Kariuki v Kimondo (Civil Appeal 756 of 2016) [2022] KEHC 9948 (KLR) (Civ) (14 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 9948 (KLR)
Republic of Kenya
Civil Appeal 756 of 2016
CW Meoli, J
July 14, 2022
Between
Mwangi Kariuki
Appellant
and
Augustus Kimondo
Respondent
(Being an appeal from the judgment of L.W. Kabaria , SRM. Delivered on 16th November 2016 in Nairobi CMCC No. 5802 of 2016)
Judgment
1.This appeal emanates from the judgment delivered on November 16, 2016in Nairobi CMCC No. 5802 of 2014. The suit in the lower court was commenced by a plaint filed on September 30, 2014 by Mwangi Kariuki the plaintiff in the lower court (hereafter the Appellant) against Augustus Kimondo, the defendant in the lower court (hereafter the Respondent). The claim was for special damages in respect of a road traffic accident that occurred on October 1, 2011. It was averred that the Respondent so negligently drove, managed, handled and or controlled his motor vehicle registration number KAX 532N that he caused and or allowed it to collide into the Appellant’s motor vehicle registration number KAL 216S thereby causing it extensive damage. It was further averred as result of the said collision the Appellant’s motor vehicle registration number KAL 216S was extensively damaged, occasioning the Appellant loss and damage.
2.The Respondent filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Respondent pleaded contributory negligence against the driver of the Appellant’s motor vehicle. The suit proceeded to full hearing during which only the Appellant adduced evidence. In its judgment, the trial court found in favour of the Appellant and held the Respondent wholly liable for the accident. Judgment was entered against Respondent in the sum of Kshs. 91,800/- made up as follows:a.Special damages Kshs. 91,800/-;
3.Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds: -
4.The appeal was canvassed by way of written submissions. Counsel for the Appellant commenced his submissions by restating the duty of this court as a first appellate court to re-assess the entire evidence adduced and draw its own conclusion while bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify. Concerning damages pleaded in the plaint, counsel reiterated the Appellant’s evidence at the trial that he paid for all charges raised in respect of repairs to his vehicle and faulted the trial court for accepting payments made in respect of spare parts while declining to award the other attendant expenses, including the assessment report and urged that the Appellant was entitled to an award regarding the the costs of repairs and assessor’s fees.
5.Submitting on loss of use and mitigation of loss, counsel called to aid the decisions in Nairobi HCCC No. 4081 of 1994 Evans Crops Contractors v Isaiah Minyonga and Civil Appeal No. 311 of 2003 Khan Transporters Ltd v Peter Mbugua. He submitted that firstly, the ownership and use of the Appellant’s motor vehicle was not rebutted by the Respondent and secondly, that the trial court failed to apply the correct legal standard of reasonableness in rejecting the Appellant’s claim for loss of use which was established by evidence. In conclusion counsel submitted that this court ought to allow the repair costs, assessors’ fee and the loss of user as was pleaded in the plaint.
6.The Respondents naturally defended the trial court’s findings. Counsel addressed the court on two issues pertaining to the award on repairs and loss of user. In so doing the Respondent anchored his submissions on the decisions in Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278, Mwanasokoni v Kenya Bus Services Ltd CA No. 35 of 1985 and Peters v Sunday Post Limited on the duty of an appellate court on a first appeal. Counsel asserted that the trial court did not err when it declined to award costs for repairs as the invoice tendered in proof was neither in the Appellant’s name nor was any connection established between him and the name on the invoice. Besides, no evidence was tendered in respect of payment of the invoice by the Appellant hence the claim was not strictly proved.
7.Concerning the loss of user counsel cited Ryce Motors Limited & Coast Agency v Elias Muroki Civil Appeal No. 119 of 1995 to assert that the Appellant failed to mitigate his losses and failed to prove the claim. That the trial court’s finding that the Appellant ought to have hired alternative transportation for is charcoal business after the accident in order to mitigate his loss could not be faulted. Further it was contended that the Appellant failed to substantiate the claim by adducing credible evidence. Counsel therefore submitted that the appeal lacks merit and ought to be dismissed.
8.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: -
9.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.
10.Upon review of the memorandum of appeal and submissions by the respective parties before this court it is evident that the appeal challenges the trial court’s findings on two heads of damages, namely, repair expenses and lost user. Consequently, it is this court’s view the appeal turns on the question whether the trial court’s award on damages was justified and well founded. 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: -
11.The Appellant by his plaint averred at paragraphs 5 that:
12.The Respondent filed a statement of defence denying the key averments in the plaint by stating at paragraphs 9 that:
13.The onus was on the Appellant to plead and prove the particulars of loss and special damages pleaded in his plaint. The trial court after restating and analyzing the evidence concluded as follows concerning the Appellant’s claims: -
14.The Court of Appeal in David Bageine vs. Martin Bundi [1997] eKLR stated: -
15.Further Chesoni, J (as he then was) stated in the case of Ouma v Nairobi City Council (1976) KLR 304:-
16.The Appellant testified as PW1. It was his evidence that he paid the assessor’s fees, towing charges, bought spare parts worth Kshs. 79,000/-, paid for the repairs and to that effect produced the several documents as proof. (P. Exh.5, P. Exh.6, P. Exh.7 and P. Exh.9). During cross-examination he stated that the insurance company appointed the assessors however he was the one who paid them, notwithstanding. On being questioned concerning the receipts bearing the name of Kenya Orient Insurance Co. Ltd he asserted that he could not recall. No evidence was tendered of payments by the Appellant in this regard. The trial court declined to award the claim for assessment fee and repairs charges on the ground that the invoices tendered were addressed to Kenya Orient Insurance Co. Ltd and not the Appellant. However, the court proceeded to award the claim for repair parts estimate from Messrs. Poly Tech Assessors based on P. Exh.4 and towing fees based on P. Exh.6.
17.The Appellant has argued that he paid for all charges raised as such the trial court was inconsistent when it accepted payments for the spares but declined to award the other attendant expenses. The Respondent countered by stating that trial court did not err as the invoice in respect to the claims were not in the Appellant’s name. This court agrees with the reasoning of the trial court; the material relied on by the Appellant did not demonstrate that he met the expenses claimed, but on the contrary that the Orient Insurance Company Ltd did; and yet the suit was not one brought under the doctrine of subrogation. The trial court properly awarded the estimated cost of spare parts, but the cost of repairs and the assessment report was not shown as a cost borne by the Appellant and could not be awarded. There is no inconsistency with this finding as each item had to be considered separately; the proof of purchase of spare parts by the Appellant could not imply that the repair costs were thereby automatically proved.
18.In Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR stated that:
19.Concerning the Appellant’s claim for loss of user it was Appellant’s evidence before the trial court that because of the accident he lost use of his vehicle for a total of twenty-seven days and estimated his daily loss as a result at Kshs. 12,000/- daily. The Respondent argued that the Appellant failed to mitigate his loss, an argument with which the trial court concurred. The trial court rightly relied on the Court of Appeal decision in African Highland Produce Ltd v John Kisorio (2001) eKLR which addresses on all fours the question of mitigation of loss. It was held therein that:
20.Similarly, this court concurs with the trial court’s position that if indeed the Appellant was prior to the accident using his vehicle for business, he ought to have procured an alternative means of transportation while the vehicle was undergoing repairs in order to continue operations. This is because he had the duty to take all reasonable steps to mitigate the loss sustained as a consequence of the wrongful act of the Respondent. Like this court, the trial court was rightly perplexed by evidence by the Appellant that he instead opted to allow his business to grind to a halt. Such conduct if true appears unreasonable in the circumstances of the case. In addition, the Appellant failed to demonstrate claims that he earned Kshs. 12,000/- daily prior to the accident and that is what he lost daily following the accident. The trial magistrate cannot be faulted for so finding.
21.Flowing from the foregoing, this court finds no merit in the appeal. The appeal is accordingly dismissed with costs.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 14TH DAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Appellant: N/AFor the Respondent: N/AC/A: Carol