[2022] KEHC 10479 (KLR)

Strizhak v Monyenye (Civil Appeal 253 of 2019) [2022] KEHC 10479 (KLR) (Civ) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10479 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 253 of 2019

CW Meoli, J

May 19, 2022

Between

Estelle F. Strizhak

Appellant

and

Janet Monyenye

Respondent

(Being an appeal from the judgment and decree of L. Gicheha, CM. Delivered on 16th April, 2019 in Nairobi Milimani CMCC No. 3546 of 2009)

Judgment

1. This appeal emanates from the judgment delivered on 16th April 2019 in Nairobi Milimani CMCC No. 3546 of 2009. The suit was commenced by a plaint filed on 9th June 2009 by Estelle F. Strizhak the plaintiff in the lower court (hereafter the Appellant) against Dr. Solomon Monyenye and Janet Monyenye the 1st and 2nd defendants in the lower court. The 1st defendant died prior to the hearing of the case, which proceeded against the Janet Monyenye (hereafter the Respondent). The claim arose from an alleged theft in which the Appellant lost valuables and money whose total value was stated to be Kshs. 1,204,325/-, while in occupation of a serviced apartment owned by the defendants in the lower court. It was averred that pursuant to a tenancy agreement, the Respondents let to the Appellant, a fully serviced apartment, identified as B1 at Sandalwood Apartments erected on the property known as LR. No. 1161/Nairobi. That pursuant to terms therein, the Respondents employed a servant to care for the Appellant’s apartment, and who was also entrusted by the Respondents with the care of the Appellant’s goods. That on or about 10th November 2008 while the Appellant was away, the servant broke into the Appellant’s safe, and stole the valuables and cash and that the defendants were vicariously liable for the unlawful acts of their employee committed in the course of employment.

2. The defendants had filed a joint statement of defence denying the key averments in the plaint and liability. Alternatively, they attributed contributory negligence to the Appellant and relied on the doctrine of volenti non fit injuria. The suit proceeded to full hearing, during which evidence was adduced by the respective parties. In its judgment, the trial court apportioned liability for the loss at 50;50 between the parties but dismissed the Appellant’s special damage claim save for the sum of Kshs. 20,000/- in respect of the value of the damaged safe and awarded costs to the Appellant.

3. Aggrieved with the outcome, the Appellant preferred this appeal challenging the finding of the lower court based on the following grounds in her memorandum of appeal: -“1. Having on the one hand rightly held that the Respondent is vicariously liable for the theft committed by her employee, the learned magistrate misdirected herself on the strict interpretation of the exemption clause 3 (iii) in the tenancy agreement, and as such erred in holding that the Respondent is exempted from liability caused by theft committed by the Respondents own employee.2. In holding that the Respondent was exempt from “all theft” caused by her employee, the learned magistrate essentially embarked on re-writing the contract between the parties going by the strict interpretation of Clause 3 (iii) of the Tenancy Agreement.3. The learned magistrate erred in law and in fact in holding that the Appellant was 50% negligent “for failing to take care of theft”. In so holding the learned magistrate with respect completely miscomprehended the general principles obtaining on causation and the doctrine of subrogation.4. To the extent that the trial magistrate fully exempts the Respondent from any liability and on the other hand holds the Respondent as contributory negligent, the entire judgment with respect is contradictory and internally conflicting.5. The learned magistrate erred in law and in fact in failing to give due weight to the overwhelming evidence that fully supports the conclusion on existence of the Appellant’s property and the fact that the Appellant’s jewelry was converted, without her permission. The learned magistrate essentially erred in failing to draw the correct inference from the proved facts.6. To the extent that the trial magistrate actually holds that there was theft committed by the Respondent’s servant, the learned magistrate erred and fell into grave error by on the other hand holding that there was no evidence of existence of the Appellant’s goods.7. Based on the evidence adduced and considering all the circumstances of the case, the learned magistrate completely misdirected herself on the legal principles relating to measure of damages for conversion of the converted jewelry and cash thereby arriving at a wrong decision.8. In failing to appreciate that the testimony of the Appellant as the owner of the personal property on the question of the market value of the converted jewelry and cash at the time of the conversion in competent and admissible, the trial court fell into error.9. Having on one hand rightly concluded that the Respondent is vicariously liable for conversion of the Appellant’s jewelry, the learned magistrate erred in law and in fact in failing to award damages for conversion. Thereby, contravening the hackneyed legal principle that for every wrong there must be a remedy.10. The learned magistrate erred in failing to appreciate sufficiently or at all that an award of interest on special damages accrues from the date of filing the suit and not from the date of judgment.11. Having not had the benefit of the demeanor of the witnesses at trial and the evidence adduced thereat, the learned magistrate erred in arriving at unjustified conclusion and erroneous inference unsupported by the testimony and the evidence adduced before the court.” (sic).

