[2023] KEHC 24920 (KLR)

Rai Cement Company Limited v Otieno (Civil Appeal E077 of 2022) [2023] KEHC 24920 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24920 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E077 of 2022

KW Kiarie, J

November 8, 2023

Between

Rai Cement Company Limited

Appellant

and

Hezron Odero Otieno

Respondent

(Being an Appeal from the judgment and decree in Homa Bay Chief Magistrate’s CMCC No. E002of 2022 by Hon. J.M. Nang’ea –Chief Magistrate)

Judgment

1. Rai Cement Company Limited, the appellant herein, was the defendant in Homa Bay Chief Magistrate’s CMCC No. E002 of 2022. This was a claim that arose from a road accident which occurred on the 10th day of July 2021. The accident involved motor vehicle KCQ 073W/ZG1117 Sino truck. The driver of the said motor vehicle lost control veered off the road and rammed into the respondent's residential corrugated iron sheets premises. As a result, the respondent claimed that he suffered some material loss.

2. The parties recorded consent on liability at 95%:5% in favour of the respondent. The learned trial magistrate delivered judgment on the 30th day of August 2022 and awarded Kshs. 2, 625, 000/= after factoring in contributory negligence.

3. The appellant was dissatisfied with the award and filed this appeal through the firm of Okong’o, Wandago & Company Advocates. The following grounds of appeal were raised:a.The learned trial magistrate erred in law and fact when he awarded kshs.2, 264,000/- an amount which he plucked from the air as mesne profits when no credible evidence was led in that regard when mesne profits are an aspect of damages in the nature of specials which had to be specifically pleaded and strictly proved before they could be awarded.b.The trial magistrate further erred when he held that the fact that a consent judgment on liability and quantum, in the circumstances of the suit was before him.c.The learned trial magistrate erred in both law and in fact when he awarded general damages for loss of property in the sum of kshs.2,500,000/- an amount which had neither been prayed for in the suit, specifically pleaded in the plaint and or strictly proved by any evidence led at the trial.d.The learned trial magistrate erred in both fact and law when he failed to appreciate that the value of the improvements on the property, the semi-permanent structure on the land, part of which appears to have been damaged in the accident could not exceed kshs.800,000/- and therefore the amount of kshs.2,500,000/- which he plucked from the air and awarded to the respondent as the value of the lost property had no basis.e.The trial magistrate therefore erred in both law and in fact when he made an arbitrary, injudicious, and excessively high and unreasonable award in the circumstances.f.The learned trial magistrate further erred in fact and in law when, having held that the value of the property before the damage was not established, meaning that there was no proof in support of the claim for ksh.3,186,200/-, he further erred in law in failing to dismiss that aspect of the claim in its entirety.g.The learned trial magistrate erred in fact and in law in failing to appreciate that the value of lost property claimed in a suit is an aspect of special damages which must be specifically pleaded in the plaint and strictly proved by way of evidence at the trail before they can be awarded, and do not form part of general damages which can be awarded in the discretion of the court.h.The learned trial magistrate erred in both fact and in law when he failed to appreciate that the respondent failed to discharge the burden of proof in the circumstances of the case and therefore there was no basis for the awards which he made to the respondent.i.The learned trial magistrate erred in both fact and law when he decided the case against the weight of evidence which had been led at the trial, and in awarding that which had not been claimed in the suit and or proved at the trial.

4. The respondent opposed the appeal through the Everlyne Kuke & Company Advocates firm.

5. As the first appellate court, it is my responsibility to carefully review all of the evidence presented and take into consideration that I did not have the opportunity to observe the witnesses testify and their behavior. I will follow the principles outlined in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, which states that the first appellate court must examine and assess the evidence that was presented in the trial court, and then come to its conclusions on the matter.

6. In his plaint the respondent had pleaded as follows:

6. The plaintiff avers that the total estimated cost of the damaged perimeter wall and all the 11 rental semi-permanent houses is valued at Kshs.3,186 200 only which he now claims.

7. The plaintiff further avers that from the damaged semi-permanent houses which were all occupied by his tenants, he was receiving an average monthly rent of Kshs. 50,000 and he has since the date of the accident lost the monthly income, which he now claims as he can no longer continue with the business.

8. The plaintiff avers that he has since then lost mesne profit and claims for the same.

7. Section 2 of the Civil Procedure Act defines mesne profits as follows:“mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;

8. A claim of mesne profits must be pleaded, and the claimant must demonstrate to the court how the same was arrived at. In the case of Peter Mwangi Mbuthia & another vs. Samow Edin Osman [2014] eKLR, the Court of Appeal while dealing with an issue of mesne profits stated as follows:We agree with counsel for the appellants that it was incumbent upon the respondent to place material before the court demonstrating how the amount that was claimed for mesne profits was arrived at. Absent that, the learned judge erred in awarding an amount that was neither substantiated nor established. [Underlined for emphasis]In the instant case, I will address my mind to the methodology employed by the learned trial magistrate, if any, to award the impugned mesne profits.

9. One way of proving that the respondent used to earn monthly rent from the damaged units, is by production of copies of receipts he had issued. He indeed did produce the copies of receipts whose serial numbers are: 37,38, 39, 40, 41,43,44, 45, 46, 47, 49, 50, 51, 53,55, 57, 58, 59, 60, 61, 62 63, 64 & 65. After perusing the said copies, I have made the following observations:a.Receipt number 37 issued to Judith Awuor is dated 11th of June 2021 whereas the rest of the receipts from number 37 to 57 were issued between the 1st of April 2021 and the 6th of June 2021. There was no attempt to explain why this discrepancy existed.b.On 1st April 2021 Apollo was issued with receipts numbers 39 and 41 for Kshs. 7,500 each. Again, this discrepancy was not explained.c.For these four months the receipts exhibited added up to Kshs. 102, 600. This would mean that he was getting Kshs.25,650/= and not Kshs.50,000/= as pleaded.

10. The evidence of Joel Ombati Nyamweya (PW2), the valuer, further complicated the respondent’s evidence. He testified that the respondent and his family lived on the property. The respondent was not candid on what income he used to generate from the premises.

11. I therefore find that he did not prove the mesne profits lost to be entitled to an award. I set aside the mesne profits of Kshs.264,000/= awarded by the trial court.

12. The valuers’ report had the salient points:a.Market value of improvements………………………………........Kshs 800,000. 00b.Total value of households……………………………………… Kshs. 2,226,200. 00c.Disturbance 15% ………………………………………………... Kshs. 120,000. 00

13. I agree with the appellant that the respondent was not entitled to the value of households. This ought to have been claimed by his tenants. Equally, he was not entitled to disturbance at 15%. I therefore set aside Kshs. 2,500,00 award and substitute it with an award of Kshs 800,000. 00 which was the market value of his property. It will be subject to 5% contributory negligence.

14. The appellant will get half of the costs in this appeal and the trial court.

DELIVERED AND SIGNED AT HOMA BAY THIS 8TH DAY OF NOVEMBER 2023KIARIE WAWERU KIARIE.....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR