[2015] KEHC 3406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER 288 OF 2010

1. PERMUGA AUTO SPARES...............................................1ST APPELLANT

2. BARCLAYS BANK OF KENYA LTD.................................2ND APPELLANT

VERSUS

MARGARET KORIR TAGI................................................................RESPONDENT

(An appeal from the judgment of the Chief Magistrate's Court at Nakuru Case No 822 of 2007 delivered on 14. 10. 2010)

JUDGEMENT

1. This Appeal arises from a material damage claim and loss of user of the Respondents motor vehicle Registration Number KAW 641X that was involved in an accident with the Appellants motor vehicle Registration Number KAU 252H/ZC 942 on the 10th January 2007 at Naivasha town.

The lower court after trial found in favour of the respondent in terms of special and general damages, but did not pronounce its finding on liability. The sums awarded are as hereunder:

Value of motor vehicle- KShs.1,016,000/=

Excess - KShs. 30,000/=

Towing charges - Kshs. 20,000/=

Motor vehicle search fees - KShs. 500/=

Assessment Fees - Kshs. 5,225/=

Assessor's court attendance fees - Kshs. 5,000/=

Storage charges of Kshs.3,000/=

per month for one year - KShs. 36,000/=

General damages - Kshs. 300,000/=

Total KShs.1,434,725/=

The Appellant preferred this appeal on six grounds that may be summarised into two:

1. That the Learned Magistrate erred in law and fact in finding the appellants liable for the accident contrary to evidence tendered in court.

2. The learned trial Magistrate erred in law and fact in awarding the Respondent special and general damages that were not pleaded nor proved.

This court has been urged to set aside the Judgment and dismiss the Respondents suit with costs.

2. In the Amended plaint dated 30th October 2007, the Respondent pleaded general damages, and special damages in the sum of Kshs.2,243,300/=. It was stated that the vehicle Registration Number KAW 641X, a matatu was extensively damaged and declared a write off by the motor vehicle Assessor who gave the vehicle a pre-accident value of KShs.1,350,000/= and salvage value of KShs.350,000/=. It was further pleaded loss of user of the vehicle at KShs.4,000/= per day for six months.

The appellant denied liability and all particulars stated as special damages and put the respondent to strict proof.

The court being the first appellate is under a duty to re-evaluate the evidence tendered and come up with its own findings and conclusions as held in Selle -vs- Associated Motor Boat Co. Ltd (1968) E.A 123.

3. The Respondent's case as stated by the driver of her vehicle, PW1 was that he was driving from Nairobi to Nakuru but at Naivasha-Kariuki Chotara Junction, he heard horning of a vehicle and when he looked behind in his side mirror saw a vehicle with lights and on high speed and very close, that the moved to the left to avoid the accident but his vehicle was hit from behind and it fell on the left side of the road. One person died, and others were injured and the vehicle was extensively damaged. He stated that he had driven the vehicle for only nine days. Police officer, PW4 testified that from their investigations, the trailer's brakes failed forcing the vehicle to go downhill on terrific speed, hit the appellants vehicle from behind causing it to hit others in front. The driver and turnboy of the trailer died in the accident and an inquest is still pending in court.

PW2 was the owner of the matatu vehicle. She testified that she had bought the vehicle from a company for a sum of KShs.1,350,000/= produced a Sale Agreement, that she had not paid the full purchase price and had improved the same by installing seats, speed governors and other accessories at a sum of KShs.150,000/=. She sated that the vehicle was used for nine days only and was making an average of KShs.4,000/= per day. She produced various receipts in support of her claim for special damages.

4. The motor vehicle Assessor, PW3 produced an assessment report for the vehicle. He placed the pre-accident value at KShs.1,450,000/= and wrote it off, with a salvage value of KShs.350,000/=. He charged KShs.5,220/= as assessment fees and KShs.5,000/= as court attendance fees. On cross examination, he confirmed that the report did not indicate how the Assessor arrived at the pre-accident value of KShs.1,450,000/= and that cost price of the damaged items was not indicated.

