[2022] KEHC 10526 (KLR)

Warui v University of Nairobi (Civil Appeal 337 of 2018) [2022] KEHC 10526 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10526 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 337 of 2018

JK Sergon, J

June 17, 2022

Between

Joseph Christopher Warui

Appellant

and

University of Nairobi

Respondent

(Being an appeal from the judgment of the Principal Magistrate’s Court at Milimani Commercial Courts, Nairobi L. W. Kabaria (MS) delivered on 7th February 2017, in CMCC No.1785 of 2014)

Judgment

1. The appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated April 2, 2014 and for judgment against the respondent in the following manner:a)That the Court do issue an order to the University of Nairobi to compensate the plaintiff his structure to the tune of Kshs.1,100,000/=b)Cost of the suit.c)Any other relief that this honourable court deems fit and just to grant in the circumstances.

2. The appellant averred in his plaint that in 1996, he applied to the authorities of the defendant to be allowed to offer services to mourners who attend to Chiromo Mortuary and was given a go ahead to build a permanent structure in 2002 in which he bought his own resources after a very long struggle, in 2003 he finally finished building the structure and opened the same.

3. The appellant pleaded in his plaint that his contract had expired and he was supposed to demolish his permanent structure, but he was unable to do so due to unavoidable circumstances arising from the respondent's administration, and that they had confirmed that they would demolish the structure, but they did not do so because the appellant was informed that the respondent was now using the structure as a power station room.

4. The appellant further pleaded in his plaint that he feels he is entitled to compensation as the structure has been put to use by the respondent and are earning profit out of it and that the appellant should be allowed to demolish the structure to make up for his loss.

5. The respondent entered appearance on being served with summons and filed its statement of defence on May 22, 2014 respectively to deny the appellant’s claim.

6. At the hearing of the suit, the appellant testified together with one more witness while the respondent relied on the testimony of one (1) witness. After the full hearing the judgment was delivered in favour of the respondent.

7. Being aggrieved by the aforementioned judgment, the appellant sought to challenge the same by way of an appeal. Through his memorandum of appeal dated July 23, 2018 the appellant put in the following grounds:a)That the learned magistrate erred in disregarding the weight of evidence of the appellant.b)That the learned magistrate erred in failing to consider the appellant’s evidence to the effect that he proved a valuation report to support his claim for damages.c)That the learned magistrate erred in law and in fact when she appreciated that the structure built by the appellant was still there and the respondent had continued to use it and failed to award damages.d)That the learned magistrate erred in failing to appreciate the exhibit produced by the appellant and the weight of evidence of the exhibits.

8. This court gave directions to the parties to file written submissions on the appeal. The appellant vide his submissions dated March 4, 2022 gave brief facts of the matter and identified two (2) issues for determination to be as follows:i.Whether the learned magistrate erred in failing to award damages as per the valuation report?ii.Whether the costs of this appeal of the lower court be awarded to be awarded to the appellant?

9. On the first issue, the appellant submittedthat he discharged his burden of proof by demonstrating that he erected the food kiosk on respondent's land, which is still standing and being utilized as a power station, and that it should have been dismantled in accordance with the licensing agreement.

10. The appellant contends that he relied upon the valuation report and went on to call the quantity surveyor (PW1) who adduced it as evidence in the lower court ,who gave an estimate value of the construction costs as at 2010 and the respondent did not challenge the estimation costs of the building materials i.e. prices. On this the appellant relied on the case of Mohammed Ali & another v Sagoo Radiators Limited[2013] eKLR where the court held that:“Consequently, we agree that, the assessors’ estimates were sufficient proof of the cost of the spares, and the failure by the respondent to produce receipts and payment vouchers, did not affect the claim for special damages……”

11. The appellant further relied on the case of Nkuena Dairy Farmers Cooperative Society & another v Ngacha Ndeiya [2010] eKLR where the Court of Appeal held that:“The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence.”

12. On the second issue, it is the appellant’s case that he should be awarded the costs of the lower court and to support this argument the appellant relied on the caseMatigari General Merchants Limited v Nelly Wairumu Muthoni & others [2021] eKLR it was held that………….in other words, the court may not only consider the conduct of the party in actual litigation, the eventual termination thereof and the likely consequences of the order for costs.”

13. In reply, the respondent submitted that this court has no jurisdiction as the appellant had litigated in the subordinate court in forma pauperis as there is no evidence of the record of appeal or rather that the appellant sought or was granted leave by the subordinate court to file this appeal.

14. The respondent cited Section 79 of the Civil Procedure Act ,Cap 21 states that thus:-“A person who has been allowed to take, defend or be a party to any legal proceedings in a subordinate court as a pauper may not appeal to the High Court, or from the High Court to the Court of Appeal, except with the leave of the Court before whom the proceedings appealed against were heard or (if such leave is refused) unless special leave has been first obtained from the Court before whom the appeal is to be heard.”

