https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11968

**Republic of Kenya** **In the High Court at THIKA** **Civil Appeal E072 of 2025** **Between** **OSCAR ANDREW WAWERU……………………………….……….…Appellant** **VERSUS** **ESTHER NJAHIRA NGARI…………………………………….……..Respondent** ***(Being an Appeal of the Judgment of Honourable M. Wachira (SRM) delivered in MCCC No. E002 of 2024 at Ruiru on 24th January, 2025)*** **Judgment** **Background** 1. This appeal emanates from the judgment delivered on **24th January, 2025** (as referenced in the appeal)in **RUIRU MCCC No. E002 of 2024**. The suit in the lower court was commenced by way of the plaint dated 10th November,2023 filed by **ESTHER NJAHIRA NGARI** the plaintiff in the lower court (hereinafter the Respondent) . 2. The parties agreed on Liability at 80:20 and proceeded to submit on quantum. 3. Judgment was entered in favour of the respondents in the following terms; 4. Liability 80: 20%. 5. General damages for loss of user Kshs.500,000/= 6. Special damages Kshs.600,140/= 7. Costs of the suit. Total after apportionment = **Kshs.880,112/=.** 1. Aggrieved by the decision, the appellant lodged the instant appeal on the following grounds: 2. THAT the learned trial Magistrate erred both in law and principle by applying erroneous principles in computation of loss of user payable thus arriving at erroneous and grossly excessive estimates of damages payable. 3. THAT the learned trial magistrate erred in both law and fact by holding that loss of user was a general damage claim thus erroneously arriving at a wrong decision. 4. THAT the Learned Magistrate fundamentally and grossly erred in making an award of Kshs,500,000/= for loss of use which was so inordinately high, unmerited, unjustified, disproportionate, unreasonable and untenable in law. 5. THAT the learned trial magistrate erred in law and fact by awarding a sum of ksh.500,000/- which was neither submitted by the appellant nor the respondent thus arriving at an erroneous estimate. 6. THAT the learned trial Magistrate fell in error of law and fact by failing to properly evaluate evidence on record thus reaching an erroneous decision. 7. THAT the Learned Magistrate grossly and fundamentally erred when she failed refused and/or neglected to apply and give effect to the principles that guide the award of special damages. 8. THAT the learned magistrate grossly and fundamentally erred in law and fact when she failed refused and/ or neglected to appreciate, apply and give effect to the principles that guide the application of the principle of the burden and standard of proof in civil suit. 9. The Appellant consequently seeks the following orders: 10. ***The whole judgment of 24th January,2025 be set aside.*** 11. ***That the appeal be allowed.*** 12. ***The appellant be awarded the costs of the trial court and of the appeal.*** **Parties’ Submissions on the Appeal** 1. The appeal was canvassed by way of written submissions. Counsel for the appellant submitted that the trial court erred in awarding loss of user as it was not strictly proved. 2. The Appellant contends that in her witness statement, the Respondent stated that the motor vehicle operates under Kukena Sacco and plies the Kerugoya Thika route. That there was no evidence tendered to substantiate the fact that the motor vehicle was indeed a PSV. There was no letter from the Sacco to show that the vehicle was amongst its fleet. Further to it, there were no records of earning or books of account tendered to show the vehicle earned revenue. The court on its part assumed the statements made which statements were mere allegations and not evidence to rise to the required burden of proof. 3. The Appellant further submits that, the trial magistrate failed to clearly take cognizant of the fact that the Respondent had not supported her claim for loss of user, and that such claim without proof should have been rejected summarily. 4. Stating that the award was based on speculation and wasn’t proven to the required standard of special damages, the Appellant relied in the decisions in ***Summer Limited Meru vs Moses Kithinji Nkanata [2006] eKLR High Court Civil Appeal No. 89 of 2004, Civil Appeal No. 283 of 1996, David Bagine vs Martin Bundi, Civil Appeal No.25 of 2013, Macharia Waiguru vs Murang’a Municipal Council, Siree vs Lake Turkana El Molo Lodges (2002) 2EA521, Maritim & Another v Anjere (1990-1994) EA 312 at 316*** and ***Ryce Motors Limited & Another v Elias Muroki,Civil Appeal No.119 of 1995 [1996] eKLR.