4. The Respondents on their part equally aggrieved with part of judgment filed a cross-appeal on the following grounds: -“1. The learned magistrate erred in both law and fact by finding the Respondent vicariously liable for theft by an employee yet the theft was never proved.2. The learned magistrate erred in both law and fact by finding that the Respondent’s employee carried out the theft.3. The learned magistrate erred in law and in fact in holding that the Respondent was 50% negligent for failing to vet and take proper details of the employee.4. The learned magistrate erred in law in awarding costs in favour of the Plaintiff.5. The learned magistrate erred in law and fact in finding the Defendant liable despite the express provisions of the tenancy agreement.” (sic)

5. The appeal was canvassed by way of written submissions followed by oral highlighting. Counsel for the Appellant anchored his submissions on the decisions in Selle v Associated Motor Boat Co. (1968) EA 123 concerning the duty of the court on a first appeal and the principles to be observed therein. Citing AIC Health Ministries v Solomon Ndegwa Ng’ang’a [2017] eKLR and the Court of Appeal decision in United Manufacturers Limited v Wafco Limited [1974] E.A 233, counsel argued that whether or not the Appellant insured her personal belongings was not the actual or proximate cause of the theft committed by the Respondents’ employee or the Appellant’s loss. Concerning clause 3 (iii) of the tenancy agreement, counsel took the position that as worded, the clause did not exclude liability on the part of the Respondent for acts committed by her employees, and that if that was the intention an express provision to that effect would have been included. Hence, it was submitted that the trial court erred in holding the Respondents vicariously liable for the theft on the one hand, while on the other apportioning 50% liability on the Appellant by dint of the exclusion clause.

6. Counsel attacked the trial court’s finding that there was no proof of the existence of the stolen jewelry, as one going against the weight of the Appellant’s oral evidence corroborated by the police abstract, and which evidence was uncontroverted. Counsel faulted the trial court for making inconsistent findings that a theft occurred and that the Respondent was vicariously liable while also concluding that the existence of the jewelry was not proved; that the Respondent’s admission in her testimony to the proposal made to compensate the Appellant was itself admission of the existence of the said jewelry.

7. Concerning proof of the value of the stolen goods, the Appellant reiterated evidence at the trial and asserted that the value could be established without documentary or specialist valuation so long as there was cogent and compelling evidence. Counsel asserted that the Appellant’s evidence at the trial amounted to such evidence. He relied on several authorities in support of this proposition, including, Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Company Limited [2004] 2 KLR 269, Mitchell Cotts (K) Ltd v Musa Freighters Civil Appeal No. 104 of 2006, and Jubilee Insurance Company (K) Limited v Zahir Habib Jiwan & Another Civil Appeal No 101 of 2016. He complained that the trial court erred by disregarding the Appellant’s evidence on the value of the stolen jewelry. In conclusion, it was asserted that Appellant had discharged the burden of proof on a balance of probabilities in relation to the existence and value of the stolen jewelry, and as such the appeal ought to be allowed.

