Macharia v Kiruthi (Civil Appeal 023 of 2022) [2024] KEHC 3685 (KLR) (2 April 2024) (Judgment)
Neutral citation:
[2024] KEHC 3685 (KLR)
Republic of Kenya
Civil Appeal 023 of 2022
SM Mohochi, J
April 2, 2024
Between
Francis Macharia
Appellant
and
Mary Kiruthi
Respondent
(Appeals Partially (on the Issue of Loss of User, Value of The Vehicle and on Costs) from the Judgment of the Hon. Resident Magistrate (R. OMBATA) dated 1st February, 2022 in Nakuru Chief Magistrate's Court Civil Suit No. 1319 of 2018)
Judgment
Background
1.The plaintiff now Appellant instituted the suit following an accident that occurred on the 7th of July, 2018 involving motor vehicles registration no KCE 386 V, Mazda Vanette Matatu belonging to the Appellant and KCJ 609 F, Toyota Isis belonging to the Respondent. Consequently, the plaintiffs' motor vehicle KCE 386 V Mazda Vanette Matatu was extensively damaged and was declared to be written off. The plaintiff moved Court for judgment as follows;a.Kshs 485,700/= being the value of the motor vehicle excluding salvage value, towing fees, assessment fees and search fees,b.Kshs 2,500/= per day from 7th July 2018 being loss of daily earnings per day when the motor vehicle shall be reinstated,c.Costs of the suit and interests on a, b and c.
2.The Court upon hearing the case rendered its judgment on the 1st of February, 2022 as followsi.Liability- defendant held to be 100% liableii.Quantum-a.Value of motor vehicle- nilb.Damages for loss of user- nil.iii.Special damages- 34,450/=iv.Each party to bear its own costs.
3.The Appellant Francis Macharia Ndirangu, being dissatisfied with the Judgment filed the Appeal on 21st of February 2022 Partially (on the Issue of Loss of User, Value of The Vehicle and on Costs) on the Judgment on the following eleven (11) grounds: -i.That, the Learned Resident Magistrate erred in law in holding that the Appellant had only proved a sum of Kshs 34,400/= in special damages when the entire evidence which was tendered by the Appellant clearly supported all the claims set out in the Plaint dated 16th October 2018.ii.That, the learned Resident Magistrate erred in law, in disregarding all the Appellant's evidence and in making a finding to the effect that the assessment report relied upon by the Appellant was not from an expert, all these notwithstanding the contents of the plaint and the tendered evidence.iii.That, the learned trial magistrate erred in law and in fact, by not awarding damages for loss of user and appreciating the fact that the motor vehicle was a matatu and in fact finding the Respondent liable for the accident.iv.That, the learned trial magistrate erred in law and in fact, by not properly analyzing and or considering the evidence by all parties, applicable legal principles, and other material on record while arriving at her decision finding that the Court would not rely on the bank statement and yet the appellant's evidence was that the account was used for the deposit of the income from the subject motor vehicle.v.That, the learned magistrate erred in law and in fact, by holding that the loss of user and the claim for the salvage was not proved and even subjecting the Appellant's evidence not on the highest probability but beyond reasonable doubt yet this was a civil claim.vi.That, the learned trial magistrate erred in law and in fact, by not taking into account the legal/factual effect of the Appellant's evidence, failing to properly evaluate and consider the pleadings, Appellant's submissions, and the applicable law and principles on the award of loss of user and also the value of the vehicle.vii.That, the learned magistrate failing to consider that, where it is established that damage has been incurred for which a defendant should be held liable, the plaintiff may be accorded the benefit of every reasonable presumption as to the loss suffered.viii.That, the learned Resident Magistrate read too much into the Respondent's submissions and as a result erred in law by ultimately making a finding that the Appellant had not proved his claimix.That, there was no legal basis laid by the Learned Resident Magistrate as would have entitled her to disallow the Appellant's claim.x.That, the learned Resident Magistrate erred in law, in disregarding the fact, that the Appellant's evidence in support of his case remained uncontroverted and that the Respondent herein offered no evidence and did not avail their Advocates to test the Appellant's evidence.xi.The Appellant prays that the Learned Resident Magistrate's Judgment delivered on 1st February, 2022 be set aside and that Judgment be entered for the Appellant as prayed for in the Plaint dated 16th October 2018, and the costs of this Appeal be borne by the Respondent.
