Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] KEHC 5907 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO. 361 OF 2010

LINUS FREDRICK MSAKY ………………….............…………..APPELLANT

VERSUS

 LAZARO THURAM RICHORO ……………….................…1^ST RESPONDENT

HIGHLANDS MINERAL WATER COMPANY LIMITED …2^ND RESPONDENT

JUDGMENT

This appeal arises from the judgment  and decree of  J. Ragot ( Mrs)  Principal Magistrate delivered on 31^st August 2010 in Milimani  CM CC No.  10435 of 2004.  The appellant herein Linus Fredrick Msaky was the plaintiff   whereas Lazaro Thuram Richoro and Highlands Mineral Water Company Limited who are the respondents were the defendants.

By a plaint dated 21^st September 2004 the appellant herein claimed for special damages in the sum of kshs 133,666.00 from the respondents jointly and severally being repair costs, assessment fees, police abstract fee and loss of user.  the appellant had claimed that he was the  registered owner of  motor vehicle  registration  number KAJ 765U  whereas   the 2^nd respondent  owned motor vehicle registration  number KQP 843, while the 1^st respondent  was the  2^nd respondent’s authorized driver, agent, servant or employee.

That on or about the 2nd day of July 2004 while the appellant had lawfully and carefully parked his said motor vehicle registration No.  KAJ 765U  near Uchumi Supermarket located  at Nairobi West  Estate within Nairobi, the 1^st respondent negligently drove, managed  and or controlled  motor vehicle  registration No.  KQP 843 that he  caused  the same to violently  ram into the rear of the appellant’s  motor vehicle  causing   extensive damage to the motor vehicle KAJ 765U.

The appellant  set out  8 particulars  of negligence and alleged that  as a result of the said  negligent acts  of the 1^st respondent, the appellant’s motor vehicle  was extensively  damaged  and consequently the appellant  suffered loss and  damage  for which  the 2^nd respondents  were  liable  jointly and severally .

The case  was heard   by the  trial magistrate  Mrs J. Ragot  Principal Magistrate  who found  that indeed  there was an accident whose occurrence   was attributed  to the 1^st respondent’s negligence  who reversed  his motor vehicle  without  ensuring that  it was safe  to do so thereby  knocking  the plaintiff’s motor vehicle .  The 2^nd respondent was to be vicariously liable for negligent acts of the 1^st respondent.  Nonetheless, the trial  magistrate  dismissed  the appellant’s  suit  on the ground  that the  appellant  had produced  an invoice  and receipts for  repair of his vehicle  but did not  produce  an assessment  report  which could  have shown the extent  of the damage and whether the said damages were a direct  result  of the accident.  She therefore concluded that it was probable that the repairs might not only have   been for damages from the accident, and dismissed the appellant’s suit and ordered that each party bear their own costs.  

Being dissatisfied with that finding and decision, the appellant filed this appeal on 9^th September 2010 vide a Memorandum of Appeal dated     7^th September 2010 faulting the trial magistrate for:

1. Holding that the plaintiff had not proved his case against the respondents on quantum despite the weight of the evidence on record.
2. Dismissing the plaintiff’s case against the respondents when evidence on record showed otherwise.
3. Holding that the repair quotation form/assessment form produced in evidence by the appellant   was not conclusive proof of damages contrary to the provisions   of part IV of the Evidence Act Cap 80 Laws of Kenya.
4. Imposing a heavier burden of proof to the plaintiff than that which is required in civil cases.
5. Considering extraneous matters and going out of the ambit of the proceedings and evidence before her and hence arrived at an erroneous decision on quantum.
6. Failing to consider the plaintiff/ appellant’s submissions thus arriving at an erroneous finding on quantum.

The  appellant  prayed that  the appeal herein be  allowed and the judgment on quantum  as arrived at   by the trial court be  set aside  and the  claim be allowed  with interest  from date of institution of suit  till payment in full; and that  the court do make  further  relief  as it may deem just  to grant.

The appeal was canvassed by way of written submissions after all parties complied with procedural requirements for the hearing of the appeal.

