[2023] KEHC 25601 (KLR)

Raiplywoods v Warui (Civil Appeal E011 of 2021) [2023] KEHC 25601 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25601 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Civil Appeal E011 of 2021

RB Ngetich, J

November 16, 2023

Between

Raiplywoods

Appellant

and

Joseph Warui

Respondent

(Being an appeal from the judgement and decree of Hon A. Towet-Senior Resident Magistrate's Court delivered on 8. 06. 2021 at Eldama Ravine PMCC No. 98 of 2019 between Joseph Warui and Raiplywoods (K) Ltd)

Judgment

Background 1. The Respondent herein filed a suit through a Plaint dated 7. 08. 2019 claiming material damages following a road traffic accident which occurred on or about 11. 12. 2012 at around 1430hrs along Nakuru-Eldoret road at Timboroa area involving Respondent's motor vehicle Reg. No. KCG 834Q which collided with the Appellant’s motor vehicle Reg. No. KAU 006A, owned by the Appellant thereby occasioning material damage on Respondent’s vehicle.

2. The Appellant filed its statement of Defence dated 22. 8.2019 denying the claim and the matter proceeded for hearing with the Respondent calling three (3) witnesses. The Appellant did not call any witness.

3. Upon concluding hearing, the trial Court delivered its judgement in favour of the Respondent as against the Appellant whereby the trial Court held the plaintiff 100% liable for the accident and awarded to the Respondent a total of Kshs. 2,900,260/= being; special damages for motor vehicle value of Kshs. 1,300,000/=, assessors fee of Kshs. 5,800/=, towing charges of Kshs. 28,000/=, motor vehicle search of Kshs. 1,000/= and loss of profits of Kshs. 1,565,490/=.

4. The Appellant being aggrieved by the decision of the trial court filed this instant appeal on both liability and quantum raising 10 grounds of appeal.a.That the learned trial Magistrate erred in law and fact by holding the Appellant 100% liable for the accident when there was no sufficient evidence to support that findingb.That the learned trial Magistrate erred in law and fact in awarding the Respondent both value of the motor vehicle and loss of user/profit when the said motor vehicle is a write off.c.That the learned trial Magistrate erred in law and fact by awarding the Respondent both pre-accident value and loss of user of the motor vehicle which amounts to double compensation.d.That the learned trial Magistrate erred in law and fact by awarding the loss of user/profit for Kshs. 1,565,460/= which was not proved as is by law required.e.That the learned trial Magistrate erred in law and fact in over relying on the evidence of the Respondent's which was not corroborated.f.That the learned trial magistrate erred in law and fact by awarding the Respondent motor vehicle value of Kshs. 1,400,000/= which were not proved to the required standards.g.That the learned trial Magistrate erred in law and fact in disregarding the relevant evidence on record hence resulting in a wrong decision.h.That the learned trial Magistrate erred in law and fact in failing to consider the Appellant's submissions and legal authorities relied upon in support to the defence thereof.i.That the learned trial Magistrate erred in law and fact by over relying on the Respondent's submissions and legal authorities which were not relevant and without addressing his mind to the circumstances of the case.j.That the learned trial Magistrate's decision albeit, a discretionary one, was plainly wrong.

5. The appeal proceeded by way of written submissions.

Appellants Submission 6. In submissions filed, the Appellant identified the following as issues for determination: -a.Whether the learned trial Magistrate erred in holding the Appellant 100% liable for the accident (Grounds 1, 7 and 10).b.Whether the learned trial Magistrate erred in awarding the Respondent both for the pre-accident value and loss of user thereby amounting to double compensation (Grounds 2 and 3 of the Memorandum of Appeal) Whether the learned trial Magistrate erred in awarding loss of user/profit when it was not proved (Ground 4 of the Memorandum of Appeal)c.Whether the learned trial Magistrate erred in awarding the value of motor vehicle of Kshs. 1,400,000/= when it was not proved (Ground 6 of the Memorandum of appeal)d.Whether there was a miscarriage of justice (Grounds 5, 8 and 9 of the Memorandum of Appeal)e.Who should bear costs of this appeal?

7. In arguing the appeal, the Appellant combined Grounds 1, 7 and 10 and Grounds 2 and 3 as one issue and ground 6 as a separate issue. On whether the learned trial magistrate erred in holding the appellant 100% liable for the accident, the Appellant submits that it is not in dispute that an accident occurred on 11. 12. 2012 involving motor vehicle Reg. No. KAU 006A and Motor vehicle Reg. No. KCG 834Q and it is also not in dispute that both drivers of the two motor vehicles died as a result of that accident.

8. That it is trite law that the burden of proof is always on the one alleging a set of facts to prove them as provided for under Section 107 and 108 of the Evidence Act and so the burden of proof at all times lay with the Respondent to prove the case and not the Appellant.

9. That the burden of proof is not lessened even in situations where the Appellant does not call any witness to testify. They place reliance in the case of Bwire V Wayo & Sailoki (civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24January 2022) (Judgment) where the Court, in allowing the appeal held that;“Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintiff, and had he applied his mind to the law, he would have held there was nothing for the appellant to rebut since the Respondent has not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety"

10. The Appellant submits that the trial Magistrate in his judgement on the aspect of liability only put his mind to the fact that the Appellant did not call any witness to substantiate its claim and not whether the Respondent had actually proved his case on a balance of probabilities as is required in law. In law, it is only the evidentiary burden that shifted to the Appellant, the trial Magistrate did not analyze the evidence on record to determine whether the Respondent had actually proven his case for the Appellant to rebut the evidence adduced. That he ought to have borne the peculiarity of these circumstances in mind when making his determination.

11. It is the Appellant's submission that this evidentiary burden did not shift to the Appellant at all and it is imperative to note that the Respondent adduced secondary evidence and not direct evidence; that none of the witnesses called by the Respondent witnessed the accident.

12. It is the Appellant's submission that the trial Magistrate misdirected himself by over relying on hearsay evidence to determine that the Appellant was wholly to blame for the accident.

13. The Appellant further submitted that PW2 the police officer was emphatic that when he visited the scene of the accident, the point of impact was at the yellow line which means that the accident occurred at the middle of the road but he however failed to produce the sketch maps before the trial Court to assist the Court determine who exactly was on the other party's lane and in the absence of such crucial information, it is doubtful that the trial Court rightly exercised its mind in determining that it was the Appellant's driver who was to blame for the accident. That there is a possibility that it was actually the Respondent's driver who was on the rightful lane of the Appellant's driver.

14. The appellant cited the case of Postal Corporation Ltd VS Dickens Munayi (2014) eKLR where the court stated as follows:-“In my view, it was only sketch plans of the scene that would clearly map out how the accident occurred and particularly where the point of impact was. Lack of this crucial piece of evidence leads me to doubt the entire evidence of PW2 and 3. It also cast benefit to the defence case that probably it could be as well the Respondent who pulled to his lane."

15. The Appellant submitted that if indeed the accident occurred at the yellow line on the middle of the road and from the impact of the motor vehicles and the deaths of both of the drivers, the Respondent cannot escape the fact that his driver of motor vehicle Reg. No. KCG 834Q was over speeding at the time of the accident, hence was unable to avoid the accident and exercise due care for a reasonable person in the circumstances to control the motor vehicle in time to avoid a head on collision.

16. They submit that the learned trial Magistrate in arriving at his finding on liability relied on two cases Edward Muriga Through Stanley Munya Vs Nathaniel D.schuller Civil Appeal No. 23 Of 1993 And Autar Singh Bulua And Another Vs Raju Govingj, Hcca No. 548 of 1999 which were to the effect that since the efendants in those matters failed to call witness, the plaintiff's case stood unchallenged but failed to take into account the fact that each case is determined on its own merits and distinguish fact of the two cases and the case herein and address unique issues to these set of facts and thereby arrived at an erroneous decision, which ought to be set aside.

17. They urge this court to apportion liability equally as there is no cogent evidence to prove that it was the Appellant's driver who was at fault since the accident occurred at the middle of the road and where there is doubt on who is to blame for an accident, courts usually apportion liability in the ratio of 50%:50% between the Appellant and the Respondent.

18. The Appellant submit that it is trite law that an Appellate court will interfere with a trial court's judgement, when the trial court failed to consider a relevant factor. They submit that PW3 Anthony Ndegwa Ndiari, a motor vehicle assessor working with Safety Surveyors Limited testified that the suit motor vehicle was a write off and was never repaired. That the witness testified that the pre-accident value of the motor vehicle was Kshs. 1,400,000/=, and salvage value was Kshs. 200,000/= which was valued at Kshs. 100,000/=.

19. They contend that the trial Court in the judgement dated 8. 6.2021 awarded the Appellant both for the pre-accident value of the motor vehicle and for loss of user and invited this court to make a determination whether by awarding loss of user where a motor vehicle was declared a write off/total loss as a result of an accident amounts to double compensation.

20. The Appellant relied on the case of Raymond Muindi Simon VS Takaful Insurance of Africa (2019) eKLR where the Court stated as follows:-“Where a vehicle has been declared to be written off, a claim for loss of user ought not to be entertained since an insured is supposed to be returned to the position he was in, before the accident. Therefore, granting a prayer for loss of user would amount to double compensation."

21. The Appellant further argues that the claim for loss of user is a special damage which ought to be specifically pleaded and strictly proved but on cross examination, PW1 Joseph Warui Gatere admitted that he had nothing before court to prove that the motor vehicle was registered under Classic Luxury Shuttle for the purposes of carrying passengers and he further testified that the receipts produced in support for the claim of loss of user was only a rough estimate and not the actual income that the motor vehicle used to bring in; and he testified that he paid KRA returns as a matatu owner but had nothing in Court to prove that.

22. The Appellant further submit that the award was on the basis that the receipts produced for loss of user were not challenged, which is untrue as per the court record; further that the Respondent in his demand letter indicated that the motor vehicle was making a net profit/income of Kshs. 3,500/= per day produced as PExh11(a) but he tendered documents which contradicted this and claimed a higher amount than what was indicated; that the documents produced in support of the alleged daily and earning expense of motor vehicle Reg. No. KCG 834Q did not suffice to prove loss of profits. They submit that such evidence was not acceptable as it did not reflect the correct accounting practice and cited the case of Ryce Motors Limited & another VS Elias Muroki [1996] eKLR where the court stated as follows: -“The learned judge had before him by way of plaintiff's evidence Exhibits 2 and 3 as proof of alleged loss of profits. Exhibit 2 consisted of figures jotted down on pieces of papers showing dates and figures. Nothing about these pieces of paper can be accepted as correct accounting practice to enable the court to say these are the accounts upon which the court can act.... These said pieces of paper do not show at all if the alleged accounts were in respect of the "matatu.”

23. The Appellant further submit that the trial magistrate did not give reason for its decision; and the trial court erred in awarding the value of motor vehicle of kshs. 1,400,000/= when it was not proved and it should have been pre-accident value less the salvage value. That salvage value being Kshs. 200,000/, 1,200,000/=should have been awarded for the Respondent's motor vehicle.

Respondent’s Submissions 24. On liability, the Respondent submit that it would be proper to look at the pleadings; that the Respondent/plaintiff in his pleadings and evidence blamed the appellant/defendant's driver for the accident as per the particulars of negligence highlighted under paragraph 4 of the plaint. They maintain that there was no eye witness summoned to testify in the case and indeed it is important to note that both drivers who were involved in the accident died on the spot.

25. The Respondent submit that P.C. Benson Wambua (PW2) who was among those who visited the scene of the accident was categorical that it was the appellant/defendant's driver who was to blame for the accident since he was overtaking a fleet of motor vehicles along a continuous yellow line which prohibited overtaking of vehicles; and the point of impact was on the left side of the road towards Eldoret from Nakuru and that was the lane rightfully used by the respondent/plaintiff's motor vehicle. He produced Police Abstract as P.Ext. 5 which indicated that the appellant/defendant's motor vehicle KAU 006A Mitsubishi canter was to blame for the accident. The testimony of (PW2) remained uncontroverted.

26. The Respondent cited the case of Josephat Kamau Wamburu -VS- John Kamare and 3 Others [20171 eKLR at page 4 of its Judgment thereof held as follows:“17. ..For the above reasons, I am satisfied that the 2nd Defendants Matatu Registration Number KXD 140 was negligently driven, was carelessly overtaking another vehicle on a downhill slope on a no overtaking zone and continuous yellow line, and on an excessive speed that caused it to lose control and veer onto the path of the 1st defendant's lorry Registration No. KZL 129 causing a head-on collision I find the 2nd defendants vehicle M 140 wholly to blame for the accident from which the plaintiff sustained serious injuries, and therefore liable in damages to the plaintiff. "" (Emphasis Added).

27. The Respondent submit that the trial magistrate had the advantage of watching the demeanor of the witness (PW2) as he testified and chose to believe the witness. The witness (PW2) had no reason to lie regarding the blameworthiness in respect of the accident after having visited and assessed the scene of the accident: That the said witness (PW2) is an officer in authority who made a factual finding that the appellant's driver was to blame for the accident, upon making an evaluation of the scene of accident. There was no reason for the police officer (PW2) to adduce unreliable testimony especially where several people had lost their lives including both the drivers of the two motor vehicles which had collided.