8. During oral highlighting of submissions, counsel took issue with the cross -appeal which he asserted was filed out of time; that under section 79G of the Civil Procedure Act, the cross-appeal should have been filed 30 days after service of the memorandum of appeal. He submitted that the cross-appeal ought to be struck out.

9. On the part of the Respondent counsel anchored his submissions on the decision in Karuri Civil Engineering (K) Limited v Equity Bank Limited [2019] eKLR concerning the duty of an appellate court on a first appeal. Referring to the case of Henry Hidaya Ilanga v Manyema Manyoke [1961] EA 705 he argued that a higher standard of proof than a balance of probabilities was applied where a civil matter involved an allegation of theft or fraud. He took the view that the alleged theft in the instant case was not proved and cited as loose ends the fact that no evidence was led as to the whereabouts the Appellant’s servant known as Lydia who resided in the home at the material time, and allegations that she was away in hospital on the material day were not established, and moreover that the said servant was not called as a witness. Nor was any police officer called to give evidence on the status of the findings of their investigations. Thus, according to the Respondent, the circumstantial evidence relied on by the court was insufficient to support the inference that it was the Respondents’ maid servant who had opportunity and stole the alleged jewelry from the Appellant’s apartment.

10. Relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (2001) KLR counsel asserted that the tenancy agreement had an express provision that the Appellant was obligated to insure her goods and to indemnify the Respondent for any loss incurred by the tenant and that the court could not rewrite the contract between the parties. Additionally, that the clause in question could not be construed in a manner that allowed the Appellant to derive a benefit from her own breach. The English case of Alghussein Establishment v Eton College (1991) 1 All ER was cited in this regard. It was submitted that the Appellant’s failure to insure her personal items and valuables was a fundamental breach of the tenancy agreement and the trial court ought to have found that she was therefore disentitled from benefiting from such a breach.

11. Lastly, counsel contended that the Appellant having failed to specifically prove her case was not entitled to costs. He cited section 27 (1) of the Civil Procedure Act, the decision in Orix Oil (K) Limited and Paul Kabeu & 2 Others [2014] eKLR to contend that her failure to issue demand notice disentitled the Appellant to an award of costs appeal out to be dismissed and the cross-appeal allowed with costs. He therefore urged the court to disallow and dismiss the appeal and to allow the cross-appeal with costs. In his oral highlight of submissions, he addressed the Appellant’s claim that the cross-appeal was filed out of time by stating that the same was filed within 60days after the appeal and therefore on time.

12. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

13. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

14. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view the appeal turns on the question whether the Appellant proved her case on a balance of probabilities. However, before addressing the issue it is imperative to first address the Appellant’s preliminary contention that the Respondent’s cross-appeal was incompetent having been filed out of time.

15. Order 42 Rule 32 of the Civil Procedure Rules contemplates the filing of cross-appeals, and provides that:“The court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents although such respondents may not have filed any appeal or cross-appeal.”

16. Neither the Civil Procedure Act nor the Civil Procedure Rules expressly provide for cross-appeals and or the timelines within which to file the same. This court agrees with the opinion of Mwangi, J in Kenya Power & Lighting Co. Ltd v Peter Langi Mwasi [2018] eKLR in addressing the question of timelines for the filing of a cross appeal. The learned Judge sated inter alia that:“The above provisions however do not address the timelines within which a cross-appeal should be filed… If the applicant was desirous of filing a cross-appeal, he should have done so within reasonable time after he was served with the memorandum of appeal. If he fell outside the said timelines given to an appellant to file an appeal, he should have moved the court without inordinate delay to allow him to file a cross-appeal out of time.”

17. Similarly, Kiarie J in Bulsho Trading Company Ltd v Rosemary Likholo Mutakha & another [2020] eKLR while grappling with the same issue lamented the lacuna and, referring to other jurisdictions (South Africa and India) where the procedure for filing cross-appeals is expressly provided for, proposed that the Rules Committee takes up the matter and craft the procedural rules so as to breathe life to Order 42 Rule 32 of the Civil Procedure Rules.

