[2023] KEHC 23750 (KLR)

Stanley v Wainaina (Civil Appeal E425 of 2022) [2023] KEHC 23750 (KLR) (Civ) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23750 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E425 of 2022

DAS Majanja, J

October 19, 2023

Between

Ndaa Katana Stanley

Appellant

and

Erick Kennedy Wainaina

Respondent

(Being an appeal from the Judgment and Decree of Hon. D. S. Aswani, Adjudicator/RM dated 9th June 2022 at the Nairobi, Small Claims Court at Milimani in SCCC No. E754 of 2022)

Judgment

1. By the judgment dated 09. 06. 2022, the Small Claims Court found the respondent fully liable for a road traffic accident that took place on 28. 08. 2021 involving the appellant’s motor vehicle registration No. KAD 161P and the respondent’s motor vehicle registration No. KCQ 911 G. The court awarded the appellant Kshs. 23,700. 00 and Kshs. 5,500. 00 on account of investigation and assessment fees respectively. The court held that the repair costs amounting to Kshs. 249,400. 00 cannot be awarded as the Appellant had failed to prove that he incurred repair costs.

2. In the memorandum of appeal dated 17. 06. 2022, the Appellant raises two grounds of Appeal namely:1. The Learned Magistrate disregarded the clear import of the provisions of rule 5 Sub-rule (1) (b) of the Small Claims Court Rules, 2019 and thereby arrived at the erroneous finding that in respect of a suit in the Small Claims Court, the award of repair costs can only be (made) for the amounts proved to have been spent by the Claimant on the motor vehicle as a result of the accident.2. The Learned Magistrate misapprehended and misapplied the clear provisions of rule 31 of the Small Claims Court Rules, 2019 and thereby erroneously arrived at a finding that the claimant failed to prove that repair costs were incurred and the same cannot be awarded.

3. Under section 38 of the Small Claims Court Act, the jurisdiction of this court is limited to matters of law. This means that this court can only determine whether the evidence on records supports the findings of the Adjudicator. In essence, the issue for resolution is whether the Appellant proved special damages to the required standard.

4. A perusal of the record shows that upon entry of interlocutory judgment, the Court adopted the Appellant’s documents set out in the list of documents dated 31. 03. 2022 which set out the several documents among them the Assessment Report dated 06. 09. 2021 prepared by Quantum Motor Assessors and Valuers giving an estimate of the repair costs as Ksh. 249,400. 00.

5. There is no evidence that the motor vehicle was repaired. This would have been proved by for example receipts evidencing purchase of the spare parts, receipt for payment of repair costs and a satisfaction or acknowledgment that the motor vehicle was repaired to the Appellant’s satisfaction. Indeed, the material part of the of the Appellant’s witness statement dated 31. 03. 2022 stated as follows:(5)I appointed Ms Quantum Motor Assessors and Valuers to undertake an assessment and costs of repairing my motor vehicle. The Assessors prepared an Assessment Report dated 6th September 2021. They charged me Ksh. 5,500/= for service which I paid. The Assessors indicated in their Report that repairs to my motor vehicle would cost approximately Ksh. 249,400/=.

6. Again, the Appellant, in his statement does not allude to any repairs being done to support the claim for repair costs. The Adjudicator could therefore not be faulted for arriving at the conclusion that the Appellant had failed to prove his claim for repairs.

7. The appellant cited rule 5 of the Small Claims Court Rules,2019 which provides:5(1)A person claiming compensation under section 12 (1) (c) of the Act in respect of a motor vehicle which has been damaged in a road traffic accident or other accident shall attach to the Statement of Claim —(a)An itemized estimate of the cost of repair prepared by a licenced mechanic or certified motor vehicle assessor; or(b)an itemised receipt issued in acknowledgement of money paid by the claimant to a licenced mechanic on account of repairs already carried out on the motor vehicle in question.

8. Even considering the aforesaid provisions, while the Appellant produced evidence in support of the Rule 5(1)(a) aforesaid, it failed to produce any evidence or receipt from a licenced mechanic showing repairs carried out as required in rule 5(1)(b). At the end of the day, if the Appellant prayed for repair costs and did not incur them, how can it be said that he suffered loss and special damage?

9. The Appeal is dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF OCTOBER 2023. D. S. MAJANJAJUDGE