[2023] KEHC 23202 (KLR)

Teachers Service Commission v Ashford Tours & Travel Limited (Civil Appeal E313 of 2020) [2023] KEHC 23202 (KLR) (Civ) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23202 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E313 of 2020

CW Meoli, J

October 5, 2023

Between

Teachers Service Commission

Appellant

and

Ashford Tours & Travel Limited

Respondent

(Being an appeal from the judgment of Gicheha, C.M. delivered on 15th September, 2020 in Nairobi CMCC No. 10402 of 2018)

Judgment

1. This appeal emanates from the judgment delivered on September 15, 2020 in Nairobi CMCC No. 10402 of 2018. The suit in the lower court (originally Nairobi CMCC No. 850 of 2010) was commenced by way of the plaint dated December 8, 2010 by Ashford Tours & Travel Limited the plaintiff in the lower court (hereafter the Respondent) against Teachers Service Commission, the defendant in the lower court (hereafter the Appellant).

2. The Respondent sought several reliefs, namely, a declaration that the Appellant’s detainment of the motor vehicle registration number KAR 246L (the subject motor vehicle) was illegal; an injunctive order against the Appellant in respect to the subject motor vehicle; an order for release of the subject motor vehicle to the Respondent; damages for loss of user of the subject motor vehicle at the monthly sum of Kshs. 150,000/- with effect from November, 2007; costs of the suit and interest thereon.

3. He averred that the subject motor vehicle was at all material times previously owned by the Appellant. That pursuant to a judgment and decree obtained in Nakuru CMCC No. 1786 of 2003 (the primary suit) between Sackey Kimani and the Appellant, the subject motor vehicle was sold to the Respondent by way of a public auction which conducted on December 9, 2006 at Pangani Auction Centre in Nairobi, for a sum of Kshs. 500,000/-.

4. The Respondent further pleaded that following the sale, the Respondent took possession of the subject motor vehicle as well as the requisite documents relating to the said vehicle and that sometime on or about December 14, 2006 the Respondent’s representative lodged an application with the Registrar for Motor Vehicles for registration of the subject motor vehicle in its name, following which the Respondent was issued with a logbook on or about December 15, 2006.

5. It was averred that subsequently on or about the November 15, 2007 representatives of the Appellant entered the Respondent’s premises situated at Twiga Towers and proceeded to tow away the subject motor vehicle whilst claiming to have obtained a court order in that regard. It was also averred that between the period of registration of the subject motor vehicle in the Respondent’s name and its unlawful repossession by the Appellant, the Respondent had been utilizing it for commercial purposes out of which it received a monthly sum of Kshs. 150,000/- hence the Respondent suffered loss of user by the detainment complained of.

6. The Appellant entered appearance and filed the statement of defence dated February 24, 2011 denying the key averments in the plaint and liability. In addition, the Appellant averred that the purported sale of the subject motor vehicle was irregular and illegal, and hence no good title passed to the Respondent.

7. The suit proceeded to full hearing with the Appellant and the Respondent each summoning one (1) witness. In the judgment delivered on September 15, 2020 the trial court found in favour of the Respondent and granted the declaratory order sought, as well as the order for release of the subject motor vehicle to the Respondent; and further awarded the Respondent a sum of Kshs. 1,080,000/- plus costs and interest thereon.

8. Aggrieved with the outcome, the Appellant preferred this appeal vide the memorandum of appeal dated November 18, 2020 which is based on the following grounds:1. The trial magistrate erred in law in failing to consider the Appellant’s evidence presented through documents which raised substantial issues of law.2. The trial magistrate erred in law and fact by making an award for loss of user of Kshs.30,000 per month for a period of three (3) years thereby failed to appreciate the principles applicable in an award of damages for loss of user.3. The trial magistrate erred in law and fact in failing to take cognizance of the submissions and case law put to her by the appellant.4. The trial magistrate erred in law and fact in finding that the Respondent was a bona fide purchaser for value of the suit motor vehicle KAR 246L. 5. The trial magistrate erred in finding that the Respondent had acquired a legal title to motor vehicle KAR 246L.” (sic)

9. The appeal was canvassed by way of written submissions. Counsel for the Appellant anchored his submissions on the decision in SAD v EOO [2021] eKLR in arguing that the trial court did not take into consideration the orders previously issued in the primary suit, which orders stayed the sale of the subject motor vehicle and subsequently directed that the said vehicle be released to the Appellant, upon payment of the Auctioneer’s fees.

10. Counsel further submitted that in view of the foregoing, the auctioneer had no legal authority to attach, auction and sell the subject motor vehicle to the Respondent. It was counsel’s contention that contrary to the provisions of Rule 12(1) (b) of the Auctioneers Rules, the auctioneer did not take out a Proclamation Notice prior to advertising and selling the subject motor vehicle to the Respondent and hence no good title could have passed to the Respondent. Reference was made to the decision in Maina Wanjigi & another v Bank of Africa Kenya Ltd & 2 others [2015] eKLR where the court held that a good title could only pass in the event of a lawful process.

11. On quantum, the Appellant’s counsel faulted the trial court for awarding damages for loss of user in the absence of any supportive evidence asserting that the Respondent did not tender documentation to income alleged from the use of the subject motor vehicle. Here citing from the decisions in Jackline Njeri Kariuki v Moses Njung’e Njau [2021] eKLR; Ryce Motors Limited & Another v Elias Muroki [1996] eKLR; and Jamal Mohamed Bandira v Owners of the Motor Vessel “Nasibu” [2020] eKLR among others. For the above reasons, the court was urged to allow the appeal accordingly.

12. The Respondent naturally defended the trial court’s judgment. Counsel for the Respondent anchored his submissions on the decisions in Captain Patrick Kanyagia & another v Damaris Wangechi & 2 others [1995] eKLR and Priscilla Krobought Grant v Kenya Commercial Finance company Ltd and others Civil Appeal No.227 of 1995 (unreported), to submit that the Respondent acquired a good title to the subject motor vehicle. Counsel further submitted that the trial court properly awarded damages for loss of user. In the premises, the court was urged to dismiss the appeal with costs, and to uphold the decision of the trial court.

13. 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 v 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 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.”

14. 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 v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

15. The appeal, by the five grounds of appeal essentially challenges the decision by the trial court to find in favour of the Respondent against the Appellant, in respect to the subject motor vehicle. The court will deal with the five (5) grounds of appeal under the following limbs.

16. Concerning the first limb of the appeal regarding whether the trial court was correct in finding that the Respondent was a bona fide purchaser, the legal position is that the burden of proof in civil cases rests with the plaintiff at all material times, while the standard of proof is on a balance of probabilities. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard 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).

17. Having earlier summed up the contents of the pleadings of the parties, the trial court after restating and analyzing the evidence concluded as follows in respect to the Respondent’s suit:“In this case the Defendant had not demonstrated that the plaintiff had any notice of the irregular exercise of the said sale. He was not aware that there was an order for release of the motor vehicle to the defendant.The Plaintiff ownership of the motor vehicle was created at the fall of the hammer and the Defendants rights to the motor vehicle extinguished.I therefore find that the plaintiff having been an innocent purchaser clean title was passed to him and the sale by public auction. The vehicle was further registered in his name…” (sic)

18. The applicable law as to the burden of proof is set out under Sections 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the legal evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

19. The latter statement alludes to the position that the legal burden of proof, unlike the evidentiary burden of proof, does not shift. In reiterating the standard of proof, the Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR held that:“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

20. From the foregoing authorities, it is clear that the duty of proving the averments contained in the plaint lay squarely with the Respondent. In Karugi & Another v 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)

21. During the trial, David Kamau who was PW1 adopted his written witness statement as part of his evidence-in-chief. He then proceeded to testify that he was at all material times the Managing Director of the Respondent and that he is the one who purchased the subject motor vehicle in the public auction held on December 9, 2006. The witness produced the Respondent’s bundle of documents dated January 13, 2014; September 24, 2019; and October 9, 2018 as P.Exhibits 1, 3 and 4 respectively. The witness further stated that following the purchase, he effected transfer of the subject motor vehicle in the name of the Respondent. That at the time the subject motor vehicle was repossessed by the Appellant, it was in pristine condition. That he incurred losses due to the repossession as he had to seek alternative means of transport to carry on with the business and hence the claim for damages for loss of user.

22. In cross-examination, PW1 testified inter alia, that he had not taken part in any other auction proceedings previously, and that he was served with a Proclamation Notice and warrants of sale by the auctioneer. That he only came to court following the action by the Appellant to repossess the subject motor vehicle. During re-examination, the witness stated that he was not a party to the primary suit and that, prior to the auction, the auctioneer had not received payment of his fees in order to facilitate the release of the subject motor vehicle to the Appellant pursuant to the order earlier issued by the trial court. This marked the close of the Respondent’s case as the Plaintiff.

23. For the defence, Hannington Ouma testifying DW1 identified himself as a Fleet Manager of the Appellant and proceeded to adopt his witness statement as his evidence-in-chief. The witness testified that the Appellant had purchased the subject motor vehicle in the year 2004 and that an order had been issued in the primary suit on March 27, 2006, barring its sale, followed by a subsequent order on October 16, 2007 for the release of the vehicle to the Appellant. The witness further testified that the Appellant was not informed of the sale of the subject motor vehicle to the Respondent through the auction. He therefore termed the sale as illegal.

24. In cross-examination, the witness said that pursuant to the order of March 27, 2006 the subject motor vehicle was to be released to the Appellant by the auctioneer upon payment of the requisite auctioneer fees. That he had no knowledge as to whether the said fees were in fact paid. The witness restated his earlier testimony that the Appellant was not informed of the sale thereof and hence the decision to repossess it. In re-examination, the witness testified that the subject of the auctioneer fees was to be determined by the trial court and was based on distinct issues. The defence case was closed at this point.

25. No doubt, the dispute herein originated from the primary suit wherein the Appellant was sued by a separate party. It is apparent from the record that the primary suit was eventually settled between the relevant parties. It is similarly not in dispute that the subject motor vehicle was sold by way of a public auction held on December 9, 2006 and that the same was purchased by PW1 on behalf of the Respondent, and subsequently registered in the name of the Respondent. It is also not disputed that thereafter, the Appellant through its representatives, repossessed the said vehicle, giving cause to the suit between the parties herein.

26. The court observed while reviewing the record herein that while the Appellant filed various documents, these were not produced as exhibits. The court can therefore only consider the exhibits on record. Going by the documentation tendered in P. Exhibits 1, 3 and 4 coupled with the respective testimonies, it is apparent that the subject motor vehicle was in the possession of the auctioneer at all material times subsequent to attachment and before the auction. DW1 confirmed that the order issued for release of the subject motor vehicle prior to the sale by public auction, was conditional upon payment of the auctioneer fees. The witness could not confirm whether the fees were settled. The witness, however, was adamant that the advertisement and sale of the subject motor vehicle was illegal.

27. The procedure for attachment of movable goods is set out inter alia under Rules 11 and 12 of the Auctioneer Rules (the Rules) as follows:“Rule 11:(1)A court warrant or letter of instruction shall include, in the case of—(a)movable property—(i)the decretal amount, date of decree, date of return to court or where there is no decree, the exact amount to be recovered as at a date not later than the date of the letter of instruction plus the estimated daily or monthly interest or rent to accrue thereafter;(ii)the person amongst whom the decree is to be executed;(iii)the exact location of goods;(iv)the person to point out the goods;(v)where ascertainable, a list of the goods to be attached or repossessed;(vi)where appropriate, reserve prices or where there are to be no reserves prices, a record of the reasons for not selling subject to such reserve prices;…Rule 12:Movable other than perishable goods and livestock(1)Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock—(a)record the court warrant or letter of instruction in the register;(b)prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect;(c)in writing, give to the owner of the goods seven days’ notice in Sale Form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction;(d)on expiry of the period of notice without payment and if the goods are not to be sold in situ, remove the goods to safe premises for auction;(e)ensure safe storage of the goods pending their auction;(f)arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter;(g)not remove any goods under the proclamation until the expiry of the grace period.

28. Furthermore, the Rules make provision for advertisement and sale by public auction in the manner hereunder:“Rule 16:(1)An advertisement by an auctioneer shall, in addition to any other matter required by the court, contain—(a)the date, time and place of the proposed sale;(b)the conditions of sale or where they may be obtained;(c)the time for viewing the property to be sold;(d)in respect of movable property other than perishable goods and livestock, an accurate description of the goods to be sold and a statement as to whether or not they are to be sold subject to a reserve price;(e)in respect of goods of a perishable nature or livestock an accurate description of the goods to be sold and of their condition and a statement as to whether or not they are to be sold subject to a reserve price;(f)in case of immovable property all the information required to be contained in the court warrant or letter of instruction except the amount to be recovered and the exact amount of any reserve price.(2)Except as may be ordered by a court, advertisement by an auctioneer of a sale by auction of any property, movable or immovable, shall be by way of an advertisement in a newspaper, provided that in the case of perishable goods and livestock advertisement in a newspaper may be dispensed with if adequate notice to prospective bidders in all the circumstances can be achieved by radio or television announcement, or handbills or posters, or other means of communication.Rule 17:Auction(1)Subject to Order 21, rules 62, 63, 65, 66, 68 and 69 of the Civil Procedure Rules (Cap. 21, Sub. Leg.) a public auction shall take place—(a)of goods seized or repossessed under any contract or any written law between the hours of 10. 00 a.m. and 6. 00 p.m.; or(b)in other sales between the hours of 10. 00. a.m. and 10. 00 p.m., and in either event—(c)in a venue open to and accessible to the public, provided that it shall be lawful for an auctioneer to charge prospective bidders a reasonable sum for a sale catalogue or other list of lots for sale as a condition precedent to entry to the auction premises.(2)The auctioneer shall make reasonable arrangements for the identification of the items for sale by list or catalogue and by the allocation of lot numbers which shall so far as possible be indicated on the goods at the time of sale.(3)The auctioneer shall call out each lot for auction identifying the lot number and showing to bidders the lot for sale or in the case of immovable property identifying the lot for sale by reference to a map or sketch and shall invite bids on it.(4)The highest bidder shall be the purchaser subject to compliance with the conditions of sale.(5)The auctioneer shall, after selling the movable property, attaching goods or goods lawfully held under this custody, and for purposes of effecting transfer in favour of the purchase, file an application to the court which issued the decree or to any other competent court which is applicable.(6)An application under this rule shall be by motion by way of miscellaneous application, supported by an affidavit and may be heard ex parte.

29. From its study of the record, the court noted that PW1 tendered among others, warrants of sale dated November 29, 2006; a proclamation notice of attachment dated February 1, 2005; and the newspaper advertisement pertaining to the intended sale by way of a public auction, dated December 9, 2006. No firm evidence was tendered to show that at the time of the advertisement and sale of the subject motor vehicle, there were subsisting stay orders barring such sale/disposal. And whilst it was orally asserted that an order was issued on March 27, 2006 for the release of the subject motor vehicle to the Appellant upon payment of the auctioneer fees, no evidence was adduced to indicate that the fees had been paid by the date of the auction, or at all, to warrant release of the vehicle.

30. Be that as it may, the pertinent question for consideration on this appeal is whether the Respondent was a bona fide purchaser for value who received a clean title to the subject motor vehicle. The Respondent’s witness maintained that the Respondent was an innocent purchaser for value, of the subject motor vehicle in a public auction and that he was oblivious to any claims on the said vehicle by the Appellant or any other party for that matter. The witness tendered, among others, receipts confirming the sale, a certificate of sale and a logbook in the name of the Respondent, none of which were challenged at the trial through contrary evidence.

31. The Court of Appeal in Weston Gitonga & 10 others v Peter Rugu Gikanga & Another [2017] eKLR adopted the following definition of the term bona fide purchaser from the Black's Law Dictionary 8th Edition:“One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”

32. Furthermore, the Court of Appeal in Marteve Guest House Limited v Njenga & 3 others (Civil Appeal 400 of 2018) [2022] KECA 539 (KLR) (28 April 2022 (Karanja, JA dissenting) held that:“Elements/ingredients for qualification of a party as a bona fide purchaser, and which I fully adopt are those distilled in the case of Lawrence P Mukiri v Attorney General & 4 others [2013] eKLR, namely, proof that the claimant:a.He holds a certificate of Title;b.He purchased the Property in good faith;c.He had no knowledge of the fraud;d.The vendors had apparent valid title;e.He purchased without notice of any fraud;f.He was not party to any fraud.”

33. Upon re-examination of the record, the court is satisfied that the Respondent reasonably demonstrated the process by which it came to purchase and own the subject motor vehicle. The vehicle was purchased in a public auction at a valuable consideration and there is nothing to indicate that the Respondent not being a party to the primary suit had prior knowledge of the dispute pertaining to the said vehicle between the parties in the primary suit. The court is thus satisfied that the trial court correctly analyzed the evidence before it and arrived at a correct finding on the main issue.

34. Having found so, the court will now address the second limb of the appeal regarding whether the trial court considered the applicable principles in awarding the Respondent damages for loss of user. The Court of Appeal in David Bagine v Martin Bundi-Civil Appeal no. 283 of 1996, stated that damages which are claimed under the title “loss of user” are special damages which must be specifically pleaded and strictly proved. The Court stating as follows:“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can”. These damages as pointed out earlier by us must be strictly proved.”

35. Moreover, the Court of Appeal reaffirmed this position in the case of Ryce Motors Limited & Another v Elias Muroki (1996) eKLR when it held that:“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 pieces of paper do not show at all if the alleged accounts were in respect of ‘the matatu’, or the two matatus owned by the plaintiff, or included the business of the plaintiff as a shop-keeper. The said pieces of paper in our view, do not go to prove special damages. There are umpteen authorities of this court to say that special damages must not only be specifically pleaded but must be strictly proved. Such authorities are now legion. The plaintiff simply gave evidence to the effect that his matatu was bringing him income of Shs. 4500/= per day. He did not support such claim by any acceptable evidence. There was absolutely no basis on which the learned judge could have awarded the sum of Kshs. 2,830,500/= for special damages and we set aside the award in its entirety.”

36. As earlier stated, the Respondent sought the sum of Kshs. 150,000/-per month from November, 2007 for loss of user while the Appellant urged the trial court to decline to grant any damages under that head, in the absence of proof. In the end, the trial court tabulated a monthly sum of Kshs. 30,000/- for a period of three (3) years, totaling a sum of Kshs. 1,080,000/-.

37. The court has re-examined the rival positions by the parties in this respect and further re-examined the pleadings and evidence. The court noted that although the Respondent’s witness tendered various documentation in P. Exhibit 4 in relation to the claim for loss of user, the said documents merely consisted of invoices and audited accounts for other distinct vehicles allegedly hired following repossession of the subject motor vehicle, yet no proof was tendered to support the assertions that the subject vehicle was ever utilized for commercial purposes or to indicate the income received therefrom from the time of purchase until its repossession by the Appellant.

38. In view of all the foregoing factors, the court finds that the trial court had no basis for awarding any damages under that head, in the absence of strict proof. Resultantly, the court is inclined to interfere with that award by setting it aside in its entirety.

39. Finally, regarding the Appellant’s complaint that the trial court ignored the Appellant’s evidence, submissions, and authorities, the court upon reviewing the impugned decision as juxtaposed against the material presented at the trial did not find justification for the complaint.

40. In the end therefore, the appeal has partially succeeded. Consequently, the award made under the head of loss of user is hereby set aside and is substituted with an order declining the same. The remainder of the trial court’s judgment is hereby upheld. In the circumstances, the parties will bear their own costs in the appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5THDAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the Appellant: Ms. ManyasaFor the Respondent: Mr. MachariaC/A: Carol