*** 5. The Appellant finalized by submitting that the decision was anchored on misapprehension of the law and should be dismissed. 6. The Respondent on the other hand supports the decision of the trial court in awarding loss of user stating that the Appellant had failed to demonstrate how misplaced or outrageous the figures were. 7. The Respondent contends that it was never contested that the motor vehicle was a matatu. Relying on the decisions in ***Samuel Kariuki Nyangoti v Johaan Distlberger [2017] KECA 691 (KLR)*** and ***Jebrock Sugarcane Growers Co. LTD V Jackson Chege Busia Civil Appeal No.10 of 1991***, she submits that the figure awarded is reasonable and that the Appellant failed to challenge the evidence presented in court and the same was specifically pleaded n the plaint and prays that the judgment ne upheld. **Analysis and Determination** 1. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: ***“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.*** ***An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.*** ***In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. The Respondent pleaded and submitted that she suffered loss of user at Kshs.3,000/- per day from the moment of the accident to date. 2. In the plaintiffs list of exhibits, the respondent produced a police abstract confirming the accident occurred and was reported. There is the drivers PSV badge and statement by the driver, there is an inspection report dated 22nd August 2023 which contains photographs of the Motor vehicle at pages28-32, from the photos, the words KUKENA SACCO are written, the vehicle also has the yellow markings common with PSV vehicles. lastly, there is the charge sheet in Ruiru Traffic Case E630 of 2023 which confirms that the Motor vehicle KCL 526 A was a matatu operating under KUKENA SACCO. 3. All this evidence was not challenged at the hearing as the parties by consent opted to produce the exhibits and statements and proceeded to submit on quantum, the Appellant also admitted to liability of 80%. 4. In the case of **Samuel Kariuki Nyangoti v Johaan Distelberger (2017) eKLR**, the applicant claimed loss of user of his matatu which had been involved in an accident, the Court of Appeal held; “***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 restitution in integrum is applied in such cases.”*** 1. In **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. 2. Additionally, in **Peter Njuguna Joseph & Another v Anna Moraa (Civil Appeal No. 23 of 1991)**, the Court of Appeal assessed the loss of use of an immobilised matatu by estimating the net income and the period during which it should have been repaired, despite the absence of supporting documents. 3. The above decisions are clear that 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. 4. The claim of loss of user being a claim for general damages, its award by a trial court amounts to exercise of judicial discretion. 5. An appellate court would not readily interfere with the trial court’s exercise of discretion unless it is shown that the court applied wrong principles of law; took into account irrelevant factors; failed to take into account a relevant factor or the award is inordinately high or low as to represent an erroneous estimate. 6. In the instant case, it is my finding that having established that the subject motor vehicle was used for gainful purposes as a matatu, it would only be fair to make an award for loss of user. 7. However, the claim only concerns the gross income per day and no evidence was adduced as to the costs involved to arrive at net profit. 8. The appellant lost out of the accident the net income and not the gross income from the business. To be fair to him I would place his net daily income at 1,500/= to award him half of the amount claimed as there are also some days the matatu would have reasonably been out of business while undergoing repairs or for some other reasons. 9. I therefore set aside the trial court’s finding that Kshs.500,000/- was adequate compensation for loss of user and award the Respondent the sum of Kshs. 250,000/= for loss of user in addition to the other damages which were granted by the lower court. 10. Each party shall bear its own costs of the appeal. ***Dated, signed and delivered virtually at Nairobi this 30th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of** *Mr. Ruteere for Appellants* *Mr. Mugo for Respondents* *Kalondu – Court Assistant*