28. That it is a known Traffic Code Regulation that overtaking along a continuous yellow line is prohibited. That the evidence given stated that the collision occurred while the respondent/plaintiff's motor vehicle was on its rightful lane meaning that the appellant's vehicle traversed onto the lane of the respondent's motor vehicle at the time of the accident.

29. The Respondent submits that in the absence of any other explanation to show that the appellant's driver was on a balance of probabilities not negligent, then a finding of negligence is inevitable on the part of the Appellant for want of a probable explanation. That the court should bear in mind that the appellant/defendant did not summon any witness so as to adduce evidence in support of the pleadings made in the defence. The appellant/defendant did not give evidence to controvert the factual elaborations of the plaintiff's witness (PW2). They rely in the case of Abdisheikh D/O Salim Abdisheikh -vs- Wanva & Another [1993) KLR.

30. The Respondent cited the case of James Kihara Wanjohi -vs-china Road And Bridge Corporation (k) Ltd Dols) eKLR at page 3 of the judgment thereof while quoting the decision of Janet Kaphiphe Ouma & Another Manes Stopes International (Kenya) H.C.C.C. NO.68 OF 2007 stipulated as follows:“..In this - matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of the witness remains uncontroverted and the statement in the defence therefore remains mere allegations,,,,,,,,,. Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence." (Emphasis Added).

31. The Appellant submit that civil cases are decided on the basis of a balance of probabilities and in the circumstances of this case, the respondent /plaintiff had obviously put something on his side of the scale whereas the appellant/defendant had failed to do so, resulting in the balance tilting in favor of the respondent /plaintiff on the critical issue of liability. That the respondent /plaintiff's facts on how the accident occurred having been unchallenged, then the appellant / defendant was 100% to blame as was declared by the trial court in its judgment on liability; that the appellant's vehicle was proceeding downhill while the respondent's vehicle was moving uphill and the collision occurred on the lane of the respondent's vehicle which was on the left-hand side of the road while headed towards Eldoret from Nakuru. There was no conflicting evidence regarding the point of impact/collision and the suggestion by the appellant/defendant that liability should be apportioned at 50: 50 is farfetched and imaginary as there is no tangible ground given so as to make a finding of contributory negligence, on the part of the respondent's driver.

32. On the issue of double compensation, the Respondent submit that the appellant has made heavy reliance on the decision of Raymond Simon -vs- Taraful Insurance of Afrika 2019 eKLR to suggest that awarding value of the motor vehicle together with loss of user/profits would amount to double compensation; however, the said decision is distinguishable from this case as the above decision was premised on contract of insurance and not on damages under Tort Law and it is true that under contract of insurance, the insured having suffered loss is only entitled to be put back to the position he was prior to the time of damage or loss. The insured cannot claim any other consequential loss like loss of profits because such loss is not covered or anticipated under the policy of insurance. That the court of appeal has distinguished damages that can be awarded under Tort Law against a tort feasor and the damages that would be awarded under insurance contract and relied on the case of Corporate Insurance Company -vs- Loise Wanjiru Wachira X19961 Eklr and the case Of Madison Insurance Company Ltd Vs Solomon Kihara T/a Kisii Physiotherian Clinic (2004] eKLR.

33. That from the foregoing, it is evident that the case law authority relied upon by the appellant of Raymond Muindi Simon [Supra", is distinguishable since the decision was premised on damages involving contract of insurance and the above decision is not applicable to the circumstances of this matter under Tort Law.

34. That the law recognizes that a claim for loss of user is distinct from compensation for value of the vehicle albeit the immediate compensation for pre- accident value of the vehicle may reduce the period for loss of user/profits and quoted the book Clerk & Lindsell on Torts 17th Edition paragraph 5-31 at pages 288-289, the author's state as follows:“SUBPARA 5-SUBPARA 31;Damages For Loss Of Use.“In addition to having to pay the cost of repairing his damaged goods the owner will also be deprived of their use during the period needed for their repair, and for this loss he is entitled to recover The question is what is the use which, but for the wrong, he would have had of his goods and what he would otherwise have earned by their use paragraph 5- 33 Even in the case of non-profit-earning chattels the plaintiff is entitled to damages for loss, of use. "

35. Counsel submit that in this case, the appellant/ defendant failed to make prompt payments to the respondent/ plaintiff for the pre- accident value of his motor vehicle which was a matatu and the plaintiff is therefore entitled to compensation for loss of profits (earnings) and relied on the case of Unga Limited & Another -vs- James Njuguna Nioroge] eKLR.