In support  thereof, the appellant  through his counsel M/S Wangai Nyuthe  & Company Advocates  filed written submissions  on 24^th August  2015, and  framed  4 issues for  determination  namely:

1. Whether the quotation report by the garage serves the same purpose as assessment report.

On this issue, the appellant  submitted that the quotation  report by Dhanjal Panel Beaters though christened  as quotation  was in  actual sense  an assessment  report since  it contained  all the material information that would be in a  standard assessment  report.  Further  that the said  quotation principally indicated the extent  of the damage  and estimated  cost or  amount incurred in repairing the accident  motor vehicle  hence it  fulfilled  the purpose of an assessment  report.

The appellant’s counsel emphasized  that the  significance  of an assessment report is to help the  court in  ascertaining  the actual  and extent  of damage suffered  and that therefore  that role  was fully fulfilled  by the said   quotation as it comprehensively  stated  the damage suffered  by the appellant’s vehicle  and the cost that would be incurred  in repairing  the  same.

Reference was made to  the  Black’s Law Dictionary 6^th Edition page 116  where the  term “assess” is defined  as the ascertaining  or fixing the value of  something or  a valuation  or a determination as to value of property  and that  Black’s Law Dictionary 9^th Edition page 1370 which defines the term “quotation” as  stating a  commodity’s current price. 

For the above  reasons, it was  submitted that  the document  produced  by the appellant  served  a similar  purpose  of stating the  value of  the  subject matter they  were dealing with which  was  the value/cost of  repair of the appellant’s motor vehicle.

The appellant’s counsel cited Court of Appeal decision in CA No. 310 of 2005 Abdi Ali Dere V Firoz Hussein Tundal & 2 Others [2013] e KLR where the Court of Appeal  referred  to the case of Kenya  Industrial Industries Ltd V Lee Enterprises  Ltd [2009] KLR  135 where it was stated:

“Generally speaking, the normal measure of damages for damage to goods is the amount by which the value of the goods has been diminished.  The cost of repair is prima facie the measure of diminution in value   of the goods and therefore the correct measure of loss suffered.  Where, however, the goods are destroyed, the owner is entitled to restitution in integrum and the normal measure of damages is the cost of replacement   of goods, that is the market value at the time and place of destruction.”

2. On the issue  of whether  the repairs  were conducted  as per the quotation report, the appellant  submitted that the  repairs  were  carried out as per the quotation  and neither  did is surpass  nor go below the  quoted amount  as evidenced  from the  invoice  dated  16^th September  2004 and receipts  dated 16^th September  2004 and  17^th December  2004  from Dhanjal Panel Beaters.
3. On whether the trial magistrate placed a higher standard  of proof  than required  in a material  damage  claim, it was  submitted by the appellant’s counsel that the standard of  proof in civil cases is on the balance of  probabilities  and not beyond  reasonable  doubt.  That in this case  the appellant  had produced  documents  to achieve  that standard  and that the trial magistrate’s finding that  lack of an assessment  report in guiding   the court on the extent of the damage  sustained  and the approximate cost  of fixing the  damage  was  elevating the standard of proof in civil cases  above that  required on a balance  of probabilities  and therefore  wrong, especially  in the absence of any evidence  by the respondents to the contrary  in respect  of the estimated cost of  repair  as well as the  actual amounts incurred  by the appellant  for repairs  at the trial.
4. On the issue of  whether the  trial magistrate  erred in denying  the appellant  the claimed damages, it was submitted that the trial magistrate erred  in failing to consider the quotation report  as adequately  providing the relevant  information as to the  extent  of damage  and estimated  cost of repair  of the appellant’s vehicle   which denied the appellant  justice  and a valid claim.  The  appellant’s counsel relied  on the  previously cited case of Adi Ali Dere V Froz Hussein Tundal &  2 Others (supra) to the effect that it  was wrong  to dismiss  the  claim of  special damages   and evidence adduce in support of them due to a small anomaly,  and that each head of special damages should be  considered independently as prayed and granted or dismissed  individually  on the weight  of evidence  adduced  in support thereof. Further, that in the said case  the court  was clear that  the burden of proof in civil  cases  was  on a balance of  probabilities  and not beyond  reasonable  doubt .  They prayed that the court do allow the appeal and overturn the trial magistrate’s decision.

The appeal herein was vigorously opposed by the respondents through their counsel’s firm K. Macharia & Company Advocates who filed their submissions dated 13^th October 2015 on the same day out of time initially granted but with leave of court...

The respondents supported the decision of the trial  magistrate for  reasons that  the evidence was  that after   the accident, the motor vehicle  was driven away to different  destinations but the appellant  admitted that  he first drove to  his house and that  during cross examination, the appellant  stated that the only damage  to the car  at the scene  was the rear bumper and the exhaust  pipe.  However, the damages  which were  repaired   were so many and  are not  consistent  with what  the appellant stated  in court   and therefore the court could  not be sure  if these  damages  were as a  result or direct result  of the accident  or were there  before or  afflicted later after  the accident.  Further, that the vehicle was not inspected and neither was the assessment of the damages done.  That an inspection would have helped the court to ascertain the direct damages as a result of the accident and assessment would have given a comparative figure of the repairs to be carried out.  That by driving the vehicle  to his house  no one  could tell what might  have happened  in between hence the benefit  of doubt   must go to the respondents  as it was not possible to prove  whether the damages claimed  were as a result of the accident involving  the respondents’   and appellant’s  motor vehicle   on 2^nd July 2004.  The respondents urged this court to dismiss this appeal.

This being a first appeal, this  court is  forever reminded  of its primary duty as espoused in section 78 of the Civil procedure Act namely:- to  re-evaluate, reassess and reanalyze the extracts of the  record and  draw its  own conclusions though   it should always bear  in mind that it neither saw nor  heard the witnesses  as they testified and  should make an/due  allowance  in that respect.  Secondly, that the responsibility of the appellate court is to rule on the evidence   on record and not to introduce extraneous matters not dealt with by the parties in the evidence.  (See Kenya Ports Authority V Kuston (Kenya) Limited [2009] 2 EA 212)  CA.

Re-examining   the evidence on record, the appellant testified as PW1.  He did not call any witness.  Regarding  the damages  caused to his vehicle  which is  material  to this  appeal since there is no dispute  regarding  liability, the appellant  stated that  after the accident  the police  carried out   investigations  and he  was  given a police abstract.  After that, he repaired the motor vehicle at Dhanjal Panel Beaters.  Quotation and   assessment was made.  The quotation was dated 16^th September 2004 total cost was 103,066.00 which he produced as P exhibit 3.  The vehicle was repaired to his satisfaction.  An invoice was raised for kshs 103,066.00 by Dhanjal dated 16^th September 2004.  He produced it as P exhibit 4.  He paid  by receipts of  shs 60,000 on 16^th September 2004, P exhibit  5 and shs  43,066  dated  17^th December 2004 produced as  P exhibit 6.  The vehicle was released to him after paying full amount.  He was satisfied with the repairs and was issued with a satisfaction note dated 6th October 2009(sic).  He also stated that the 1^st respondent hit him from the rear while reversing as the appellant was stationery off loading a consignment at Uchumi Supermarket.  He prayed for the reimbursement of repair loses and assessment fees and for the abstract.  He did not have evidence of loss of user.  He also stated that it took 2 months to repair the vehicle.

In cross examination by Mr Macharia counsel for the respondents, the appellant   responded that after police took statements, he drove the vehicle to his house and the next day he took it to the garage.  He stated that the vehicle was assessed on 5^th September 2004.  He denied that the vehicle was examined by a motor vehicle examiner.  He stated that they took photos of the accident. 

The 1^st defendant/respondent Lazarus Thuram Richoro testified as DW1.  He did not call any other witness.  According to him, the appellant’s vehicle  was reversing  when its  bumper  and exhaust  touched the  2^nd respondent’s  motor vehicle  which  was  in motion and that he would have repaired  the bumper.