18. Be that as it may, the memorandum of appeal in the instant matter was filed on 7th May 2019 and the memorandum of cross-appeal on 19th June, 2019. The latter could not be filed before the Respondents were served with the memorandum of appeal and there is no firm proof of the date of service. The cross-appeal came about 42 days since the lodging of the main appeal. The delay is not inordinate, and in my view the filing of the cross-appeal was done within reasonable timelines. In any event, my view is that the objection regarding the competence of the cross-appeal ought properly to have been raised at the time of directions pursuant to Order 42 Rule 13(2) of the Civil Procedure Rules. The objection to the cross-appeal cannot therefore be sustained.

19. Moving on to the substance of the appeals, in civil proceedings, the pleadings form the basis of the parties’ respective cases before a trial court. Hence a review thereof is apposite before dealing with evidentiary matters. The Appellant by her plaint averred at paragraphs 4, 5, 6, 7and 8 that:“4. By a tenancy agreement made on or about 8th day of March 2008 between the Defendants on the one part and the Plaintiff on the other part, the Defendants let to the Plaintiff Apartment B1, erected on the property known as LR No. 1161/1 Nairobi, Sandalwood Apartments (hereinafter referred to as the demised apartment) upon terms, conditions and stipulations contained in the said Tenancy Agreement.5. It was an express term of the aforesaid Tenancy Agreement that being a fully furnished and serviced Apartment, the monthly rent payable was inclusive of inter alia a service charge that caters for a maid servant to be provided by the Defendants.6. The Plaintiff contends that in fulfillment of their obligations under the aforesaid tenancy agreement the Defendants employed a servant to cater for the Plaintiff’s apartment and who was also entrusted by the Defendants to take case of the Plaintiff’s items.7. The Plaintiff avers that on or about the 10th day of November 2008 whilst in the course of her employment, the Defendants’ servant unlawfully broke into the Defendant’s safe and converted the Plaintiff’s cash and valuables to her own use thereby wrongfully depriving the Plaintiff of the same.Particulars of Lossi.Cash together with valuables worth Kshs. 1,184,325. 00ii.Cost of the destroyed safe valued at Kshs. 20,000. 008. The Plaintiff avers that the Defendants jointly and severally are vicariously liable for the unlawful acts of their employee actually committed in the course her employment since the Plaintiff’s valuables were converted by the very servant whom the Defendants had placed in a position of responsibility which enabled the Defendant’s servant to commit acts of conversion.” (sic)

20. The Respondents filed a joint statement of defence denying the key averments in the plaint and any liability by stating at paragraphs 5, 6, 7 and 12 that:“5. The Defendants deny any claims of loss of valuables as stated in paragraph 7 of the Plaint and further state that the tenancy agreement stipulated that the tenant shall insure her personal and household belongings and to indemnify the landlord against any actions, claims or demands arising from any loss, damage, theft or injury to the tenant’s family, licensees, invitees or servants and as the Plaintiff failed to adhere to express provisions of the Lease Agreement, the alleged loss in not the responsibility of the Defendants as alleged or at all.6. The Defendants deny that the Plaintiff incurred any expense or at all as alleged in the Plaint on particulars of loss and the Plaintiff is put to strict proof thereof.7. The Plaintiff is guilty of negligence for failure to secure or take any indemnity insurance cover for the allegedly lost valuables and the loss cannot be pinned on the Defendants.Particulars of Negligencea.Failing to declare to the Defendants the presence of the alleged valuable items/goods on the Defendants premise.b.Failing to insure or take any suitable insurance cover as may be required of such valuable items/goods.c.Failing to secure, lock and or keep away the alleged valuable item/goods in a reasonably secure and strong safe or at all in the Defendant’s premises.d.Failing to take any or any sufficient precautions to ensure safety of the alleged valuable items/goods in the Defendants premises.e.The Plaintiff failed in her duty to the Defendants to declare the value of the alleged valuable items/goods as set out in the Plaint.f.The Plaintiff failed to take any or any adequate measure to secure the alleged valuable items/goods.g.Leaving the alleged valuables easily and inadequately unattended in the Defendants premises knowing that such valuables constituted an allurement or attraction to anyone having legitimate access to the premises.12. The Defendants shall rely on the defence of volenti non fit injuria in that the Plaintiff, by not declaring or insuring the alleged valuables voluntarily consented to such risks and waived any claim in respect of any injury or damages or loss occasioned by the Plaintiff’s conduct” (sic)