15. The respondent however without prejudice further relied on Mombasa HC Civil Appeal No. 218 of 2017, Victor Omondi Ayunga v Capital Reef Kenya Limited(unreported),the Appellate Judge that in respect of the High Court sitting on appeal:-“This Court is alive of its duty as the first Appellate Court, which duty was restated in the case of Joseph Munga’thia –v- County Council of Meru & Another, Civil Appeal No.146 of 2002 (Nyeri (unreported). At page 11 of the Judgment, the court had this to say;“In law, this matter coming as a first appeal, we have a duty to consider both matters of fact and of the law. On facts, we are duty bound on first appeal to analyse the evidence afresh, evaluate it, and arrive at our own independent conclusion, but always bearing in mind that the trial court had the advantage of seeing the witnesses and seeing their demeanor and making allowance for the same”

16. The respondent pointed out that the appellant didn’t specifically plead or strictly proof his claim of Kshs.1,100,000/= and there was no evidence of the construction or of purchase of building materials of the alleged project in 2002 and 2003 as such the alleged evidence of the quantity surveyor was estimate of construction in 2010 with no basis.

17. The respondent relied on the case Herbert Hahn v Amrik Singh, Nairobi Civil Appeal No.42 of 1983 (unreported) where the court held that:-“Special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act.”

18. The respondent further relied on the case John Richard Okuku Oloo v South Nyanza Sugar Co.Limited, Kisumu Civil AppealNo.278 of 2010 (unreported) where the Court of Appeal held that :-“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.”

19. It is the respondent’s submissions that the judgment of the trial magistrate hasn’t been impugned in any way or at all and in infact is correct in law and in fact and therefore urge that the appeal be dismissed with costs.

20. I have carefully considered the record of appeal and the parties’ respective written submissions. The main issue for determination is whether the appellant properly pleaded and proved his case against the respondent to the required standards.

21. It was not in dispute that the appellant and the respondent entered into an agreement in which the appellant was granted a permanent structure to build in 2002 and utilized his own resources after a lengthy fight, and the contract expired in 2008, but the respondent extended the contract for another two years until 2010.

22. When the appellant's contract expired and he was meant to dismantle the structure after the licensing terms expired, the appellant informed the court under cross questioning that he was unable to do so due to unavoidable circumstances.

23. According to the respondent the structure was demolished and a new one put in its place put in its place but the appellant disagrees contending that the respondent took over the structure and used it to date without reimbursing his costs.

24. The trial magistrate however dismissed the appellant’s case on the basis that he did not properly plead his claim and added that the appellant did not avail any receipts evidence of the amounts he expended in purchasing those materials or in the construction of the structure, what he placed before the court was an estimate of what it would have cost to build a similar structure in the year 2010, the quantity surveyor was clear about his evidence.

25. On the issue of whether or not the appellant’s case was properly pleaded, the trial magistrate was of the view that the case was for special damages which ought to have been specifically pleaded and proved and she thus faulted the appellant for failing to properly plead his case. I do not agree with the trial court’s findings on the issue of pleadings for special damages. I am guided by the decision of the Court of Appeal in the similar case of Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd[2013] eKLR wherein it was observed.“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.In the Jivanji case (supra), a decision of this court differently constituted, it was held that the degree of certainty and particularity depends on the nature of the acts complained of. The following passage which partly quotes Coast Bus Service Limited v Murunga & others Nairobi CA No. 192 of 1992 (ur) appears in the Jivanji case:“It is now trite law that special damages must first be pleaded and then strictly proved. There is a long line of authorities to that effect and if any were required, we would cite those of Kampala City Council v Nakaye [1972] EA 446, Ouma v Nairobi City Council [1976] KLR 297 and the latest decision of this Court on this point which appears to be Eldama Ravine Distributors Limited and another v Chebon Civil appeal number 22 of 1991 (UR). In the latest case, Cockar JA who dealt with the issue of special damages said in his judgment:“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v Nairobi City Council [1976] KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages. Chesoni J quoted in support the following passage form Bowen LJ’s judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage.“The character of the acts themselves which produce the damage, and the circumstances under which those 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.”

26. In the said Richard Okuku Oloo case (supra), the Court of Appeal further held the fact that damages cannot be assessed with certainty does not relieve the wrong doer of the necessity of paying damages for his breach of contract. The court went further to find that the trial judge had erred in dismissing the appellant’s case on the ground that the same had not been specifically proved in the face of a finding that the special damages had been sufficiently pleaded.

27. It is clear from this matter that the appellant had stated the quantity surveyor's estimate of how much it would have cost to build a similar structure in the year 2010, which the respondent did not object to throughout the trial.

28. It is also clear that despite the fact that the appellant did not show receipts to substantiate the purchase of the materials and building charges, he did bring in an expert who was able to explain to the court the cost of the materials and construction at the time the project was built.

29. In the end, the appeal is allowed, consequently the orders of the trial court are hereby set aside and in its place, I enter judgment in favour of the appellant who in turn is awarded the sum of Kshs. 1,100,000/= plus the costs of the appeal and costs of the subordinate court case.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent