(Being an Appeal from the Judgment of Hon. C.A Mayamba (PM) in the Principal Magistrate’s Court at Kilungu, Civil Case No.80 of 2019, delivered on 7th May 2021)
JUDGMENT
Introduction
1. The Respondent filed a suit in the lower Court seeking special damages of Kshs 2,000,000/=, loss of user of Kshs 1,800,000/=, costs and interest at court rates with effect from 27/05/2016. He averred that he was the registered owner of motor vehicle registration number KBD 214Q (the prime mover) which accidentally caught fire on 27/05/2016 due to an electric fault and became a write off. He also averred that he had insured the prime mover through a comprehensive Insurance Cover with the Appellant hence the suit against it.
2. The Appellant filed a statement of defence and denied each and every allegation in the plaint as if the same had been set out verbatim and traversed seriatim. The Appellant averred that the damage on the prime mover was as a result of arson by the Respondent, his driver, agent and or employee hence there was no obligation on its part.
3. After the preliminaries, the matter proceeded for hearing and judgment was eventually delivered in favor of the Respondent. The trial court ordered the Appellant to pay the insured value of Kshs 2,000,000/= and loss of user of Kshs 1,200,000/= plus costs and interest.
The Appeal
4. Aggrieved by that decision, the Appellant filed this appeal on listed 16 grounds as follows;
a) The learned magistrate erred in law and fact by failing to find that the Respondent had not established his case on the issue of liability and quantum.
b) The learned magistrate erred in law and fact by misapprehending the facts and the law leading to an erroneous determination on both liability and quantum.
c) The learned magistrate erred in law and fact by misdirecting himself on the facts and evidence leading to framing of issues that were not in contest and which predetermined full liability on the Appellant.
d) The learned magistrate erred in law and fact by shifting the settled burden of proof from the Respondent to the Appellant.
e) The learned magistrate erred in law and fact by relying on an unsworn statement to discharge the need for the Respondent to call witnesses to substantiate his allegations.
f) The learned magistrate erred in law and fact by placing reliance on an inconclusive report by Parity Loss Assessors produced by the Respondent without calling the maker and an unsworn statement without the specific witness being called to substantiate its veracity on oath.
g) The learned magistrate erred in law and fact by disregarding crucial testimonies/evidence by the Appellant’s witnesses.
h) The learned magistrate erred in law and fact by disregarding the testimony and evidence of Mr. Kigo Kariuki who was an expert witness in the absence of any expert witness to offer a rebuttal.
i) The learned magistrate erred in law and fact by failing to fully appreciate and consider express terms and conditions contained in the contract/policy of insurance between the parties.
j) The learned magistrate erred in law and fact by failing to consider and sufficiently appreciate the Appellant’s written submissions dated 28th April 2021.
k) The learned magistrate erred in law and fact by failing to find that the loss by the Respondent was intentionally/deliberately initiated and thus the Respondent could not benefit from his wrongdoing.
l) The learned magistrate erred in law and fact by awarding damages for the insured sum of motor vehicle registration KBD 214Q instead of its market value at the time of loss less the salvage value retained by the Respondent.
m) The learned magistrate erred in law and fact by awarding damages for loss of user without the same being proved and contrary to the express terms and conditions of the contract/policy of insurance between the parties.
n) The learned magistrate erred in law and fact by finding that interest on the total damages award is payable from the time of filing the suit rather than from the date of the judgment delivery.
o) The learned magistrate erred in law and fact by failing to be bound by the doctrine of stare decisis and delivering a judgment devoid of relevant and recent case law.
p) The learned magistrate erred in law and fact by travelling outside the pleadings and evidence to engage in speculations which influenced the final determination.
5. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.
The Appellant’s Submissions
6. The Appellant submitted that the Respondent completely failed to prove that the cause of fire on the insured motor vehicle was not arson. It contended that the suit belonged to the Respondent and it was therefore up to the Respondent to prove that the cause of fire was electric fault. He relied on Mbuthia Macharia -vs-Annah Mutua Ndwiga & Anor (2017) eKLR where the Court of Appeal stated;
“The Judge alluded to the provisions of section 107 of the Evidence Act, which deals with the burden of proof in any case and aptly stated that it lies with the party who desires any court to give judgment as to any legal right or liability, is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden and we need not repeat, save to emphasize the same principle of law is amplified by the learned authors of the leading Text Book; - The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.
14 The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case.”
7. The Appellant submitted that there was no expert witness or opinion to corroborate the averment that the fire was caused by an electric fault. Relying on their investigation report dated 12/09/2017 (D.Ex 2), the Appellant contended that the fire was intentional as a result of arson hence it is entitled to repudiate the claim on the basis of fraud.
8. The Appellant submitted that the Respondent was not present when the fire broke out and he relied on the unsworn statement of the driver who was not called as a witness to corroborate his statement. The Appellant contended that the unsworn statement had no probative value to be relied upon by the trial court. It submitted that the Respondent did not even cause court summons to issue to the driver to attend court and testify. That besides merely stating that the driver left employment, the Respondent did not disclose any effort made to call the driver as a witness. Consequently, he submitted that the Respondent’s entire claim on cause and circumstances of the fire is founded on hearsay.