4.The Appellant argued all grounds of Appeal jointly that, as a 1st Appellate Court, this Court has to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions, bearing in mind that the Court did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the Court in a first appeal such as this one was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) in the following terms;
5.That, the Appellant was satisfied with the finding on liability as such the appeal is premised on the quantum payable only and that the issues to be addressed are therefore as follows;1.What constitutes a material damage claim?2.Loss of user/ business claim.
6.As to what constitutes material damage claim? and did an accident occur? the Appellant contends that, as per the police abstract Pexh-9, it is not in dispute that on the 7th of July, 2018, an accident involving motor vehicles KCE 386V, Mazda Vanette Matatu and KCJ 609 F. Toyota Accident occurred and as a result motor vehicle KCE 386V, Mazda Vanette Matatu was extensively damaged. The question of liability was resolved by the Trial Court with the Respondents being awarded 100% liability which the appellants are not appealing.
7.As for whether there any damage to property? the Appellant supplied an assessment report prepared by Automobile Association of Kenya (AA Kenya) and called on the assessor who examined the motor vehicle KCE 386V, Mazda Vanette Matatu to testify on his behalf and produce the assessment report.
8.That on the 27th day of August, 2019, the assessor namely Saleh Wamese testified that he works with AA Kenya and that he was the one who assessed the Appellants' motor vehicle KCE 386V and accordingly prepared a report. His assessment of the motor vehicle was that it was involved in an accident; the damage were extensive and as such was written-off. He further testified that upon examining the vehicle, he prepared the report Pexh 10(a) produced before the Court and affirmed that it was his signature on the report.
9.That at the hearing, the qualifications and credibility of the assessor was not put into question but only raised during submissions by the Respondent. The assessor stated he was a qualified motor vehicle assessor. The Respondents herein did not file any contrary assessment report to counter Pexh 10 (a), that being the case, the Respondents were satisfied with the credentials of PW-3 as such the assessment report stands unchallenged and should have been considered as such by the Trial Court.
10.That, the Trial Court considered the Respondents submissions on the qualifications of the expert witnesses and failed to consider that at no point during the substantive hearing was his credibility and qualifications called into question, he introduced himself as an assessor and the same was not dispute.
11.The Appellant urges this Court to consider the Court of appeal decision in Nkuene Dairy Farmers Cooperative Society Itd & another v Ngacha Ndeiya ( 2010) eKLR,
12.Further in, Kimatu Mbuvi TIA Kimatu Mbuvi & Bros -v_ Augustine Munyao Kioko, Civil Appeal No 203 of 2001(2007) the Court opined,
13.The Appellant herein was required to show the extent of the damage on his motor vehicle and what it would cost to restore the motor vehicle to as near as possible the condition it was in before the damage complained of. The Appellant did so by way of an assessment report and called the assessor to testify on its strength, no contrary report was filed by the Respondents thus the report was unchallenged and uncontroverted, why then would the trial Court reject the findings of the report?
14.As to whether the Appellant entitled to any award for the damage occasioned? It is submitted that, the crux of a material damage claim is to reinstate the asset lost or damaged, in this instance motor vehicle KCE 386V, Mazda Vanette Matatu was damaged due to the negligent actions on the part of the Respondent, the damage was so extensive that the motor vehicle was written-off. Had it not been for the accident, the Appellant would have continued his matatu business to the best of his strength. The Appellant thus moved the Court for an award of Kshs 455,000/- being the value of the motor vehicle less the salvage value as per the assessment report. The principle of compensation calls on a negligent party, to pay a sum of money which will put the party who has suffered loss in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.
