land parcel number LR 1/1299 situated along George Padmore Road, Robin Lane (“the subject premises”) whereas the respondent was the main contractor undertaking the construction of a high flat building in the neighbouring compound, at all material times.

3. The appellant pleaded in the plaint that sometime in October, 2013 upon commencing construction in the neighbourhood adjacent to the subject premises, the respondent’s employees/ agents conducted the construction so negligently and/or carelessly that the waste from the construction damaged the subject premises, resulting in loss/damage to the appellant, including the loss of rental income. The particulars of negligence are laid out in the plaint.

4. Upon service of summons, the respondent entered appearance and filed its amended statement of defence dated December 20, 2018 to deny the appellant’s claim.

5. At the trial, the appellant testified and called one (1) witness, whereas the respondent relied on the testimony of three (3) witnesses.

6. Upon filing of submissions, the trial court delivered its judgment in favour of the appellant and against the respondent in the following manner:a.Special damages Kshs 237,000/=b.Loss of rental income (for one quarter) Kshs 600,000/=Total Kshs 837,000/ =

7. The appellant is aggrieved by the award made on rental income and has filed the memorandum of appeal dated October 30, 2019 to challenge the same, by putting in one (1) ground of appeal essentially arguing that the loss of income ought to have been awarded as prayed.

8. The appeal was disposed of through the filing of written submissions.

9. On her part, the appellant argues that the damages awarded by the trial court are inordinately low and especially considering the fact that the subject premises remained vacant for a period of four (4) years, thereby resulting in loss of income to the appellant.

10. The appellant is of the view that the trial court ought to have calculated the loss of income using the multiplier approach, by applying a multiplier of 37 months being the period during which the subject premises had no tenant occupancy (December, 2013 to December, 2016), totaling the sum of Kshs 9,250,000/=.

11. The appellant has cited a few cases to support her submissions, including the case ofFridah Kageni Julius v Kenya Power & Lighting Company Limited[2017] eKLR where the court awarded damages for loss of income at the instance of a plaintiff whose tenant had vacated the premises through the fault of the defendant.

12. The respondent replied by arguing that the trial court did not consider its submissions and evidence in rendering its decision.

13. The respondent further argues that the trial court erred in awarding damages for negligence in the absence of any evidence to support that claim and quotes the case of Alfred Chivatsi Chai & another v Mercy Zawadi Nyambu[2019] eKLR in which the court reasoned thus:“…in Lodigelly Iron Coal Co Ltd v Mcmillan [1934] AC“The court held it in strict legal analyses negligence means more than heedless or careless conduct whether in omission or commission. It properly connotes the aspect concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.”

14. The respondent has also faulted the trial court for awarding special damages in the absence of specific proof of the same by the appellant.

15. In view of the foregoing, the respondent urges this court to dismiss the appeal and to find that the appellant did not make a case for negligence and/or trespass against the respondent.

16. I have considered the rival submissions on record alongside the relevant authorities cited. As is the legal requirement for a court sitting on a first appeal, I have re-evaluated the evidence placed before the trial court and studied the judgment in question.

17. I note from the respondent’s submissions that it has challenged the finding of the court on various aspects, as laid out hereinabove. However, upon my perusal of the record, there is nothing to indicate that a cross-appeal was ever filed by the respondent in that respect. Consequently, I have no basis on which to consider the respondent’s sentiments made in that regard.

18. It is clear that the appeal lies solely against the award made for loss of income/rent. I will therefore address the single ground of appeal under that head.

19. The legal position on this is that the award of a trial court ought only to be interfered with on appeal under the following circumstances as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No 2) [1985] eKLR cited in the submissions by the appellant and further referenced in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited[2015] eKLR thus:a.Where an irrelevant factor was taken into account.b.Where a relevant factor was disregarded.c.Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

20. On her part, the appellant both pleaded and submitted before the trial court that an award in the sum of Kshs 9,250,000/= would suffice under that head.

21. The appellant; who adopted her executed witness statement as part of her evidence-in-chief; stated that following the departure of her former tenant upon commencement of the construction by the respondent, she was unable to secure other tenants, thereby resulting in loss of rental income on the subject premises.

22. In cross-examination, the appellant gave evidence that she would fetch monthly rent in the sum of Kshs 250,000/= from the subject premises and that her previous tenant had occupied the subject premises in September, 2013 before vacating a few months later due to noise and other disturbances emanating from the construction.

23. The appellant testified that she managed to get a tenant sometime in the year 2017.

24. David Buop who was PW2 and adopted his signed witness statement, also testified that whereas several prospective tenants came to view the subject premises during the period of construction, they eventually rejected it due to the activities and foreign objects resulting from the construction.

25. In her judgment, the learned trial magistrate reasoned that while she had found the respondent liable to compensate the appellant for the loss suffered, the appellant had a duty to mitigate her loss and that no reasonable explanation had been given to demonstrate the vacancy of four (4) years in the subject premises and hence it was unreasonable for the appellant to seek compensation for rental income lost for a period of four (4) years.

26. Upon my re-examination of the impugned judgment, it is not in dispute that the learned trial magistrate arrived at the conclusion that the appellant had suffered loss resulting from the acts and/or omissions by the respondent.

27. Upon my further re-examination of the pleadings and evidence, it is apparent that the appellant had previously enjoyed rental income from the subject premises at all material times, earning a monthly income of Kshs 250,000/= at all material times.

28. From my study of the record, I am of the view that the appellant adduced credible evidence to show that during the time of the material construction, she had suffered loss of rental income for the reasons laid out in her pleadings and oral testimony, and for which she would be entitled to receive compensation.

29. In my view, while I do concur with the reasoning of the learned trial magistrate that it would be unreasonable for the appellant to pray for compensation for four (4) years whereas construction lasted a shorter period, I find that the appellant would be entitled to compensation for rental income lost between the months of December, 2013 following the vacation of the subject premises by a tenant, and May, 2015 when the record shows that the construction was completed and a certificate of practical completion was issued; totaling 17 months.

30. To my mind, the appellant cannot therefore be heard to claim any rental income past that period as this may not be attributed to the respondent.

31. Upon taking into account all the foregoing circumstances, I am inclined to award the appellant compensation of rental income for 17 months, tabulated as follows:Kshs 250,000 x 17 = Kshs 4,250,000/=

32. Consequently, the appeal succeeds. The award of Kshs 600,000/= made on damages for loss of rental income is hereby set aside and is substituted with an award in the sum of Kshs 4,250,000/=.

33. The judgment on appeal shall now read as follows:i.Special damages Kshs 237,000/=ii.Loss of rental income (for one quarter) Kshs 4,250,000/=Total Kshs 4,487,000/=iii.The respondent shall also have costs of the suit and interest on the damages at court rates from the date of filing suit until payment in full.iv.The appellant shall also have the costs on the appeal, to be borne by the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent