[2022] KEHC 1520 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 47 OF 2020

SCARCE COMMODITIES LIMTED.................................................................1ST APPELLANT

DAVID BUSIENEI.................................................................................................2ND APPELLANT

VERSUS

AUGUSTUS WAFULA WAMBATI..........................................................................RESPONDENT

(Being an Appeal from the Judgment and Decree of Hon. C. Menya Senior Resident Magistrate

delivered on 22/5/2020 in Eldoret CMCC No. 891 of 2016)

JUDGMENT

1. What is before this court is an appeal against the entire judgment and decree of the lower court in Eldoret CMCC No. 891 of 2016 rendered on 22nd May 2020. The plaintiff had instituted a suit by way of plaint for a claim of material loss as a result of a road accident that occurred on 16th March 2016 along the Eldoret Webuye Road. As a result of the accident the plaintiff’s business premises were damaged.

2. The trial court heard and determined the matter and entered judgment in favour of the Plaintiff. The defendant was found 100% liable and damages were awarded to the tune of kshs. 903,950/- plus costs and interest.

3. The defendant being dissatisfied filed the present appeal vide a memorandum of appeal. The appeal is based on the grounds that the trial court held the defendant 100% liable without analysing the evidence. Further, that there was no proof of material loss to warrant the award of damages. The appellant also faulted the valuation report for material loss and claimed it was not authenticated and could not be relied upon.

4. The appellant filed submissions on 16th March 2021, stating that the respondent did not produce a copy of the logbook or a motor vehicle search to prove ownership of the vehicle. There was no other evidence to corroborate the contents of the police abstract.

5. The appellant submitted that the material loss claim is a special damage claim and mist be specifically pleaded and proven; that the respondent was unable to quantify the money he spent on restructuring the premises thus the court erred in awarding him kshs. 160,451/- as damages. The respondent also failed to prove that there were items that were stolen from the premises to justify the award of kshs. 230,000/-.

6. The appellant submitted that the loss of business claim is a special damage claim which must be specifically pleaded and proved. He cited David Murithi Githaiga vs CFC Stanbic Bank Ltd (2019) eKLR and contended that there was no evidence produced to support the amount awarded. Further, with regard to the businesses that the respondent claimed were on the premises, he did not produce anything to show that he was allowed to run a butchery or a bar and a restaurant. The respondent was unable to prove that he was legally running the businesses that he was claiming loss of business for.

7. The respondent filed submissions on 7th April 2021, submitted that a police abstract could be used as proof of vehicle ownership as long as it is corroborated by other documentary evidence and is not rebutted. He cited Charles Nyambuo Mageto & Anor vs Peter Njuguna Njathyi (2013) eKLR.

8. The respondent submitted that the appellant did not challenge the items on the valuation report during the trial, and that the report ought to be taken as representing the correct market prices and the failure to produce any receipts was not fatal to the claim. He relied on Nkuene Dairy Farmers Coop Society Ltd & Anor vs Ngacha Ndeiya (2010) eKLR Nyeri Civil Appeal No. 154 of 2005 in support of this submission.

9. On the valuation for material loss for non-structural damage under grounds 3 and 4, the respondent submitted that the appellant did not produce a valuation to challenge their valuation. The items were specific items and ascertainment of damages for those items did not require any specialization.

10. On the stolen items the respondent submitted that the appellant did not challenge the evidence of the respondent that certain items were stolen pursuant to the accident. The court had the benefit of hearing the evidence and observing the witness demeanour and therefore was in a position to guide itself appropriately in making a determination.

11. Upon perusal of the pleadings, record of appeal and the submissions, I have identified the following issues for determination;

a) Whether the ownership of the vehicle was proven

b) Whether there was sufficient evidence of material loss of kshs. 160,451

c) Whether the material loss for non-structural damage was proved

d) Whether the award for stolen items was justified

e) Whether the award for loss of business was justified

Whether the ownership of the vehicle was proven

12. In Wellington Nganga Muthiora vs Akamba Public Road Services Ltd & Another,(2010) e KLR the Court of Appeal held:

“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”

13. Upon perusing the proceedings, it is evident that the appellant did not rebut the evidence or provide any proof to the contrary with regard to the ownership of the vehicle. The Police abstract was sufficient proof of ownership. Therefore, the trial court did not err in finding the appellant 100% liable upon finding that Motor vehicle registration number KCA 483 J belonged to the 1st Appellant.

Whether there was sufficient evidence of material loss of kshs. 160,451/-

14. In HCA No. 154 of 2005 Nkuene Dairy Farmer Co-operative Society Ltd -vs- Ngacha Ndeiya(2010) eKLR the court held;

“special damages in a material damage claim need not be shown to have actually been incurred, that the claimant is only required to show the extent of damage and what would cost to restore the damaged item as near as possible to the condition it was before the accident.”

It is therefore not fatal if the Respondent did not produce the receipts for repairs. The appellant did not challenge the valuation report and therefore I find that the same was correctly awarded.

Whether the material loss for non structural damage was proven

15. The appellant did not challenge the valuation of the items such as shelves, chairs and television screens. I am inclined to agree with the respondent that this is an afterthought as the appellant could have conducted a counter valuation. I reiterate the finding in Nkuene Dairy Farmer Co-operative Society Ltd -vs- Ngacha Ndeiya(2010) eKLR and find that the material loss for non-structural damages was correctly awarded by the trial court.

Whether the award for stolen items was justified

16. The respondent produced receipts of the items that he claimed were stolen from the premises as exhibit 7a-7c. However, is this proof that the items were stolen? The OB number that was cited as evidence was one for report of the occurrence of an accident and not for the theft of goods. I find that the respondent did not sufficiently prove that the items were stolen. I find that the award for stolen items was not in order as the respondent did not prove the same were stolen on a balance of probabilities.

Whether the award for loss of business was justified

17. The appellant challenged the award for loss of business on the basis that the businesses were not licensed. I note that the licenses were produced as exhibits 2,3a and 3b. The food license for the bar and restaurant was issued on 10th April 2016 in the respondent’s name. The license for one of the bars, issued on 26th May 2016 was in the name of one Susan Lusaka Wambati who the respondent claimed was his wife. The accident occurred on 16th March 2016. This therefore brings into question whether the respondent was legally running the Bar and restaurant at the time of the accident. On the evidence it is clear that he was not. Further, he did not produce a business permit or a certificate of business registration and admitted to the same in cross examination. Given that the license for Bomas 2 was in his wife’s name he cannot claim compensation for the same.

18. In the absence of a valid license at the time of the business the respondent cannot claim for business loss as he was operating illegally. Despite the records showing that there was business being conducted, the same was run illegally. It is trite law that he who comes to equity must come with clean hands. They cannot seek to be compensated for a business that they cannot prove was running legally at the time of the accident. On this ground the appeal succeeds and therefore the award for loss of business is set aside.

19. In the light of the foregoing, I am satisfied that the lower court’s award for loss of business and stolen items were unmerited. The judgment and decree dated 22/5/2020 is set aside and substituted by the judgment of this court in the sum of kshs.160,451 for material damages and kshs. 63,500/- for special damages totalling to kshs. 223,952/- together with interest and costs including the costs of the appeal.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH OF MARCH 2022.

E. K. OGOLA

JUDGE