21. The basic facts of the matter were not disputed. These include the fact that the Appellant was the Respondent’s tenant in the demised premises pursuant to a tenancy agreement, and that under the tenancy agreement the Respondent provided a housekeeping maid servant for the said apartment. That the Respondents were called to the said premises by the Appellant early on the night of 10th November 2008 and informed that her safe in the apartment had been broken into and valuables stolen therefrom; that the Respondent and her late husband had proceeded to the house and later accompanied the Appellant to Kilimani Police Station where a report was made. There is undisputed evidence that the Respondent and her husband initially offered to pay some Shs. 60,000/- as compensation but the Appellant claimed the value of lost goods was about Shs.1000,000/- The key disputed issues in the lower court revolved around the question whether a theft indeed occurred, the identity of the culprit and therefore vicarious liability of the Respondent and/or whether the Respondent was exempt from liability under the tenancy agreement, the items stolen and their value.

22. In its judgment the trial court noted the foregoing by stating as follows:…...“The issues before me are;-1. Whether there was valid tenancy agreement between the plaintiff and defendant.2. Whether the defendant is vicariously liable for the theft of the plaintiff’s items.3. Whether the tenancy agreement exempts the defendant from liability.4. Whether the plaintiff suffered loss of Kshs. 1,204,325/-…In this case the said Jane had been employed to perform domestic chores in the Defendant apartment. It was in the course of this duties that she stole from the Plaintiff. She might have acted contrary to the instructions given but she did so. In the course of duty and while performing the duties that had been given to her. Therefore, I find the Defendant is vicariously liable for the acts of the said Jane…In the said tenancy the tenant was to insure her personal and household belongings and indemnify the land lord against any action, claim or demand arising from the loss damages, theft and injury.According to the said clause the Plaintiff was insure her household goods against theft or injury…I find that the said clause is not ambiguous but it clearly states that all thefts were covered. The Plaintiff is also negligent for failing to take a cover for the said jewelry. She will bear 50% while the defendant will bear 50% for failing to vet and take proper details of the said Jane………The plaintiff has not proven the jewelry existed and secondly if it existed, that which she is claiming true value of the said items. I therefore find that the plaintiff has not proven the existence of the said jewelry as well as their value on a balance of probabilities as the plaintiff claim of Kshs. 1,184,325. 00 is dismissed….I however find that the plaintiff has proven that her safe was damaged and proven she had bought it for 20,000/=. I enter judgment for the plaintiff against the defendant before liability for the sum of Kshs 20,000/= costs and interest.” (sic)

23. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The duty of proving averments contained in the plaint lay squarely on the Appellant. InKarugi & Anotherv. Kabiya & 3 Others(1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant… The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

24. The Appellant’s claim for loss of cash, valuables, and value of the destroyed safe is a special damage claim founded on the tort of conversion. In Winfield and Jolowicz on Tort 15th Edn. Pg 588, it is stated that conversion occurs through acts of:“Wrongfully taking possession of goods, by wrongfully disposing them, by wrongfully destroying them or simply refusing to give them up when demanded.”

