Njuguna v Thumari (Civil Appeal E464 of 2021) [2023] KEHC 26934 (KLR) (Civ) (15 December 2023) (Judgment)
Neutral citation:
[2023] KEHC 26934 (KLR)
Republic of Kenya
Civil Appeal E464 of 2021
AN Ongeri, J
December 15, 2023
Between
Naomi Njuguna
Appellant
and
Benjamin Thiongo Thumari
Respondent
(Being an appeal from the judgment and decree of Hon. M. W. Murage (SRM) in Milimani CMCC No. E8083 of 2018 delivered on 30/6/2021)
Judgment
1.The appellant was the plaintiff in CMCC No 8083 of 2018 where she sued Benjamin Thiongo Thumari (the respondent) seeking special damages of ksh.220,559 with costs and interest in respect of damages to her motor vehicle registration No. KCD xxx when it was hit by the respondent’s motor vehicle registration no. KAU xxxU.
2.There was interlocutory judgment entered on 3/5/2019.
3.The appellant did not testify during formal proof and the trial court dismissed the suit.
4.The trial court also noted that recovery/interim payment payment voucher dated 30/3/2016 indicated the insured as Atlas Copco East Africa Ltd.
5.The trial court said that the appellant and Atlas Copco did not testify and she dismissed the suit.
6.The appellant has appealed against the dismissal on the following grounds;i.The learned trial magistrate misdirected herself and erred both in law and in fact by dismissing the appellant’s case against the respondent on liability.ii.The learned trial magistrate misdirected herself and erred both in law and in fact by dismissing the appellant’s case against the respondent on quantum.iii.The learned trial magistrate misdirected herself and erred both in law and in fact by finding that the appellant had not proved that she was the insured of the suit motor vehicle when evidence on record proved otherwise.iv.The learned trial magistrate misdirected herself and erred both in law and in fact in calling for a higher threshold of proof that what is required in civil cases.v.The learned trial magistrate misdirected herself and erred both in law and in fact in calling for proof beyond reasonable doubt instead of proof on a balance of probabilities required in civil cases.vi.The learned trial magistrate misdirected herself and erred both in law and in fact by insisting on a formal proof hearing in a material damage claim where the plaintiff had already obtained judgment against the defendant.vii.The learned trial magistrate misdirected herself and erred both in law and in fact by failing to find that formal proof hearing in special damage claim where there is already default judgment was a nullity and a complete waste of precious judicial time.viii.The learned trial magistrate misdirected herself and erred both in law and in fact by failing to find that the default judgment entered against the respondent should have sufficed.ix.The learned trial magistrate misdirected herself and erred both in law and in fact by totally failing to consider the plaintiff’s submissions on record thus arrived at an erroneous finding on liability and quantum.
7.The appellant filed submissions as follows; the appellant submitted that the trial court errored as judgment on liability had been entered in favour of the Appellant against the respondent herein with interlocutory judgment on liability having been entered at 100% in absence of the defendant entering appearance and filing defence as provided under Order 7 rule 1 which states:
8.The respondent herein was duly served with summons to enter appearance as evidence by the affidavit of Patrick Ongeri sworn on the 14/1/2019 and filed on 5/4/2019.
9.The Respondent, however failed to enter appearance and file his defence and the Court at the request of the Appellant on 5/4/2019 proceeded to enter judgment at 100% in favour of the Appellant in default of appearance on 3/5/2019.
10.The appellant further submitted that the Policy Schedule, Police Abstract and Motor claim form clearly indicates that the appellant’s motor vehicle registration number KCD 931 D was insured by First Assurance Company Limited. It is from this contract of insurance that First Assurance Company Limited catered for the garage repair costs, towing fees, assessment fees, investigation fees and e-copy of motor vehicle search fees.
11.Further, that First assurance company Limited is, therefore, entitled to recover costs incurred from the owner of motor vehicle registration number KAU 488U, which was blamed by the police for the accident, under the doctrine of subrogation.
12.The appellant submitted that PW1, Geoffrey Njenga a Representative of the said insurance company testified in court that they were the insurer of the Appellant's motor vehicle registration number KCD 931 D and produced the claim form at the material time of the accident with the police blaming motor vehicle registration number KAU 488U for the accident as per the police abstract.
13.It was also indicated therein that the insurer incurred a total sum of Kshs. 132,719 in repair and other attendant costs as a result of the damage.
14.The appellant motor vehicle was assessed by Bright loss assessors who assessed the cost of repairs inclusive of replacement of damages parts, paining, labour and in their report dated 18/9/2015. The assessors were paid for their services for the sum of Kshs. 6,400.
15.The vehicle was further repaired by St.Austins Ltd who were paid the full repair costs of Kshs. 132,719. The vehicle was re-inspected by Bright loss Assessors and found to have been repaired as per the assessment report at the sum of Kshs. 1,990.
16.This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.
17.In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -
18.The issues for determination in this appeal are as follows;i.Whether the case seeking special damages required to proceed to formal proof.ii.Whether the trial court misapprehended the law in this case and arrived at an erroneous decision.iii.Whether the judgment of the trial court should be set aside and the appeal allowed.
19.On the issue as to whether this case required to proceed to formal prove, I find that the claim was a liquidated one in the form of special damages and there was no reason to proceed with formal proof.
20.Entry of default judgements is provided for under Order 10 rules 4(1) of the Civil Procedure Rules as follows;
21.In the case of J C Eksteen vs. Kutusi S/O Bukua [1951] LRK 90 the Court held as follows;
22.On the issue as to whether the trial court misapprehended the law and arrived at an erroneous decision, I find that it was not necessary for the appellant to testify since this suit was filed on the doctrine of subrogation where an insurance company is allowed to follow up the compensation after settling the claim.
23.In the case of Kenya Power & Lighting Company Limited v Julius Wambale & Another (2019) eKLR, it was held as follows;
24.I also find that the trial court applied a high standard of proof in a case that had an interlocutory judgment where liability was already settled.
25.I find that the appeal herein has merit and I allow it and set aside the order of dismissal of the sit by the trial court.
26.The Respondent is held 100% liable on account of the interlocutory judgment.
27.I enter judgment in favour of the appellant against the respondent in the sum of kshs.220,559 made up as follows;
28.The respondent to pay costs of the suit and interest from the date of filing suit in the lower court until payment in full.
29.The respondent also to pay the costs of this appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023.………………………A. N. ONGERIJUDGE