The appellant denied liability and all particulars stated as special damages.

The court being the first appellate court is under a duty to re-evaluate the evidence tendered and come up with its own findings and conclusions as held in Selle-vs- Associated Motor Boat Co. Ltd (1968) E.A 123.

5. The Respondent's case as stated by the driver of the vehicle, PW1 was that he was driving from Nairobi to Nakuru but at Naivasha-Karuki Chotara Junction, he heard horning of a vehicle and when he looked behind in his side mirror saw a vehicle with lights and on very high speed and very chose, that he moved to the let to avoid the accident but the vehicle nevertheless knocked the matatu and damaged it extensively.

6. The Appellant did not call any evidence in the trial court.

Both parties filed their submissions on both liability and quantum of damages.

The Appellants submissions was that it was not clear which of the two vehicles caused the accident, and the appellants' vehicle tried to avoid the accident by horning and flashing to warn other road users and that the Respondents driver did nothing to evade the accident hence he should be held liable, or at least apportion liability on 50:50 basis.

7. I have considered the trial Court's judgment. The trial Magistrate did not make a finding on liability expressly but stated that since the Appellants did not call any evidence, it left the court to wonder what had transpired. This court finds that to that extent, the trial Magistrate erred as he ought to have made a finding on the available evidence.

I have re-evaluated the evidence in its totality. It is quite evident that the trailer, property of the Appellants was the sole cause of the accident. It came downhill on terrific speed hooting and flashing, a sign that something was a miss. It hit the matatu from behind throwing it to the left side of the road, other eleven vehicles were also involved. The driver and turn-boy died. This confirms that indeed the trailer was being driven at a very high speed. The matatu driver tried to evade accident by moving to the left, nevertheless, the vehicle was knocked from behind. I find that the Appellant's motor vehicle Registration Number KAU 252H/ZC 0942 was the sole cause of the accident. I find no evidence at all to attach any blame on the Respondents driver. He can did not contribute to the accident. The first ground of appeal therefore fails. The Appellants are held wholly to blame for the accident, jointly and severally.

On the assessment of damages, it is not in doubt that the Respondent's vehicle was extensively damaged. The assessment report and photographs produced confirm the damages that the assessor termed as extensive and not economical to repair. He however did not give an estimate of the repair costs nor an itemised cost of repair of the damaged items.

8. The Respondent produced a Sale Agreement that confirmed the purchase price of the vehicle as KShs.1,350,000/=. It was her evidence that she spent about KShs.150,000/= to improve the vehicle by fixing seats, safety belts and other accessories. The assessor placed a per-accident value at KShs.1,450,000/= and declared it a write off, and valued the salvage at KShs.350,000/=.

What then was the pre-accident value of the Respondent's motor vehicle?

The trial Magistrate placed a pre-accident value of KShs.1,016,000/=.

It was stated that the plaintiff had paid a sum of KShs.866,000/= out of the purchase price of KShs.1,350,000/= leaving a balance of KShs.484,000/= that had to be paid notwithstanding the accident. The assessor did not lay a basis for the pre-accident value of KShs.1,450,000/= that he gave. In the absence of any evidence of the value, I would give the purchase price of Kshs.1,350,000/= of the vehicle, as the pre-accident value.

9. The court finds no fault with the trial court's awards in special damages as pleaded SAVE for

1. Storage Charges - Kshs. 36,000/=.

2. General Damages - Kshs.300,000/=.

3. Towing charges - Kshs. 20,000/=.

10. On storage charges, a sum of KShs.18,000/= was pleaded in the Amended Plaint. The Court awarded KShs.36,000/= based on Kshs.3,000/= per month for 12 months. The vehicle was declared a write off. One would wish to ask why the Respondent stored the salvage for twelve months unless she bought it. And if that was the case, no evidence of the purchase of the salvage was produced.