As earlier stated, upon the  trial magistrate finding that the respondents  were liable for the accident, nonetheless dismissed  the appellant’s suit for lack of  evidence  of the damages caused to the vehicle, stating that there was no assessment  report which  could have  shown the extent  of  the damage  and whether  those damages  were a direct consequence  of  the accident, and that  in the absence of   the assessment  report, it  was probable that  the repairs  might not  only  have been for the  damages from the material accident.

I have carefully considered this appeal; the evidence in the court below, the submissions by both parties’ advocates in the court below and in this appeal, as well as the authorities relied on by the appellant’s counsel.  The  respondents did not cite  any  past decision but they  fully supported the findings and decisions  of the trial magistrate, contending  that indeed  the appellant’s  testimony did not  support his documentary evidence  on the  damages  caused to the   vehicle and that in the  absence of an assessment  report, the court could not tell whether  the repairs  could have  been for  damages other than those occasioned by the  accident.

The appellant  maintained that  the trial court erred in law and fact  in dismissing  his case  when there  was sufficient  evidence adduced on a balance of  probabilities  to prove that the vehicle’s  damages were assessed  and the value  of damages  costed/estimated  and the repair  done to his satisfaction  upon which  he paid  for the  assessment/quotation and the repair charges.

From the evidence  on record  and the above  two rival  positions by the parties, the  only issue  for determination  in this appeal, in my view, is whether  the appellant  proved on a balance of  probabilities, the special damages  pleaded, as having  been  a direct consequence  of the accident  and therefore  whether  the trial magistrate erred in   law and fact  in dismissing  his case.  There are other ancilliary questions that this court may have to consider while answering that main question.

There is no dispute that an accident did occur involving the appellant and 2nd respondent’s motor vehicle as driven by the 1st respondent.  There is  also no  dispute that the  vehicles  were owned  by the appellant  and 2^nd respondent  respectively as  described  in the plaint.  There is further no dispute that motor vehicle registration no.  KAJ 765 U Toyota Camry belonging to the appellant was hit   by the 2^nd respondent’s motor vehicle KQP 843 while the latter was being reversed by the 1^st defendant.  There is no dispute that the trial magistrate after hearing both parties evidence she found that the defendants were negligent jointly   and severally for the material accident.  That finding on liability of the respondents has not been challenged by way of any cross appeal.  the question is whether  the appellant proved  material damages that were allegedly repaired at a cost  and that the damages were as a direct result of the accident and therefore whether  the appellant  was entitled to be  compensated   for the loss and damage totaling  kshs  133,666 as pleaded.

Starting with loss of user, of kshs 25,000 it is important to note that the claim was a special damage which must not only be   specifically pleaded, but it must be strictly proved by evidence. In this case,  the appellant conceded  in his evidence that  he had no evidence of  loss of user  and that  being the case, I need not  delve further other than to find that  there  was no proof of loss of  user hence the claim could  not have been awarded as pleaded.  See Douglas Odhiambo Apel & another Vs Telkom (K) Ltd CA 115/2006; Patlife V Evans [1892] 2 QB S 24; Kampala City Council V Nakaya [1972] EA 446 & Hahn V Singh [1985] KLR 716.

In all cases, the burden of proof is always cast on the party who alleges (see Sections 107-109 of the Evidence Act Cap 80 Laws of Kenya). On the claim for police abstract, the court has seen police abstract produced as P exhibit 2 No. 606651 but there is no receipt for kshs 100 as pleaded.  Accordingly that claim is also rejected for want of proof.