25. Halsbury's Laws of England, 4th Edition Pg 355 Para 548, the authors explain the various forms of conversion, or theft for that matter, namely:-“To constitute the first form of conversion there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owner's rights and an intention in doing so to deny the owner's rights or to assert a right inconsistent with them. This inconsistency is the gist of the action. There need not be any knowledge on the part of the person sued that the goods belong to someone else; nor need there be any positive intention to challenge the true owner's rights. Liability in conversion is strict and fraud or other dishonesty is not a necessary ingredient in the action….”

26. Concerning the theft of the Appellant’s items, the trial court correctly noted in its judgment that the evidence was circumstantial. The fact that the Appellant’s safe was forced open and damaged was not denied by the Respondent and it is believable that the Appellant had some items stored therein. However, the trial court held that although the theft had been proved, the Appellant had not established the existence of the items she claimed to have been taken from the safe. The Appellant complains that these findings are contradictory. I do not agree: the fact that a theft has occurred means that some goods may have been wrongfully taken away in a manner inconsistent with the owner’s rights thereto, but such owner is duty bound in a claim such as the present one, to prove the specific goods that have been stolen, or converted. I will return to this question later but suffice to say at this stage that on the evidence adduced by the Appellant, the trial court’s conclusion that indeed a theft had occurred, and some goods taken away from the safe was well founded.

27. Flowing from the above, the next question is the identity of the person who committed these acts of conversion and whether the Respondent was liable for their actions. The trial court found, based on circumstantial evidence that the Respondent’s maid by the name Jane, who had been left at the apartment by the Appellant on the material day and who was not in the premises on the Appellant’s return was the most probable culprit. This finding has been attacked by the Respondent who points out that indeed the apartment had another servant by the name Lydia, an employee of the Appellant who admittedly resided in the premises. Although by her pleadings and evidence-in -chief the Appellant had excluded reference to the said resident servant, she admitted during cross-examination that while Jane was the day maid working from 8am to 5pm, Lydia, her own servant resided at the premises. In re-examination she asserted that the said Lydia had gone off to hospital, presumably before the Appellant left the apartment on the material day. However, no evidence concerning Lydia’s hospital visit was produced.

28. Evidently, the Appellant returned to the apartment over two hours after 5pm when Jane would be expected to have clocked out from duty. It was not indicated by the Appellant whether Lydia was present at the time of the Appellant’s return to the apartment. More significantly, the Appellant did not call Lydia as a witness, and no explanation was given for the omission. Is it possible that she, like Jane similarly vanished on the material day? The Appellant did not call any workers on the premises such as the security personnel at the main entrance to give evidence concerning the movements of Lydia and Jane into and out of the premises on the material day.

29. Evidence that Jane disappeared and could not be traced on the material evening by the Respondent and her husband may indeed cast suspicion upon her as a possible culprit, but not exclusively, because Lydia too had access to the apartment as the resident servant. Moreover, the exact time when the safe was burglarized is unknown. Thus, the disappearance of Jane, without more, in the circumstances of the case, and in the absence of the testimony of Lydia and the security personnel manning the main entrance, could not necessarily lead to the conclusion that the theft occurred while Jane was at the apartment and that only she had the opportunity to burgle the Appellant’s safe and to steal valuables therefrom.

30. It seems that the police investigations went cold, and no arrests were made in connection with the Appellant’s complaint. The Appellant did not find it necessary to call a police officer from Kilimani police station to testify on the progress of the investigations and particularly on the whereabouts of the suspect named in the complaint. As matters stand therefore, the theft may have been committed by Jane or Lydia or both in collusion, if not by a third party. In the circumstances, this court finds that the evidence on record was inconclusive on the identity of the culprit and the finding of the trial court to the contrary was not well founded. This issue should be sufficient to dispose the appeal, but even if the conclusion is wrong, the court found that the Appellant’s case was weak in other respects. But first, a consideration of the issue of the respondent’s liability had theft by Jane been established.

31. Regarding the vicarious liability of the Respondent for the acts of Jane, there was no dispute that the said person was the Respondent’s employee. The Court of Appeal recently explained the ratio and application of its predecessor’s decision in Selle –Vs- Associated Motor Boat Co. [1968] EA 123 Selle in Board of Governors St Mary’s Schoolv. Boli Festus Andrew Sio [2020] eKLR by stating inter alia that:“Vicarious liability is defined in Black’s Law Dictionary 10th Edition by Bryan A. Garner as “liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties -also termed as imputed liability”.

32. The Court of Appeal then restated the facts pertaining to Selle’s case which had been relied on in the judgment appealed from. The Court restated the holding in Selle’s case to be that where a party delegates a task or duty to another, not a servant, to do something for his benefit or for the benefit of himself and the other, whether that other person be called an agent or independent contractor, the employer is liable for the negligent actions of that other, in the performance of the task, duty or act. The court restated the obiter dictum in the Selle case by De Lestang, VP that:“A person employing another is not liable for that other’s collateral negligence unless the relationship of master and servant existed between them at the material time; the existence of the right of control is usually a decisive factor in deciding whether the relationship of master and servant exists”.

33. The Court of Appeal then concluded that:“What Selle & Another (supra) is saying is that a principal will be responsible for the acts of a servant where the servant is carrying out a task on behalf of the principal. This is not the same when the task involves employment of an independent contractor.This issue is well captured in Charlesworth on Negligence 4th Edition, Sweet and Maxwell.On the subject “Independent Contractors” the learned author declares that an employer is not liable for the negligence of an independent contractor or his servant in the execution of his contract. “

34. No doubt, Jane was an employee of the Respondent and a master and servant relationship existed between them. The Respondent had control over her, and her presence in the apartment benefitted the Respondent in two keyways; she was responsible for taking care of the Respondent’s furnishings in the serviced apartment and the Respondent earned a rent inclusive of a service charge for the maid service, among others. Thus, had the Appellant succeeded in proving that Jane was responsible for the theft, the Respondent could not have escaped liability, notwithstanding the exemption in clause 3(iii) of the tenancy agreement.

35. In principle, exemption clauses are construed strictly, depending on the extent to which they purport “departure from the implied obligations ordinarily accepted by parties entering into a contract of a particular type”. See Chitty on Contracts Twenty-Eight Edition Vol. 1, para 14-005 at page 663. The said clause in my reading does not expressly exempt the Respondent from liability arising from acts committed by the Respondent’s own employee at the apartment. Nor can it be construed to so imply given nature of the tenancy agreement between the parties. See also Algussein Establishment v Eton College (1991) 1 ALL ER 27 and United Manufacturers LimitedvWafco Limited (1974) E.A 233. Further, in my considered view, the fact that the Appellant’s goods were not insured as provided in the tenancy agreement could neither absolve the Respondent from bearing the primary liability for any losses proved to have been incurred due to acts committed by her employee, nor justify the trial court’s apportionment of liability between the parties.

36. Finally, on the issue of the items stolen from the apartment and their value, this matter was contested in pleadings and at the trial. The Appellant was duty bound to adduce evidence in proof that monies and jewelry in the values pleaded were indeed lost during the incident in question. The Appellant’s alleged loss being in the nature of a special damage claim required strict proof. Special damages must not only be specifically pleaded but also strictly proved. The Court of Appeal in David Bagine vs. Martin Bundi [1997] eKLR stated: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:“... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus;“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.”

37. Further Chesoni, J (as he then was) in the case ofOuma v Nairobi City Council (1976) KLR 304:-“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” (Emphasis added)See also Hahn -v- Singh [1985] KLR 716.

38. Apart from her own oral evidence and inventory prepared after the theft (P.Exh. 3), the Appellant did not tender any evidence upon which the trial court could have made a positive finding as to the existence, loss, and value of the listed items. The Appellant was irked by the trial court’s finding that there was no proof of the existence of the goods, despite having concluded there was a theft. In my considered view, in so concluding the trial court was addressing its mind to the question of the specific items stolen, having found that there was a theft incident at the apartment. Logically, the three elements, namely, the fact of the pre-existence of the alleged lost goods, their subsequent loss through theft and value are intertwined; only what existed before the theft could be stolen and its value proved.