36. The Respondent further submit that the learned trial magistrate applied her mind to the correct principles of law when she awarded the respondent/plaintiff compensation for the value of the damaged vehicle and also damages for loss of user and allegation that there was double compensation is utterly misguided and should be dismissed.

37. On whether loss of user profits was proved, the respondent/plaintiff highlighted Paragraphs 10 and 11 of the plaint, the particulars and computations resulting in the daily profits and the summation of loss of profits for 234 days from the date when the motor vehicle was destroyed to the date of filing suit i.e. between 11th December, 2018 and 5th August,2019.

38. That the respondent /plaintiff produced 26 receipts P.Exh. 9 to demonstrate the daily earnings of the motor vehicle KCG 834 Q prior to the date of the accident for a period of 30 days falling between 10th November,2018 and December, 2018. That the respondent/plaintiff testified that the motor vehicle KCG 834 Q did not work on Sundays and thus in every month the earnings were for 26 days. The total earnings computed from the 26 receipts P.Ext. 9 came to Kshs. 200,800/= and when divided by 30 days it gave an average daily earning of Kshs.6,690/=. And were multiplied by the 234 days exhibiting loss of profits (earnings) the summation came to Kshs.1,565,460/=. The evidence on the daily earnings and summation for the period of 234 days was not challenged or controverted by the defendant.

39. The Respondent submit that the said sum of Kshs.1,565,460/= was rightfully allowed by the trial court (See 26 receipts produced as P.Ext. 9 at pages 74-82 of the Further Supplementary Record of Appeal). That the appellant/defendant has suggested that the respondent/ plaintiff had nothing to prove that the motor vehicle KCG 834 Q was registered as a matatu. They state that the respondent/plaintiff had testified that he operated a matatu registration number Toyota KCG 834 Q it would ferry 13 passengers it operated under luxury shuttle plying Nakuru -Kakamega Road. The respondent/plaintiff produced the police abstract P.Ext. 5 which showed that the motor vehicle KCG 834 Q was a Toyota matatu registered under the classic luxury shuttle.

40. That the insurance sticker produced as P.Ext.4 displayed the vehicle KCG 834 Q was insured as a PSV- matatu. The motor vehicle assessor's report P.Ext. 6a revealed photos of the wreckage for KCG 834 Q, which showed that it was a Toyota matatu with printed letters on the body of the vehicle as "Classic Luxury Shuttle". The motor vehicle inspection report produced as P.Ext. 7 showed that the vehicle KCG 834 Q was a Toyota matatu under the classic luxury shuttle.

41. The Respondent submitted that there was sufficient evidence adduced before the trial court to prove that the respondent/ plaintiff's motor vehicle was a Toyota matatu. The testimony of (PW2) the police officer indicated that Five (5) Passengers on board the Toyota matatu KCG 834 Q had passed away as a result of the accident of 11th December 2018. Meaning that as at the date of accident, the motor vehicle KCG 834 0 was running operations as a matatu. The 26 receipts produced as P.Ext.9 for daily earnings highlight on the daily income less expenses incurred resulting in the net balance given to the plaintiff (owner) by the driver. The 26 receipts clearly indicate that the vehicle KCG 834 Q made travels from Nakuru to Kakamega and the return trip from Kakamega back to Nakuru. Therefore, the respondent/ plaintiff's vehicle made earnings of Kshs. 6. 6901= per day derived from average earnings for a period of 30 days.

42. That there was no evidence adduced by the appellant/ defendant to challenge the daily earnings submitted by the respondent/ plaintiff. It would have been very easy for the appellant / defendant to secure records of earnings from another matatu vehicle plying the same route of Nakuru - Kakamega Road so as to contrast the evidence given by the respondent/ plaintiff. That at some point during the hearing of the plaintiff's case the appellant/respondent had filed an interlocutory application dated 2nd May, 2020 after the testimony of the plaintiff (PW1) which sought to strike-out the plaintiffs suit on the grounds that the plaintiff in his pleadings under paragraph 10 of the plaint had pleaded matters of evidence which was dismissed for lack of merit and on ground that that special damages must be specifically pleaded; that Paragraph 10 of the plaint had tabulated the loss of profits and the court in its ruling found that it specifically pleaded as required by law past earnings for the matatu which were special damages.

43. That additionally, the respondent/ plaintiff only made a claim for loss of profits for an average period of 26 days in a month instead of 30 days because the driver was given off duty days which would be utilized during repairs and servicing of the motor vehicle. That in the-case of David Maina -vs- Marv Wanjiku Wanjie & Another [2020] eKLR the court held as follows at pages 6 & 7:“While I agree with the computation for loss of use, I find that the court applied the wrong principle by making an assumption that the subject motor vehicle would be at work day in and day out without hitches. It is improbable that the vehicle would operate continuously for the whole period. It certainly would have from time to time be grounded for repairs. It would be affected by external factors like strikes in the industry. It would be affected by fluctuations of business based on the state of the economy and obviously its efficacy would dwindle as it got older. The court ought to have given due allowance for these circumstances and discounted the period for earnings reasonably. I accordingly find fault with the computation of damages for loss of use and considering all the circumstances, discount the period of earning from 3 years to 2 years. The total sum calculates thus; Kshs.4,200 x 52 weeks x 6 days x 2 years = Kshs.2, 620, 800/-. " (Emphasis Added)

44. Further that in view of the above, it is evident that the period of computation on earnings for 234 days is fairly reasonable since the computations have not exceeded one (1) year. The learned trial magistrate did not make any error when she awarded the claim for loss of profits as specifically pleaded and proved. The appellant's ground that the claim for loss of profits was not proved should be dismissed as the same is unfounded.

45. On whether the award for value of motor vehicle at Kshs. 1,300,0001= was proved, the Respondent submits that they summoned (PW3) who was a motor vehicle assessor and he was able to explain the computations regarding the pre-accident value of the motor vehicle KCG 834, Q Toyota matatu and which value was given as Kshs.1,400,000/=. The salvage value of the motor vehicle was given at Kshs.100,000/=. The witness (PW3) testified that it was uneconomical to replace parts or repair the motor vehicle KCG 834 Q since the motor vehicle parts, plus labour and VAT would have cost Kshs.1,436,660/=.

46. That the witness maintained that the salvage value was Kshs.100,000/= as indicated in all other pages of the assessment report (P.Ext.6a) despite the fact that page 4 of the report had a typographical error indicating that the salvage value was Kshs.200,000/=. The evidence adduced by the motor vehicle assessor was uncontroverted.

47. The Respondent submit that the pre- accident value of the vehicle and the salvage value of the vehicle had been pleaded in the plaint. The motor vehicle assessor's report P.Ext. 6a had photos exhibiting the extensive damage on the vehicle KCG 834 0, after the accident. The assessor (PW3) admitted that one of the pages of the report had a typographical error indicating salvage value of the vehicle as Kshs.200,000/= instead of the Kshs.100,000/= but all the other pages of the report stipulated the salvage value of the vehicle KCG 834 0 as Kshs.100,000/=.

48. Further that the evidence of the motor vehicle assessor (PW3) was not challenged by the appellant/defendant and thus the value of the damaged motor vehicle was allowed as pleaded and proved at the sum of Kshs.1,300,000/=. The court considered the pleadings and evidence adduced in arriving at the award of net value of the vehicle at Kshs.1,300,000/= and there is no justifiable reason to interfere with the award of Kshs.1,300,000/= for net value of the vehicle KCG 834Q.

49. On argument that the respondent/plaintiff admitted that he was pursuing compensation both from his insurance company and the appellant, the Respondent submitted that the appellant is obviously misguided because the insurance certificate of the respondent P.Ext. 4 and the police abstract P.Ext. 5 show that the respondent/plaintiff had a third-party insurance policy and was therefore not legally mandated to pursue his insurance for compensation; further the respondent/ plaintiff testified during examination in chief that vehicle KCG 834 Q. had a third-party insurance with Invesco and did not say he was pursuing his insurance for compensation during cross examination as submitted by the appellant.

50. The respondent submit that the appellate courts can only set-aside the judgment of the trial court if satisfied that the trial court exercised its discretion wrongfully in light of the facts and evidence. That the total amount awarded to the respondent/plaintiff of Kshs.2,900,260/= was in the form of special damages which were specifically pleaded and proved as required by law; and on compensation of Kshs:1. 565 460/= for loss of user for a period of 234 days, the same was a reasonable claim. That the respondent/ plaintiff would have pleaded for loss of user up to the time the value of the vehicle was paid by the appellant- tortfeasor, but due to the aspect of Mitigation of Losses and taking into account that the claim arose out of an accident, then the respondent/ plaintiff was bound to consider the position of the appellant/defendant that it did not in its duties or normal line of business anticipate such a claim. The respondent/ plaintiff only claimed for the period of loss suffered prior to filing of the suit; and demand Notices sent to the appellant - P.Ext 11(al and P.Ext 11(b) but it chose not to settle the respondent's claim.