9. The Appellant submitted that the trial court erroneously relied on the unsworn statement of the driver and it was not even possible to tell whether the alleged statement was by the claimed driver. That it was imperative for the trial court to rely only on statements whose makers had testified and subjected to cross-examination. It relied on Commercial Transporters Ltd -vs- Registered Trustees of the Catholic Archdiocese of Mombasa [2015] eKLR where the court stated;
22. .it is clear that there was no evidence adduced by an independent eye witness to the material accident. The reports submitted by both the parties are basically based on the Plaintiff's driver and one a Mr. Mohamoud's statements and who were not called to testify and further on the police information.
23. It is further noteworthy that the credibility of the reports produced by the defendant by consent of both parties was never tested by the Plaintiff through cross examination considering that their makers were not available in court. The evidence therein is thereby fluid. It is therefore difficult to derive and ascertain liability from either of the reports produced by the plaintiff and defendant.
10. The Appellant submitted that the Respondent did not adduce any evidence to contradict the opinion of the expert witness who persuasively ruled out electrical or mechanical fault as the cause of the fire. That no evidence was adduced to show that DW2 carried out investigations on a wrong motor vehicle as insinuated by the plaintiff’s counsel from the bar. That the testimony of DW2 was that he had no doubts that the staff at Leakey’s storage showed him the correct vehicle because they had an elaborate system of keeping motor vehicle records in their custody. The Appellant relied on Kenya Power & Lighting Co Ltd -vs- Rassul Nzembe Mwadzaya [2020] eKLR where the court stated;
“13. Further, if there is no rebuttal of evidence by a party, that evidence remains uncontroverted. In the case of John Wainaina Kagwe.Vs.. Hussein Dairy Ltd [2013] eKLR, the Court of Appeal held as follows: -
“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”
14. Further, the Appellant alleges that the testimony of PW6 was of no probative value as the same was challenged through cross-examination and it was established that there was no basis of arriving at the said finding since PW6 confirmed that the meter box was missing. Consequently, the source of the fire could not be established. The Court of Appeal in the case of Dhalay…Vs… Republic (1995-1998) EA 29, expressed: -
“Where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected. But if a court is satisfied on good and cogent ground(s) that the opinion though it be that of an expert, is not soundly based, then a court is not only entitled but would be under a duty to reject it” [emphasis added]”.
15. Having found that the Respondent’s case remained uncontroverted, and that there was no any other evidence in conflict with the evidence by PW6, this Court notes that there were no cogent grounds advanced by the Appellant that would persuade this court to reject the evidence by PW6. Consequently, this Court finds that the trial court did not fall into error when it found that the fire was as a result of an electric fault and the Appellant was the one to blame.”
11. The Appellant submitted that the trial magistrate erroneously shifted the burden of proof to it and relied on David Ogol Alwar -vs- Mary Atieno Adwera & Anor (2021) eKLR where the court stated;
“24. It is noteworthy that the burden of proof always lies with he who alleges and therefore in this case, the burden of proof lay with the Appellant/plaintiff to prove any of the acts of negligence attributed to the Respondents/defendants. One can only prove that another is liable by adducing evidence to that effect or unless the defendant admits liability or the pleaded acts of negligence. The fact of an accident having occurred is not in itself proof of liability.”
12. The Appellant contended that the trial magistrate’s decision against it was as a result of biased assumption and not supported by any evidence presented before him. That he went outside the judicial bounds to engage on speculation without any legal backing. The Appellant cited the case of Rose Wanjiru Njiga -vs- Packson Githongo Njau & Anor (2019) eKLR where the court stated;
“17. Upon my independent evaluation of the evidence on record, I find that the Appellant failed to adduce any evidence to prove negligence on the part of the 1st defendant either as alleged in the plaint or at all.”
13. The Appellant submitted that the trial magistrate failed to consider and sufficiently appreciate its written submissions. That some of the pertinent issues raised therein were; terms of the contract of insurance between the parties, Respondent’s burden of proof on cause and circumstance of the fire, lack of probative value of an unsworn statement whose maker does not testify and the admissibility and probative value of a report and oral evidence by a qualified expert which are not controverted. The Appellant relied on Municipal Council of Thika -vs- Elizabeth Wambui Kamicha (2013) eKLR where the Court of Appeal stated;
“It is the duty of the trial court to consider and evaluate the entire evidence on record and submissions filed by counsel….it was incumbent upon the trial court to consider the submissions as filed by both parties. Failure to consider the Appellants duly filed written submissions was an error of law.”
14. The Appellant submitted that the trial magistrate failed to be guided by the doctrine of stare decisis in his judgment and made biased assumptions without justification. The Appellant relied on Consolata Awino Ogutu -vs- South Nyanza Sugar Co. Ltd (2019) eKLR where the court stated;
“19. The doctrine of stare decisis is a sound doctrine in the legal profession. It breeds consistency in decisions and interpretation of the law. It also aids in building public confidence in the core mandate of the judiciary. A court which is bound by a precedent from a higher court must follow that precedent. That is the doctrine of stare decisis.”