Then there is the main or substantive   claim for the repair cost amounting to kshs 103,066.00 as a result of the damage caused to the plaintiff’s/appellant’s motor vehicle.  Indeed as the trial court did find, that although the  appellant  alleged that   his motor vehicle was  damaged, the  assessment  report  was not produced in evidence  and that without it, it  was not possible  for the court to  establish  whether the damage  was a direct  result of the accident  and therefore the estimated cost of repairs.  Okwengu J (as she then was) in Omari Gulea Jana V BM Muange  [2010] e KLR  held as  follows in a case of  similar facts:

“Although it was alleged that motor vehicle KAC 996F was damaged, the assessment report was not produced in evidence.  This  was crucial  evidence as without  the assessment  report  it  was impossible  for the  court to establish  the damage to the motor vehicle  on the estimated  costs of repairs.  The fact that UAP insurance paid  a sum of  kshs  271,874 to Unity Auto Garage is not sufficient   to establish that  payment  was in respect of repairs  to the damage  to motor vehicle  KAC 996F arising  from the accident  subject of this suit.  I find the evidence adduced by the respondent was inadequate to strictly prove his claim.  The trial magistrate appears to have been swayed by the fact that the appellant did not call any evidence.  The trial magistrate apparently lost sight of Section 107 of the Evidence Act which placed the burden of proof squarely upon the respondent.  Her judgment cannot be supported.”

In the instant  case, albeit the trial magistrate did not  base her  decision of any past  decision         no doubt, she  made her  finding  similar to the one made  above  by Honourable  Okwengu J ( as she then was). Similarly in Gachanja  Muhori & Sons  Ltd  & Another  V Catholic Diocese  of Machakos [2014] e KLR, B. Thuranira  Jaden J  in her determination  of an appeal where the appellant  complained that  there  was no proof of repair works done  and or that the respondent’s motor vehicle sustained  damages, the Learned  Judge, in observing  that  no motor  vehicle assessor  was called to give evidence,  stated that :

 “There was nothing to show if the sum stated by the respondent was properly spent to put the motor vehicle back on the road.  The best evidence  in this report  would have  been  supplied  by the motor vehicle assessor …….( see  David Bagine V Martin Bundi  CA Nairobi  283 of  1996)”

The Learned Judge  went further  to state that:                             “Without  the motor vehicle  assessor’s  report, it is  difficult to tell what  duration it would take  to repair  the motor vehicle …..  The award of loss of user for a period of 90 days was therefore not based on any cogent evidence.”

In my humble view, albeit the above decisions are  persuasive, they  espouse  the principle  that repair  costs constitute  a material damage  claim and therefore should not be denied  where there is proof of such damage  and loss.

In this case, the plaintiff/appellant   pleased for repair costs.  He did not state the damages which were occasioned to his motor vehicle, necessitating he repairs.  It is not enough to state that I repaired my vehicle.  The quotation document produced as P exhibit 3 from Dhanjal Panel Beaters did not state the exact or actual damages that required repair.  The said document dated 5th July 2004 States:

“Quotation only”

To repair to accident damage to (sic) at rear end and to repair damaged parts etc

• Labour  shs 18,500
• Painting  (metallic ) shs  25,000
• Gas/Miscellaneous  4000
• Under seal 2000
• Spares: UHS – rear  tail lump Assy -8500
• Rear bumber  bar  28,000
• Rear B/Bor end  Holding bracelet  2850/-
• UH/S rear wing  ( to repair)
• UHS rear wing liner panel ( to repair)”

                                                    __________________

                                                     88.850

                        + 16%VAT            14 216

  Total                                          103,066/-

Kshs one hundred three thousand and sixty six only.

Those are the scanty details given on the quotation form on owner’s instructions.  The invoice  P exhibit  4 issued to the  appellant  by the same  firm for  kshs 103,066 dated 16^th September 2004 show or describes   “ repaired  to accident damage to above vehicle  as per our quotation  of 5^th July 2004 and  per your  authority  dated               4^th August  2004.  The receipts  for payments  are also  produced  as     P exhibit   5 and P exhibit 6 for  kshs  60,000- and  43,066 respectively, dated 16^th September   2004 and 17^th December 2004.  The appellant also produced a satisfaction note signed by him on 6^th October 2004.

The question is, would that  evidence of quotation  for repairs  without a valuation  or assessment  report on  the actual accident  damages  constitute  sufficient  evidence  for this court to award damages for the damage   and loss?  I think not.  In the case of Douglas Odhiambo Apel & Another V Telkom (K) Ltd (supra) the Court of Appeal held that:

“…….a plaintiff is under a duty to present evidence to prove his claim.  Such proof cannot be supplied by the pleadings or submissions.  Cases are decided on actual evidence that is tendered before the court………Unless   a consent is entered into for a special sum, then it behoves the claiming party to produce evidence to prove the special damages claimed.  Submissions, as he correctly observed, are not evidence………..”

In Nkuene Dairy Farmers Cooperative Society Ltd & another V Ngacha Ndeiya [2010] e KLR, the court rendered itself thus:

“In our view special damages in a material damage claim need not be shown to have been actually incurred.  The claimant  is only required  to show the extent  of the damages  and what it would  cost to restore  the damaged  item  to as near as possible the  condition   it was in before  the damage complained  of.  An accident assessor gave details of the parts of the respondent’s vehicle which were damaged.  Against each item he assigned a value.  We think the value of repairs   was given with some degree of certainty.”(Emphasis added).

From the above decision, the court is saying that it is not enough to say my vehicle   was damaged as a result of an accident and I incurred costs of repairing it.  The claimant must plead with certainty the alleged damages.  He must also testify or adduce evidence, both orally and documentary to prove that the damages that were pleaded are the ones that were actually occasioned and for which repairs   were done or effected at a cost.  Having examined the plaint filed by the appellant, it only claimed for “repair costs”.  The actual damages were never ascertained and pleaded.  Secondly, in his evidence in chief, the appellant never stated with any precision the damages that were occasioned to his vehicle necessitating repairs and the cost incurred in repairing it.  He did not get any accident assessor to assess the accident damages and assign a value thereto.

In my view, the appellant was simply throwing receipts and other documents at the court.  The so called quotation  and his attempt  to define  what a quotation and an assessment  is does not persuade  this court to accept  on the evidence  available  that the damages  that were  occasioned by the  accident  are the ones which were repaired at the given cost of repairs.  In other words, there was no degree of certainty of the actual damages and hence the repair costs could not be precisely be assigned to the accident damages.  And in the absence of any evidence of the extent of the damage, the repair costs would be an irrelevant consideration.

In Patcliffe Vs Evans [1892]2 QB 524 (CA) the court stated that:

“In all actions accordingly, on  the case where  the damage  actually  done is   the gist of the action, 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 the pleading and proof of  damage, as is  reasonable, having regard to the circumstance 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.”

In this case  the court finds  that the gist of the appellant’s  case in the lower court  was  one of  special damage caused  to his  vehicle as a result of negligence  driving of the offending  vehicle by the 1^st respondent, as established  by the trial court.  The law places  a heavy burden  on a party  who alleges that they suffered  special damages  to specifically plead those damages and  strictly plead  the  amounts assigned to each specific damage.

In the case of damages to a motor vehicle, it was critical that the specific damages or the nature of the damage itself be pleaded and strictly proven.  The court would not assess damages which are not specifically pleaded.  Only a specialist  and qualified  motor vehicle  assessor would have examined  the vehicle and  set out  the  exact damages before  stating  what parts required replacement or  repair  as the case may be.  It was  not enough for a  garage  to quote  for repairs  without  an accident  assessment  report  on the specific  damages  caused  by the accident and the value  estimated for each damaged part.

Therefore, on the evidence, the law and submissions, I find that   the trial magistrate did not err when she dismissed the plaintiff’s suit for want of proof of special damages allegedly caused to his vehicle following the material accident.  The appellant’s pleadings and evidence fell short of proving damages to his motor vehicle capable of occasioning costs of repairs.  The appellant  did not  discharge the burden of  proof on a balance of probabilities  and neither  did he  dispel the doubt whether  the amount  claimed as repair costs did not  also cover  pre-accident  damages  to the appellant’s vehicle, since he did not  even take  his vehicle  to the police   for  inspection  and an inspection report issued on the  accident damages  that may have been noted.

It is for those reasons that I uphold   the trial court’s decision and dismiss this appeal with costs of the appeal to the 2^nd respondent only.

Dated, signed and delivered in open court at Nairobi this 18^th day of February 2016.

R.E. ABURILI

JUDGE