51. That respondent/ plaintiff in our case pleaded at paragraphs 10 & 11 of the plaint about the mean average earnings of his Motor Vehicle KCG 834 Q prior to the date of the accident. The mean average earnings were computed for a period of 30 days but the respondent / plaintiff discounted the period to 26 days because of the four (4) off duty days within a month. That the total earnings in the 26 receipts produced as P.Ext. 9 when divided by 30 days gave an average daily earning of Kshs.6,690/= which when multiplied by 234 days for the period between the date of accident and date of filing suit, gave a total loss amounting to Kshs.1,565,460/=.

52. That the receipts and motor vehicle assessor's report that were produced in court were not challenged.

53. On whether there is a competent appeal in light of the uncertified copies of the decree and erroneous figures in the decree extracted, the Respondent submits that the decree exhibited by the appellant at page 187 of the Record of Appeal has not been certified as required by law. The said decree has been stamped and sealed but has not been certified as a true copy of the original.

7. The Respondent submit Order 42 Rule 2 of the Civil Procedure Rules provide that where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order and the court need not consider whether to reject the appeal summarily under Section 79B of the Act until such certified copy if filed. "

54. The Respondent’s argument is that Order 42 Rule 2 of the Civil Procedure Rules is coached in mandatory terms and the appeal therefore incompetent, lacks merit and urged this court to dismiss with costs to the respondent.

Analysis and Determination. 55. This being a first appellate court, I have the duty of re-evaluating evidence adduced before the trial court to arrive at an independent determination. This I do with the knowledge that unlike the trial court, I did not have the opportunity of taking evidence first hand and observe the demeanor of witnesses. This position was held in Selle vs. Associated Motor Boat Co. [1968] EA 123 where the court state das follows: -“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

56. Further, East African Court of Appeal in Ramjibhai vs. Rattan Singh S/O Nagina Singh [1953] 1 EACA 71 held as follows:-“This Court will not disturb a finding of a trial Judge merely because of an irregularity in the format of the judgement if it thinks that the evidence on the record supports the decision.”

57. In view of the above, I have perused and considered record of appeal together with submissions filed and consider the following as issues for determination:-i.Who is to blame for the accident and to what extentii.Whether the appellant has demonstrated reasons for this court to interfere with assessment by the trial court.i.Who is to blame for the accident and to what extent

58. It is not in dispute that an accident occurred on 11. 12. 2012 involving motor vehicle Reg. No. KAU 006A and Motor vehicle Reg. No. KCG 834Q. Drivers of the two vehicles died as a result of the accident. what I wish to consider whether the trial magistrate erred in holding that the Appellant was 100% liability for the accident.

59. It is trite law that the burden of proof is always on the one alleging a set of facts to prove them as provided for under Section 107 and 108 of the Evidence Act and so the burden of proof at all times lay with the Respondent to prove the case and not the Appellant.

60. The Appellant submits that the trial Magistrate in his judgement on the aspect of liability only put his mind to the fact that the Appellant did not call any witness to challenge the Respondent’s evidence rather than determining whether the Respondent had proved his case on a balance of probabilities as is required in law that, it is only the evidentiary burden that shifted to the Appellant, that the trial Magistrate did not even analyze the evidence on record to determine whether the Respondent had proven his case for the Appellant to rebut the evidence adduced. It is the appellant’s argument that evidentiary burden did not shift to the Appellant at all; that there was no direct evidence but the Respondent adduced secondary evidence; that there was no eye witness called to testify to prove that it was the Appellant's driver who was to blame for the accident.

61. Record show that pw2 the police officer who visited the scene said the point of impact was at the yellow line in the middle of the road. Evidence adduced is that the driver of KAU 006A Was overtaking a fleet of vehicle and collide with Reg. No. KCG 834Q.There is no doubt that the driver of Motor vehicle Reg. No. KAU 006A was substantially to blame for overtaking a fleet of motor vehicles in continuous yellow line.

62. However, the driver of Reg. No. KCG 834Q who was driving the vehicle from the opposite direction also had responsibility of slowing down and trying to swerve to avoid the accident. Pw2 a police officer who visited the scene testified that the point of impact was on the left side of the road towards Eldoret from Nakuru which was the lane for the respondent/plaintiff's motor vehicle. He produced Police Abstract P.Ext. 5 which indicated that the appellant/defendant's motor vehicle KAU 006A Mitsubishi canter was to blame for the accident. There is no indication that the respondent’s driver tried to swerve to avoid the accident and the fact that there were fatalities which included both drivers demonstrate that they were moving in high speed. In my view the driver of Reg. No. KCG 834Q cannot escape without blame especially in situation where no attempts to avoid the accident have been demonstrated. No evidence was adduced to controvert pw2’s evidence in respect to point of impact.