I agree with the Appellants counsel that once the vehicle was declared uneconomical to repair and therefore a write off, there was no need to keep the salvage. This claim and the award of KShs.36,000/= was unnecessary, and not supported. It is disallowed. In the case John Kanyi -vs- Mufurari -vs- Kenya Railways HCCC No.3394of 1997 It was held that it was wrong to ask for payment of storing charges of a vehicle declared a write off. The court dismissed the claim.

11. A claim for loss of user was pleaded. The Respondent testified that the vehicle used to make an average of KShs.4,000/= per day for the nine days it had operated before the accident.

The trial magistrate in his judgment termed it as a general damage. It was clearly pleaded as a special damage and therefore subject to prove. The award of KShs.300,000/= on this item was not justified. The trial court did not lay a basis for its award. The Respondent did not testify and support the claim of loss of user for six months when the vehicle was a write off.

In William Ndinya Omollo -vs- Come Con Africa Ltd(2004) KLR, the question of loss of user was extensively addressed See also Nakuru Civil Appeal No.264 of 1999 – African Highlands Produce Ltd -vs- John Kisovo.

In the above cases, it was held that a claim for loss of user is a special damage and it must be proved and that the losses must be mitigated. The Respondent urged the court not to interfere with the sum of KShs.300,000/= awarded as a general damage, and relied on the case Nkunene Diary Farmers Co-operative Ltd and Another -vs- Ngacha Ndeyia(2010) KLRwhere the Court of Appeal held:-

“that special damages in material damage claims need not be shown the extent of the damage and what it would cost to restore the damaged items to bring it as near as possible to the condition before the accident.”

I am persuaded and bound by the above holding.

I agree that when the court is awarding damages for loss of user, the court ought to consider that a commercial vehicle cannot be kept on the road when it does not make any profits, the special damage must however be subject to proof.

12. The circumstances of this matter are different. It is the courts view that once a vehicle has been written off, the only compensation is the per-accident value, less salvage value as assessed and other reasonable consequential expenses that are subject to prove. There would ordinarily be assessment charges, towing charges, excess but not loss of user. The payment of the pre-accident value is made to bring the owner to as near as possible to the state he would have been if not for the accident and loss. In the court's view, to award damages for loss of user as well as the pre-accident value and other consequential losses would be to award double compensation. The claim for loss of user is disallowed.

13. A towing chargeis a special damage and must be proved. The Respondent pleaded a sum of KShs.18,000/=. The trial court awarded a sum of KShs.20,000/=. The Respondent in her testimony testified that she towed the vehicle to a Nakuru garage but produced no payment receipt to prove the claim. Being a special damage, the trial court erred in awarding the same without proof. It shall be disallowed.

14. Consequently and for the reasons stated above the trial court's Judgment is set aside and the awards in special and general damages are adjusted as follows:

1. The Appellants are jointly and severally held wholly to blame for the accident that occurred on the 10th January 2007 and therefore liable for the damages and consequences arising therefrom as hereunder:

a) Pre accident value of Motor vehicle

Registration Number KAW 641X - KShs.1,350,000/=

Less salvage value - Kshs. 350,000/=

- Kshs.1,000,000/=

b) Excess - Kshs. 30,000/=

c) Towing charges not proved - NIL

d) Search fees - Kshs. 500/=

e) Assessment fees - Kshs. 5,225/=

f) Assessors Court attendance fees - Kshs. 5,000/=

g) Storage charges – Not proved - NIL

h) Loss of user - NIL

Total - KShs.1,040,725/=

2. As the appeal succeeds in part, each party shall bear its own costs but the Respondent shall have costs in the lower court.

It is so ordered.

Dated, signed and delivered in open court this 16th day of July 2015

JANET MULWA

JUDGE

In the presence of:

Mrs. Wanderi for Respondent

Muchela holding brief for Omwenga for Appellant

Court clerk – Linah.