15. The Appellant submitted that the Respondent was not entitled to any of the reliefs sought as they were misconceived principally based on terms/conditions of the policy of insurance. That according to the policy document, any compensation due would be the market value of the vehicle immediately before the loss and not the insured value. That it was the Respondent’s duty to obtain the current market value of the insured vehicle each year. That the policy cover commenced in 2014 and would therefore have depreciated in 2016. That instead of reaching such a determination, the trial magistrate travelled outside the pleadings to engage in speculations which favored the Respondent.
16. The Appellant submitted that if the Respondent had proved his case, he would have been entitled to only the market value of the motor vehicle immediately before the loss less the salvage value. That the testimony of DW1 was that the Appellant did not take possession of the salvage because they repudiated the claim and if it was missing where the Respondent left it, then it would mean that the Respondent himself collected it.
17. The Appellant submitted that the policy of insurance expressly excluded consequential loss and as such, the alleged loss of user would not have been awarded in any event. That no tangible proof in form of books of accounts, bank statement or receipts were produced to confirm the alleged loss of user. Further, it submitted that loss of user falls under special damages which must be strictly proved. The Appellant placed reliance on Total (Kenya) Ltd Formally Caltex Oil (Kenya) Ltd -vs-Janevams Ltd [2015] eKLR where the court stated;
“From the judgment, the Respondent produced proforma invoices in support of the claims for the retained petrol station equipment. A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt and as such cannot attest to the existence of or acquisition of the goods. We consider that a proforma invoice was not satisfactory proof of the Respondent’s loss or the replacement value of the Respondent’s equipment and the learned judge misdirected himself in finding that the proforma invoices were sufficient proof of special damages for the Respondent’s equipment supposedly withheld by the Appellant.”
18. The Appellant submitted that if the Respondent had succeeded to get any awards, the interest on the awards would have been awarded from the date of judgment delivery and not before.
Submissions by the Respondent
19. The Respondent identified the following to be the issues for determination;
a. Whether the trial court erred in law and fact on the issue of burden of proof.
b. Whether the trial court disregarded the evidence by the Appellant’s expert witness.
c. Whether the trial court failed to be bound by the doctrine of stare decisis.
d. Whether the Respondent was entitled to the damages as awarded by the trial court.
20. As to whether the trial court erred on the issue of burden of proof, the Respondent relied on Section 109 of the Evidence Act for the submission that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
21. The Respondent submitted that in order to prove that the fire which engulfed his motor vehicle was a result of an electrical fault, he produced, as exhibits, a Police Abstract, Parity Loss Assessors Supplementary Report dated 30th November 2016 and the two Statements by the driver. That from the police abstract, it is evident that the incident was reported at Salama Police Station the same day it occurred and the cause of the damage is also indicated.
22. He submitted that the Parity Loss Assessors Supplementary Report was prepared at the Appellant’s request and is addressed to the Appellant’s Claims Manager. That the investigator established that whereas the trailer had been fitted with new air/pressure/electrical connections, its connecting end to the trailer showed signs of rust/fire damage. That according to the same document, the investigator also confirmed that the fire incident was recorded in the fire incident register at Mavoko Sub-County Fire Brigade Office.
23. He submitted that according to the driver’s statement, the driver observed smoke in the cabin whereupon he hurriedly pulled the handbrake and jumped out as fire had already erupted. That he tried to put out the fire with the help of well-wishers but they failed and the cabin was completely burnt by the time the firefighter arrived. Consequently, he submitted that on a balance of probabilities, he had proved that the fire was not caused by any wrongdoing. He urged the court to note from the driver’s statement that the driver had been driving for many hours and it is therefore not inconceivable that an electrical error occurred and caused the fire.
24. In answer to the Appellant’s argument that he (Respondent) failed to avail his own expert report, he submitted that the Appellant denied him access to the salvaged motor vehicle and the same is evident from the letter from Busy Angels Investment dated 22/06/ 2017. That he also reiterated the same sentiments during the hearing of the case and has urged this court to note that there was an initial report dated 26/08/2016 prepared by the same Parity Loss Assessors which the Appellant declined to avail to him. He submitted that the existence of an initial report was confirmed by Safety Surveyor’s Ltd Report dated 12/09/2017.
25. He submitted that it is feasible to presume that the Appellant concealed information which may not have been favorable to their assertions of arson. Relying on Article 35(1) (b) of the Constitution of Kenya, 2010, he submitted that every citizen has the right to access information held by another person and required for the exercise or protection of any right. He contended that the actions by the Appellant were not only questionable but also contrary to the Constitution.
26. He submitted that from the driver’s statement, police abstract and the Parity Loss Assessors Supplementary Report, it is evident that the police and firefighters came to the scene of the fire and no one was ever charged with the offence of arson contrary to section 332(a) of the Penal Code.
27. In answer to the Appellant’s argument that the trial court should not have relied upon the statements by the driver because he was not called as a witness, he relied on Section 35 of the Evidence Act for the submission that, with respect to admissibility of documentary evidence as to facts in issue, the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
28. He submitted that he testified to the effect that the driver was no longer his employee and was therefore unable to secure his attendance. It was also his submission that the Appellant never disputed the driver’s statements and also produced the driver’s statement as part of their evidence. Further, he submitted that no objection was raised opposing the production of the statements during the hearing.
29. He submitted that the Appellant equally had the evidential burden of proving that the fire was caused by arson as outlined in Section 109 and 112 of the Evidence Act. That the Appellant wanted the court to believe in the existence of arson and therefore the burden of proving it was upon them which they failed to do. He relied on Sambayon Ole Semera -vs- Kalka Flowers Limited & another [2021] eKLR where the court held as follows: -
“Section 109 of the Act provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. In that case, the 1st defendant wanted the court to believe that the plaintiff donated the power to Halai which the plaintiff denied. The burden of proof, therefore, shifted to the 1st defendant on this issue. The fact that evidential burden of proof can shift depending on the circumstance of the case, was stated by the Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR…”
30. In view of the foregoing, he submitted that he satisfied his legal and evidential burden of proof in accordance with the Evidence Act and the Appellant cannot claim that the trial court erred in its determination on the burden of proof.
31. On the issue of whether the trial court disregarded the evidence by the Appellant’s expert witness, the Respondent submitted that the contents of Safety Surveyors Ltd Report were rightly rejected by the trial magistrate for the following reasons;
a. The report was prepared more than 1 year 2 months after the accident which occurred on 27/05/ 2016. The date of the visit indicated in the report is 22/08/2017 which is when ash samples were also collected. It would be impossible for the conditions of the burnt vehicle or ash to remain the same after such a long period of time.
b. The vehicle which the investigators examined did not have any number plates as evidenced by the images and evidence of DW2.
c. The Respondent was not present when the investigators visited the yard where the Appellant was keeping the salvage vehicle as confirmed by DW 2.
d. DW 2 was uncertain about the identification of the motor vehicle.
e. DW 2 did not know who took the ash allegedly collected from the unmarked vehicle to the Government Chemist.
f. The vehicle from which DW 2 obtained the ash sample had been interfered with and pilfered as is evident from the Safety Surveyors Ltd report.
32. He submitted that the report by Safety Surveyors Ltd Report is inconclusive and has numerous loopholes. That even the investigator DW 2 was not sure whether his report was on the subject matter herein and no one was present with him when he conducted the investigation. The Respondent contended that there was no certainty that the ash sample was not tampered with considering that the motor vehicle had already been pilfered for more than a year.
33. He submitted that the Certificate of Analysis by the Government Chemist enclosed in the report should not be relied upon because it is not the original report and its production did not conform with Section 35 (1) of the Evidence Act. That it should be considered as a mere statement with no probative value. He relied on Christopher Ndaru Kagina -vs- Esther Mbandi Kagina & Another [2016] eKLR where the court stated;
“The duty of an expert witness is to provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise. This is a duty that is owed to the court and overrides any obligation to the party from whom the expert is receiving instructions.
Under the common law, for expert opinion to be admissible it must be able to provide the court with information which is likely to be outside the court’s knowledge and experience, but it must also be evidence which gives the court the help it needs in forming its conclusions. The role of experts is to give their opinion based on analysis of the available evidence. The court is not bound by that opinion, but it can take into consideration in determining the facts in issue. Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then rigidly judged with a mathematical precision.
Secondly, a Judge must not consider expert evidence in a vacuum. It should therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence…”
34. As to whether the court failed to be bound by the doctrine of stare decisis, he submitted that the 36-page judgment was well-thought out and the trial magistrate fulfilled his obligation by examining all the issues before him, analyzing precedent and reaching a decision that was well founded in law. He relied on Mohamed Abushiri Mukullu -vs- Minister for Lands and Settlement & 6 others [2015] eKLR where the court of appeal held as follows: -
“The principle of stare decisis requires that, although not bound to do so, the court should follow a decision of a judge of equal jurisdiction unless the decision appears to be clearly wrong. In its vertical application, a court is bound by the decisions of a court superior to it. Horizontally, while it may be desired for the sake of certainty and consistency that the court does not deviate from decisions of the courts of the same rank, decisions by courts of concurrent jurisdiction are only of persuasive nature and cannot bind the court.”
35. He contended that the Appellant has not made any reference as to how the learned trial magistrate failed to be guided by the principle of stare decisis and that just because the determination does not favor the Appellant does not mean that the trial magistrate failed to be guided by the principle.
36. As to whether he was entitled to the damages awarded by the trial court, he submitted that it is not in dispute that he had an insurance policy with the Appellant and is entitled to be compensated because the fire was accidental. That the incident falls within the definition of ‘accident’ in the policy document and loss or damage to the vehicle is covered under the policy.
37. With respect to compensation upon total loss, he submitted that according to the terms of the policy document, the issue of market value was purely advisory and not part of the policy. That the terms also indicate that the insured would be entitled to recover the value subject to the estimate stated in the schedule. Consequently, he submitted that the issue of market value is a non-issue and the Appellant should compensate him the value of the vehicle of Kshs.2, 000,000/= as evident from the schedule which was part of the policy. Further, he contended that the Appellant did not provide any alternative information on the market value of the motor vehicle and as such it should pay the amount as per the schedule. He relied on Jackson Mwabili -vs- Peterson Mateli [2020] eKLR where the Learned Judge relied on Samuel Kariuki Nyangoti -vs- Johaan Distelberger where the Court of Appeal stated;
“The damages claimed by the Appellant were in the nature of pecuniary loss which the law does not presume to be the direct, natural or probable consequence of the accident since it is subject of ascertainment by court through evidence and the application of the law relating to the measure of damages. In personal injury cases, the loss of busi
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JUDGMENT
Introduction
1. The Respondent filed a suit in the lower Court seeking special damages of Kshs 2,000,000/=, loss of user of Kshs 1,800,000/=, costs and interest at court rates with effect from 27/05/2016. He averred that he was the registered owner of motor vehicle registration number KBD 214Q (the prime mover) which accidentally caught fire on 27/05/2016 due to an electric fault and became a write off. He also averred that he had insured the prime mover through a comprehensive Insurance Cover with the Appellant hence the suit against it.
2. The Appellant filed a statement of defence and denied each and every allegation in the plaint as if the same had been set out verbatim and traversed seriatim. The Appellant averred that the damage on the prime mover was as a result of arson by the Respondent, his driver, agent and or employee hence there was no obligation on its part.
3. After the preliminaries, the matter proceeded for hearing and judgment was eventually delivered in favor of the Respondent. The trial court ordered the Appellant to pay the insured value of Kshs 2,000,000/= and loss of user of Kshs 1,200,000/= plus costs and interest.
The Appeal
4. Aggrieved by that decision, the Appellant filed this appeal on listed 16 grounds as follows;
a) The learned magistrate erred in law and fact by failing to find that the Respondent had not established his case on the issue of liability and quantum.
b) The learned magistrate erred in law and fact by misapprehending the facts and the law leading to an erroneous determination on both liability and quantum.
c) The learned magistrate erred in law and fact by misdirecting himself on the facts and evidence leading to framing of issues that were not in contest and which predetermined full liability on the Appellant.
d) The learned magistrate erred in law and fact by shifting the settled burden of proof from the Respondent to the Appellant.
e) The learned magistrate erred in law and fact by relying on an unsworn statement to discharge the need for the Respondent to call witnesses to substantiate his allegations.
f) The learned magistrate erred in law and fact by placing reliance on an inconclusive report by Parity Loss Assessors produced by the Respondent without calling the maker and an unsworn statement without the specific witness being called to substantiate its veracity on oath.
g) The learned magistrate erred in law and fact by disregarding crucial testimonies/evidence by the Appellant’s witnesses.
h) The learned magistrate erred in law and fact by disregarding the testimony and evidence of Mr. Kigo Kariuki who was an expert witness in the absence of any expert witness to offer a rebuttal.
i) The learned magistrate erred in law and fact by failing to fully appreciate and consider express terms and conditions contained in the contract/policy of insurance between the parties.
j) The learned magistrate erred in law and fact by failing to consider and sufficiently appreciate the Appellant’s written submissions dated 28th April 2021.
k) The learned magistrate erred in law and fact by failing to find that the loss by the Respondent was intentionally/deliberately initiated and thus the Respondent could not benefit from his wrongdoing.
l) The learned magistrate erred in law and fact by awarding damages for the insured sum of motor vehicle registration KBD 214Q instead of its market value at the time of loss less the salvage value retained by the Respondent.
m) The learned magistrate erred in law and fact by awarding damages for loss of user without the same being proved and contrary to the express terms and conditions of the contract/policy of insurance between the parties.
n) The learned magistrate erred in law and fact by finding that interest on the total damages award is payable from the time of filing the suit rather than from the date of the judgment delivery.
o) The learned magistrate erred in law and fact by failing to be bound by the doctrine of stare decisis and delivering a judgment devoid of relevant and recent case law.
p) The learned magistrate erred in law and fact by travelling outside the pleadings and evidence to engage in speculations which influenced the final determination.
5. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.
The Appellant’s Submissions
6. The Appellant submitted that the Respondent completely failed to prove that the cause of fire on the insured motor vehicle was not arson. It contended that the suit belonged to the Respondent and it was therefore up to the Respondent to prove that the cause of fire was electric fault. He relied on Mbuthia Macharia -vs-Annah Mutua Ndwiga & Anor (2017) eKLR where the Court of Appeal stated;
“The Judge alluded to the provisions of section 107 of the Evidence Act, which deals with the burden of proof in any case and aptly stated that it lies with the party who desires any court to give judgment as to any legal right or liability, is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden and we need not repeat, save to emphasize the same principle of law is amplified by the learned authors of the leading Text Book; - The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.
14 The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case.”
7. The Appellant submitted that there was no expert witness or opinion to corroborate the averment that the fire was caused by an electric fault. Relying on their investigation report dated 12/09/2017 (D.Ex 2), the Appellant contended that the fire was intentional as a result of arson hence it is entitled to repudiate the claim on the basis of fraud.
8. The Appellant submitted that the Respondent was not present when the fire broke out and he relied on the unsworn statement of the driver who was not called as a witness to corroborate his statement. The Appellant contended that the unsworn statement had no probative value to be relied upon by the trial court. It submitted that the Respondent did not even cause court summons to issue to the driver to attend court and testify. That besides merely stating that the driver left employment, the Respondent did not disclose any effort made to call the driver as a witness. Consequently, he submitted that the Respondent’s entire claim on cause and circumstances of the fire is founded on hearsay.
9. The Appellant submitted that the trial court erroneously relied on the unsworn statement of the driver and it was not even possible to tell whether the alleged statement was by the claimed driver. That it was imperative for the trial court to rely only on statements whose makers had testified and subjected to cross-examination. It relied on Commercial Transporters Ltd -vs- Registered Trustees of the Catholic Archdiocese of Mombasa [2015] eKLR where the court stated;
22. .it is clear that there was no evidence adduced by an independent eye witness to the material accident. The reports submitted by both the parties are basically based on the Plaintiff's driver and one a Mr. Mohamoud's statements and who were not called to testify and further on the police information.
23. It is further noteworthy that the credibility of the reports produced by the defendant by consent of both parties was never tested by the Plaintiff through cross examination considering that their makers were not available in court. The evidence therein is thereby fluid. It is therefore difficult to derive and ascertain liability from either of the reports produced by the plaintiff and defendant.
10. The Appellant submitted that the Respondent did not adduce any evidence to contradict the opinion of the expert witness who persuasively ruled out electrical or mechanical fault as the cause of the fire. That no evidence was adduced to show that DW2 carried out investigations on a wrong motor vehicle as insinuated by the plaintiff’s counsel from the bar. That the testimony of DW2 was that he had no doubts that the staff at Leakey’s storage showed him the correct vehicle because they had an elaborate system of keeping motor vehicle records in their custody. The Appellant relied on Kenya Power & Lighting Co Ltd -vs- Rassul Nzembe Mwadzaya [2020] eKLR where the court stated;
“13. Further, if there is no rebuttal of evidence by a party, that evidence remains uncontroverted. In the case of John Wainaina Kagwe.Vs.. Hussein Dairy Ltd [2013] eKLR, the Court of Appeal held as follows: -
“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”
14. Further, the Appellant alleges that the testimony of PW6 was of no probative value as the same was challenged through cross-examination and it was established that there was no basis of arriving at the said finding since PW6 confirmed that the meter box was missing. Consequently, the source of the fire could not be established. The Court of Appeal in the case of Dhalay…Vs… Republic (1995-1998) EA 29, expressed: -
“Where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected. But if a court is satisfied on good and cogent ground(s) that the opinion though it be that of an expert, is not soundly based, then a court is not only entitled but would be under a duty to reject it” [emphasis added]”.
15. Having found that the Respondent’s case remained uncontroverted, and that there was no any other evidence in conflict with the evidence by PW6, this Court notes that there were no cogent grounds advanced by the Appellant that would persuade this court to reject the evidence by PW6. Consequently, this Court finds that the trial court did not fall into error when it found that the fire was as a result of an electric fault and the Appellant was the one to blame.”
11. The Appellant submitted that the trial magistrate erroneously shifted the burden of proof to it and relied on David Ogol Alwar -vs- Mary Atieno Adwera & Anor (2021) eKLR where the court stated;
“24. It is noteworthy that the burden of proof always lies with he who alleges and therefore in this case, the burden of proof lay with the Appellant/plaintiff to prove any of the acts of negligence attributed to the Respondents/defendants. One can only prove that another is liable by adducing evidence to that effect or unless the defendant admits liability or the pleaded acts of negligence. The fact of an accident having occurred is not in itself proof of liability.”
12. The Appellant contended that the trial magistrate’s decision against it was as a result of biased assumption and not supported by any evidence presented before him. That he went outside the judicial bounds to engage on speculation without any legal backing. The Appellant cited the case of Rose Wanjiru Njiga -vs- Packson Githongo Njau & Anor (2019) eKLR where the court stated;
“17. Upon my independent evaluation of the evidence on record, I find that the Appellant failed to adduce any evidence to prove negligence on the part of the 1st defendant either as alleged in the plaint or at all.”
13. The Appellant submitted that the trial magistrate failed to consider and sufficiently appreciate its written submissions. That some of the pertinent issues raised therein were; terms of the contract of insurance between the parties, Respondent’s burden of proof on cause and circumstance of the fire, lack of probative value of an unsworn statement whose maker does not testify and the admissibility and probative value of a report and oral evidence by a qualified expert which are not controverted. The Appellant relied on Municipal Council of Thika -vs- Elizabeth Wambui Kamicha (2013) eKLR where the Court of Appeal stated;
“It is the duty of the trial court to consider and evaluate the entire evidence on record and submissions filed by counsel….it was incumbent upon the trial court to consider the submissions as filed by both parties. Failure to consider the Appellants duly filed written submissions was an error of law.”
14. The Appellant submitted that the trial magistrate failed to be guided by the doctrine of stare decisis in his judgment and made biased assumptions without justification. The Appellant relied on Consolata Awino Ogutu -vs- South Nyanza Sugar Co. Ltd (2019) eKLR where the court stated;
“19. The doctrine of stare decisis is a sound doctrine in the legal profession. It breeds consistency in decisions and interpretation of the law. It also aids in building public confidence in the core mandate of the judiciary. A court which is bound by a precedent from a higher court must follow that precedent. That is the doctrine of stare decisis.”
15. The Appellant submitted that the Respondent was not entitled to any of the reliefs sought as they were misconceived principally based on terms/conditions of the policy of insurance. That according to the policy document, any compensation due would be the market value of the vehicle immediately before the loss and not the insured value. That it was the Respondent’s duty to obtain the current market value of the insured vehicle each year. That the policy cover commenced in 2014 and would therefore have depreciated in 2016. That instead of reaching such a determination, the trial magistrate travelled outside the pleadings to engage in speculations which favored the Respondent.
16. The Appellant submitted that if the Respondent had proved his case, he would have been entitled to only the market value of the motor vehicle immediately before the loss less the salvage value. That the testimony of DW1 was that the Appellant did not take possession of the salvage because they repudiated the claim and if it was missing where the Respondent left it, then it would mean that the Respondent himself collected it.
17. The Appellant submitted that the policy of insurance expressly excluded consequential loss and as such, the alleged loss of user would not have been awarded in any event. That no tangible proof in form of books of accounts, bank statement or receipts were produced to confirm the alleged loss of user. Further, it submitted that loss of user falls under special damages which must be strictly proved. The Appellant placed reliance on Total (Kenya) Ltd Formally Caltex Oil (Kenya) Ltd -vs-Janevams Ltd [2015] eKLR where the court stated;
“From the judgment, the Respondent produced proforma invoices in support of the claims for the retained petrol station equipment. A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt and as such cannot attest to the existence of or acquisition of the goods. We consider that a proforma invoice was not satisfactory proof of the Respondent’s loss or the replacement value of the Respondent’s equipment and the learned judge misdirected himself in finding that the proforma invoices were sufficient proof of special damages for the Respondent’s equipment supposedly withheld by the Appellant.”
18. The Appellant submitted that if the Respondent had succeeded to get any awards, the interest on the awards would have been awarded from the date of judgment delivery and not before.
Submissions by the Respondent
19. The Respondent identified the following to be the issues for determination;
a. Whether the trial court erred in law and fact on the issue of burden of proof.
b. Whether the trial court disregarded the evidence by the Appellant’s expert witness.
c. Whether the trial court failed to be bound by the doctrine of stare decisis.
d. Whether the Respondent was entitled to the damages as awarded by the trial court.
20. As to whether the trial court erred on the issue of burden of proof, the Respondent relied on Section 109 of the Evidence Act for the submission that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
21. The Respondent submitted that in order to prove that the fire which engulfed his motor vehicle was a result of an electrical fault, he produced, as exhibits, a Police Abstract, Parity Loss Assessors Supplementary Report dated 30th November 2016 and the two Statements by the driver. That from the police abstract, it is evident that the incident was reported at Salama Police Station the same day it occurred and the cause of the damage is also indicated.
22. He submitted that the Parity Loss Assessors Supplementary Report was prepared at the Appellant’s request and is addressed to the Appellant’s Claims Manager. That the investigator established that whereas the trailer had been fitted with new air/pressure/electrical connections, its connecting end to the trailer showed signs of rust/fire damage. That according to the same document, the investigator also confirmed that the fire incident was recorded in the fire incident register at Mavoko Sub-County Fire Brigade Office.
23. He submitted that according to the driver’s statement, the driver observed smoke in the cabin whereupon he hurriedly pulled the handbrake and jumped out as fire had already erupted. That he tried to put out the fire with the help of well-wishers but they failed and the cabin was completely burnt by the time the firefighter arrived. Consequently, he submitted that on a balance of probabilities, he had proved that the fire was not caused by any wrongdoing. He urged the court to note from the driver’s statement that the driver had been driving for many hours and it is therefore not inconceivable that an electrical error occurred and caused the fire.
24. In answer to the Appellant’s argument that he (Respondent) failed to avail his own expert report, he submitted that the Appellant denied him access to the salvaged motor vehicle and the same is evident from the letter from Busy Angels Investment dated 22/06/ 2017. That he also reiterated the same sentiments during the hearing of the case and has urged this court to note that there was an initial report dated 26/08/2016 prepared by the same Parity Loss Assessors which the Appellant declined to avail to him. He submitted that the existence of an initial report was confirmed by Safety Surveyor’s Ltd Report dated 12/09/2017.
25. He submitted that it is feasible to presume that the Appellant concealed information which may not have been favorable to their assertions of arson. Relying on Article 35(1) (b) of the Constitution of Kenya, 2010, he submitted that every citizen has the right to access information held by another person and required for the exercise or protection of any right. He contended that the actions by the Appellant were not only questionable but also contrary to the Constitution.
26. He submitted that from the driver’s statement, police abstract and the Parity Loss Assessors Supplementary Report, it is evident that the police and firefighters came to the scene of the fire and no one was ever charged with the offence of arson contrary to section 332(a) of the Penal Code.
27. In answer to the Appellant’s argument that the trial court should not have relied upon the statements by the driver because he was not called as a witness, he relied on Section 35 of the Evidence Act for the submission that, with respect to admissibility of documentary evidence as to facts in issue, the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
28. He submitted that he testified to the effect that the driver was no longer his employee and was therefore unable to secure his attendance. It was also his submission that the Appellant never disputed the driver’s statements and also produced the driver’s statement as part of their evidence. Further, he submitted that no objection was raised opposing the production of the statements during the hearing.