15.In view of the above, The Appellant urges the Court to consider the assessment report and award the Appellant the value of the motor vehicle so as to at least reinstate him to his position before the accident
16.As to Loss of User of chattel, the Appellant submits that, he testified in the Trial Court to being the owner of motor vehicle registration no KCE 386 V, Mazda Vanette and produced a motor vehicle search Pexh 1 as proof. He testified that the motor vehicle before the accident was a matatu operating as such under the umbrella of Molo Group Shuttle and was used to ferry passengers between Naivasha and Nakuru.
17.The motor vehicle earned him an estimate of Kshs 2, 500/= after expenses were deducted as indicated by PW-2 who used to deposit the profits personally. The money was always deposited at Family Bank hence production of the bank statement (Pexh 5). The account was registered in the names of Mary Wambui who is the wife to the Appellant as per Pexh 6 and the account was solely for proceeds of the matatu business. The Appellant through Pexh 3 and 4 adduced evidence in support of the claim that the motor vehicle KCE 386 V was used for his matatu business and was trading under Molo Group Service.
18.That considering the nature of matatu business, daily earnings are hard to predict, there are daily expenses like fuel, cleaning, employee payments and other needs such as service.
19.That the Appellant settled on a figure of Kshs 2,500/= being an average of the proceeds less expenses, there is a possibility the proceeds on a daily and could be more or less. The average matatu fare from Nakuru to Naivasha is 250/= which means one trip earned the matatu Kshs 3,500/= on estimate. The claimants claim of daily earnings of Kshs 2,500/= is reasonable and substantiated.
20.That, borrowing from the words of the Court of Appeal in Samuel Kariuki Nyangoti v Johaan Distelberger where the Appellant had claimed loss of user of his matatu which had been involved in an accident, the Court of Appeal opined as follows;
21.That in the case of Chinese Technical Team for Kenya National Sports Complex & 2 others v Chabari M' Ingaruni (Civil Appeal No 293 of 1998), a claim for loss of use of a vehicle - a matatu, apparently written-off in an accident, was allowed for a period of six months although no supporting documentary proof by way of books of accounts was produced upon the Court being satisfied that the vehicle was used as a means of earning income for the deceased plaintiff,
22.And in the case of Peter Njuguna Joseph & Another v Anna Moraa (Civil Appeal no 23 of 1991), this Court assessed the loss of user of an immobilized matatu by estimates of the net income and period under which it should have been repaired even though not a single document was produced.
23.And in the case of Jebrock Sugarcane Growers Co. Limited v. Jackson Chege Busi, Civil Appeal No. 10 of 1991 (Kisumu) (unreported) the Court in allowing a claim for general damages for loss of user of a lorry relied on p.226 para 394 of Halsbury's Laws of England Vol. 11 3rd Edition which stated thus:
24.Looking at a more recent case, Martin Gicimu Kamanga v Board of Governors, St Anne's Junior School, Lubao [2021] eKLR the Court in determining the place of loss of user in the Kenyan context opined as follows:
25.The Appellant produced a certified copy of Family Bank statements for the period 1st of May, 2018 to 15th July, 2018. PW 1 and PW 2 (pages 125 and 126) testified that all profits/earnings were deposited into that account after all expenses were deducted. The account was registered in the names of Mary Wambui Maina who is the wife to the Appellant and a marriage certificate attesting to that was produced. From the records produced deposits ranging from Kshs 500- Kshs 10,000/= would be deposited into the account regularly on diverse dates.
26.That PW2 corroborated this by stating that earnings from a day would vary with a minimum of Kshs 2,500/= once all expenses were deducted and also taking into account that a matatu would not necessarily been in operation every single day. Further that he was the one depositing the monies into the Bank Account No. 0180xxxxxx registered to Mary Wambui Maina.