63. In view of the above, I am of the view that the driver of motor vehicle KAU 006A Mitsubishi canter was to blame to a greater extent by overtaking a fleet of motor vehicles in a continuous yellow thereby causing the accident. I find that the appellant’s driver 80% liable for the accident and Respondent’s vehicle 20% liable.

(ii)Whether the appellant has demonstrated reasons for this court to interfere with assessment by the trial court. 64. In Ryce Motors Limited & Another v Elias Muroki [1996] eKLR, the Court of appeal clarified its earlier decision in Peter Njuguna Joseph & Another v Ann Moraa Civil appeal No 23 of 1991 (UR)as follows;“We are here concerned that with the actual loss of user of the vehicle which has been immobilized by the accident. The owner must take all reasonable steps to ensure that the vehicle is back on the road within a reasonable period. The owner must mitigate his damages by having the vehicle repaired if it is not a write off. If the vehicle is to be a write-off, then the owner is entitled to pre-accident value of the damaged vehicle. He would then be paid a reasonable figure for loss of user until such time he received the pre-accident value of the write-off vehicle.” [Emphasis mine]

65. From the above authorities, it is clear that a plaintiff whose vehicle was destroyed beyond repair and/or is a write off, is entitled to claim for both the pre-accident value of the chattel destroyed by the defendant’s tortuous act as well as loss of user. In the instant case, it is not disputed that the respondent’s motor vehicle was declared a “write off” as a result of the accident. This is supported by the evidence of the motor vehicle assessor PW 3 who testified that the said motor vehicle was a total loss. In the circumstances, I find that the trial court did not err in awarding the respondent both the pre-accident value of its motor vehicle and loss of user.

66. Record show that the respondent pleaded and proved loss of user by producing 26 receipts P.Exh. 9 to demonstrate the daily earnings of the motor vehicle KCG 834 Q prior to the date of the accident for a period of 30 days falling between 10th November,2018 and December, 2018. The respondent/plaintiff testified that the motor vehicle KCG 834 Q did not work on Sundays and thus in every month the earnings were for 26 days. The total earnings computed from the 26 receipts P.Ext. 9 came to Kshs. 200,800/= and when divided by 30 days it gave an average daily earning of Kshs.6,690/=multiplied by the 234 days exhibiting loss of profits (earnings) the summation came to Kshs.1,565,460/=. The evidence on the daily earnings and summation for the period of 234 days was not challenged or controverted by the defendant.

67. Contrary to appellant’s argument there is no evidence on record to prove that the motor vehicle KCG 834 Q operated as public service passenger vehicle, the respondent/plaintiff testified that the vehicle registration number Toyota KCG 834 Q operated as a matatu and it would ferry 13 passengers; it operated under luxury shuttle plying Nakuru -Kakamega Road. He produced the police abstract P.Ext. 5 which showed that the motor vehicle KCG 834 Q was a Toyota matatu registered under the classic luxury shuttle.

68. There is therefore no doubt that vehicle registration number KCG 834Q generated income and the award of Kshs 1,565,460/= was specifically pleaded and proved on a balance of probability hence the trial magistrate was correct in awarding the same.

69. In respect to the value of motor vehicle /=, the Respondent adduced evidence that pre- accident value of the vehicle was Kshs. 1,400,000 and also the salvage value of the vehicle had been pleaded in the plaint. They were pleaded in the plaint. The assessor (PW3) admitted that one of the pages of the report had a typographical error indicating salvage value of the vehicle as Kshs.200,000/= instead of the Kshs.100,000/= but all the other pages of the report stipulated the salvage value of the vehicle KCG 834 0 as Kshs.100,000/=. The pre-accident value less salvage is therefore Kshs.1,300,000/=.

70. In view of the above, I have no reason to interfere with award by the trial magistrate. The appeal partly succeed.

71. Final Orders: -1. Appeal on liability is allowed2. Liability is apportioned at 20:80 in favor of Respondent. Respondent to shoulder 20% liability and Appellant 80% liability3. Damages to remain as assessed by trial court. To be subjected to contribution as per order 2 above.4. Each party to bear own costs of appeal.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY ATKABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Kanyi Ngure for Respondent.Mr Khaemba for Appellant.