29. He submitted that the Appellant equally had the evidential burden of proving that the fire was caused by arson as outlined in Section 109 and 112 of the Evidence Act. That the Appellant wanted the court to believe in the existence of arson and therefore the burden of proving it was upon them which they failed to do. He relied on Sambayon Ole Semera -vs- Kalka Flowers Limited & another [2021] eKLR where the court held as follows: -
“Section 109 of the Act provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. In that case, the 1st defendant wanted the court to believe that the plaintiff donated the power to Halai which the plaintiff denied. The burden of proof, therefore, shifted to the 1st defendant on this issue. The fact that evidential burden of proof can shift depending on the circumstance of the case, was stated by the Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR…”
30. In view of the foregoing, he submitted that he satisfied his legal and evidential burden of proof in accordance with the Evidence Act and the Appellant cannot claim that the trial court erred in its determination on the burden of proof.
31. On the issue of whether the trial court disregarded the evidence by the Appellant’s expert witness, the Respondent submitted that the contents of Safety Surveyors Ltd Report were rightly rejected by the trial magistrate for the following reasons;
a. The report was prepared more than 1 year 2 months after the accident which occurred on 27/05/ 2016. The date of the visit indicated in the report is 22/08/2017 which is when ash samples were also collected. It would be impossible for the conditions of the burnt vehicle or ash to remain the same after such a long period of time.
b. The vehicle which the investigators examined did not have any number plates as evidenced by the images and evidence of DW2.
c. The Respondent was not present when the investigators visited the yard where the Appellant was keeping the salvage vehicle as confirmed by DW 2.
d. DW 2 was uncertain about the identification of the motor vehicle.
e. DW 2 did not know who took the ash allegedly collected from the unmarked vehicle to the Government Chemist.
f. The vehicle from which DW 2 obtained the ash sample had been interfered with and pilfered as is evident from the Safety Surveyors Ltd report.
32. He submitted that the report by Safety Surveyors Ltd Report is inconclusive and has numerous loopholes. That even the investigator DW 2 was not sure whether his report was on the subject matter herein and no one was present with him when he conducted the investigation. The Respondent contended that there was no certainty that the ash sample was not tampered with considering that the motor vehicle had already been pilfered for more than a year.
33. He submitted that the Certificate of Analysis by the Government Chemist enclosed in the report should not be relied upon because it is not the original report and its production did not conform with Section 35 (1) of the Evidence Act. That it should be considered as a mere statement with no probative value. He relied on Christopher Ndaru Kagina -vs- Esther Mbandi Kagina & Another [2016] eKLR where the court stated;
“The duty of an expert witness is to provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise. This is a duty that is owed to the court and overrides any obligation to the party from whom the expert is receiving instructions.
Under the common law, for expert opinion to be admissible it must be able to provide the court with information which is likely to be outside the court’s knowledge and experience, but it must also be evidence which gives the court the help it needs in forming its conclusions. The role of experts is to give their opinion based on analysis of the available evidence. The court is not bound by that opinion, but it can take into consideration in determining the facts in issue. Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then rigidly judged with a mathematical precision.
Secondly, a Judge must not consider expert evidence in a vacuum. It should therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence…”
34. As to whether the court failed to be bound by the doctrine of stare decisis, he submitted that the 36-page judgment was well-thought out and the trial magistrate fulfilled his obligation by examining all the issues before him, analyzing precedent and reaching a decision that was well founded in law. He relied on Mohamed Abushiri Mukullu -vs- Minister for Lands and Settlement & 6 others [2015] eKLR where the court of appeal held as follows: -
“The principle of stare decisis requires that, although not bound to do so, the court should follow a decision of a judge of equal jurisdiction unless the decision appears to be clearly wrong. In its vertical application, a court is bound by the decisions of a court superior to it. Horizontally, while it may be desired for the sake of certainty and consistency that the court does not deviate from decisions of the courts of the same rank, decisions by courts of concurrent jurisdiction are only of persuasive nature and cannot bind the court.”
35. He contended that the Appellant has not made any reference as to how the learned trial magistrate failed to be guided by the principle of stare decisis and that just because the determination does not favor the Appellant does not mean that the trial magistrate failed to be guided by the principle.
36. As to whether he was entitled to the damages awarded by the trial court, he submitted that it is not in dispute that he had an insurance policy with the Appellant and is entitled to be compensated because the fire was accidental. That the incident falls within the definition of ‘accident’ in the policy document and loss or damage to the vehicle is covered under the policy.
37. With respect to compensation upon total loss, he submitted that according to the terms of the policy document, the issue of market value was purely advisory and not part of the policy. That the terms also indicate that the insured would be entitled to recover the value subject to the estimate stated in the schedule. Consequently, he submitted that the issue of market value is a non-issue and the Appellant should compensate him the value of the vehicle of Kshs.2, 000,000/= as evident from the schedule which was part of the policy. Further, he contended that the Appellant did not provide any alternative information on the market value of the motor vehicle and as such it should pay the amount as per the schedule. He relied on Jackson Mwabili -vs- Peterson Mateli [2020] eKLR where the Learned Judge relied on Samuel Kariuki Nyangoti -vs- Johaan Distelberger where the Court of Appeal stated;
“The damages claimed by the Appellant were in the nature of pecuniary loss which the law does not presume to be the direct, natural or probable consequence of the accident since it is subject of ascertainment by court through evidence and the application of the law relating to the measure of damages. In personal injury cases, the loss of busi
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