27.That, the records provided by the Appellant were sufficient proof of the fact that he earned money from the matatu business, it is not the Appellants fault that he did not have a more sophisticated business model to track his earnings from Motor vehicle KCE 386 V Mazda Vanette, more so the Appellant could not have premeditated the occurrence of such an accident to plan or keep better records. To punish the Appellant any further yet he has already suffered immense losses from the accident would be unjust.
28.The Appellant would like to draw the Courts attention to the decision by Apaloo in Wambua v Patel (1986) KLR336 where the Court had found the plaintiff had not kept proper records of what he earned but stated;
29.That, the motor vehicle KCE 386 V Mazda Vanette was involved in an accident and as a result was extensively damaged. The Respondent was held to 100 % liable for the accident that occasioned the damage; the question of liability is not in contention at this instant.
30.That, the motor vehicle KCE 386 V Mazda Vanette was operating as a matatu and used to earn money from it, money which PW-1 and PW-2 have estimated to be Kshs 2,500/= on average and produced bank statements as proof. The records provided by the appellant were cogent, why then should the appellant be denied the prayers sought yet he is just a victim of the Respondents' negligence?
31.The Appellant therefore urges this Court to be persuaded by the reasoning of the Court in Martin Gicimu Kamanga v Board of Governors, St Anne's Junior School, Lubao [2021] eKLR and the authorities mentioned above and attached herein and find merit in our appeal.
32.The Respondent elected not to defend the Appeal or file written submissions as directed.
Determination
33.Having considered the Appeal and Appellant’s written submission’s the Court is of the view that the two issues for the consideration by this Court is; Firstly, if the Trial Court misdirected itself in failing to find that, motor vehicle KCE 386 V Mazda Vanette Matatu was extensively damaged and was declared to be written-off and secondly if the Appellant is entitled to an award under the head of “loss of user”?
34.The law regarding special damages is that, they must be specifically pleaded and strictly proved by way of evidence. In the case of David Bagaine v Martin Bundi [1997] eKLR, the Court of Appeal while addressing the issue of loss of user stated as follows:
35.In Linus Fredrick Msaky v Lazaro Thuram Richoro & Another [2016] eKLR, it was held thus: -
36.From the foregoing in the absence of any evidence of the costs incurred by the plaintiff in hiring another motor vehicle, the prayer for loss of user fails. Secondly, where a vehicle has been declared to be a write-off, a claim for loss of user ought not to be entertained since an insured is supposed to be returned to the position he was in, before the accident. Therefore, granting a prayer for loss of user would amount double compensation.
37.In Permuga Auto Spares & another v Margaret Korir Tagi [2015] eKLR, the Court stated thus: -
38.Section 48 of the Evidence Act, Cap 80 under which opinion of experts is catered for contemplates that the expert must testify; that section provides as follows:
39.The application of this provision of the law was explained by the Court of Appeal in Mutonyi v Republic (1982) KLR 203 at 210 where Potter JA observed:
40.My analysis reveals that; Saleh Wamese testified that, he works with AA Kenya and that he assessed the Appellants' motor vehicle KCE 386V and accordingly prepared a report that was produced as PEXH 10 with a finding that the damage was so extensive that the motor vehicle was written-off, which evidence was clearly disregarded in err by the trial magistrate.
41.Having considered the facts of this case, the applicable law as well as the submissions made by the Appellant’s Counsel on record, I hereby Set-aside the judgment dated 1st of February, 2022 and substitute thereof with the following orders: -i.Liability- defendant held to be 100% liable.ii.Quantum-a.Value of motor vehicle- 485,700/=b.Damages for loss of user- nil.iii.Special damages- 34,450/=iv.Each party to bear its own costs in the trial Court.v.Interest at Court rates from the date of judgment in the subordinate Court.vi.Costs of the Appeal shall be paid by the Respondent to the AppellantOrders accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS PLATFORM AT NAKURU ON THIS DAY OF 2ND DAY OF APRIL, 2024. ___________________________ S. MOHOCHIJUDGE