39. In Nizar Virani’s case relied upon by the Appellant, the plaintiff’s evidence on the first two elements and the value of lost goods was not challenged at the trial. While it is true that documentary evidence of the existence of goods and their value is not necessarily the only means of proof, what the Appellant presented before the trial court by way of proof fell way short of establishing, not only the pre- existence of her alleged lost goods but also their value.

40. The goods allegedly taken from the Appellant’s safe were said to be worth Ksh. 1,184,325/- and included valuables described in PExh.3 as money (Kshs. 10,000/- and USD 1,000) and jewelry worth Shs. 664,290/- the latter which the Appellant said comprised of jewelry bought in India, received as gifts, or inherited. In that regard, not a single piece of evidence was tendered to corroborate the Appellant’s oral evidence or P.Exh. 3 which the Respondent seriously challenged in cross examination. The trial court was entitled in my view to distinguish the facts of the instant case from the case of Jubilee Insurance Company of Kenya Ltd v Zahir Habib Jiwan & Ano. where the plaintiff adduced cogent and compelling evidence including descriptions of on each lost piece of jewelry which the trial Judge thought to demonstrate “intimate knowledge” thereof, a warranty for some of the jewelry, some photographs and valuation reports from expert jewellers and websites, in addition to the remnant valuables from the burglarized safe.

41. The inventory produced as PEhx. 3 in this case was of little probative value as it merely contained a series of descriptions/drawings and values of the jewelry and was prepared after the theft. The trial court correctly observed that the Appellant had not tendered an inventory prepared prior to the theft and the court was therefore hard pressed to conclude that the alleged valuables truly existed and were among goods stolen on the material day. Considering the alleged value of the jewelry, and the fact that the Appellant took the trouble of locking it up it in a safe, it is surprising that not a single piece of evidence could be produced to ascertain the existence of these valuables. Equally surprising was the vivid and intricate descriptions, complete with drawings of 32 pieces of jewelry in the inventory P. Exh.3, all apparently drawn from the Appellant’s memory, without reference to any kind of aide -memoire.

42. On the values attached to the goods, the Appellant asserted during cross-examination that she obtained these from undisclosed makers of the jewelry outside Kenya and “authorities in Nairobi” who were no longer available. As observed by the trial court, no correspondence or expert valuations from the alleged authorities or jewelers was tendered as in the case of Jubilee Insurance Company of Kenya Ltd.

43. Having reviewed the entire evidence on this point, this court agrees with the findings of the trial court that although a theft may have occurred at the apartment, the evidence of the Plaintiff did not prove what specific items were stolen from the burgled safe, or their value. The admission by the Respondent of her husband’s willingness expressed immediately after the theft to compensate the Appellant in the sum of Shs. 60,000/- did not amount to an admission of the values pleaded, and the Respondent explained in her evidence that theirs was an offer made in good faith to settle the matter, but which failed upon the realization that the Appellant was claiming over Shs. 1000,000/- for her lost valuables.

44. In Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal adverting to the provisions of sections 107, 108 and 109 of the Evidence Act, held that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

45. The summary findings by this court are that the Appellant failed to prove key facts in support of her case, namely that, the Respondent’s worker Jane was involved in the theft, the specific items lost in the theft and their value. Consequently, so far as the challenge on liability and quantum is concerned, the appeal must fail and is accordingly dismissed. On the other hand, the cross-appeal has substantially succeeded on the issue of liability and is allowed. In the result, the court hereby sets aside the judgment of the lower court and substitutes therefor an order dismissing the Appellant’s suit in the lower court. Each party will however bear their own costs in the lower court and on this appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 19TH DAY OF MAY 2022 .C.MEOLIJUDGEIn the presence of:For the Appellant: Mr. Odera h/b for Ms. MigiroFor the Respondent: N/AC/A: Carol