(Being an Appeal from the judgment and decree of Hon. M. Kivuti (SRM) in Baricho Magistrates Court Civil Suit No. 47 of 2017 delivered on 20/12/2018)
JUDGMENT
1. The appeal herein is on the issue of the proof of the claim for material damage only. It arises from a decree of a judgment delivered by the trial court on 20/12/2018 dismissing the appellant’s claim for material damage for reasons that the cost of repairs had not been proved by production of a receipt to support the same.
2. The trial court found that there was an accident involving the appellant’s motor vehicle registration number KAY 062Q Mitsubishi Pajero owned and driven by the appellant and motor vehicle registration number KBQ 408E Toyota van cargo owned by the respondent on 10/10/2016 at around 3.00 p.m. along the Karatina-Sagana road near Kibirigwi health centre. The Toyota van cargo hit the Mitsubishi Pajero from behind causing it damage. After investigations the driver of the Toyota van was blamed for the accident.
3. In his plaint the appellant claimed for KShs 252,880/= as the cost of repairs for his vehicle. The trial court found that he had proved that the defendant was liable for the accident and awarded him special damages of KShs 6,000/= as assessment fee and KShs 550/= for copy of records for motor vehicle registration number KBQ 408E.
4. The appellant gave evidence at the trial as PW 3 and on the issue of quantum he said that he repaired his vehicle at a cost of KShs 275,000/= but he did not produce any receipt in support of that claim.
5. The appellant also called a police officer PW 1, CIP John Kamau of Sagana police station who testified that the accident had been reported at the police station and after investigations the driver of the Toyota van cargo was blamed for the accident.
6. The appellant also called PW 2, Gitari Joseph Njiru, a motor vehicle assessor from Real Motors Assessors company who assessed the damage to the appellant’s vehicle and prepared a report. He estimated the cost of repairs to be KShs 252,880/=, VAT inclusive. He was paid for his services and he produced a receipt in support of the payment as well as payment for his court attendance.
7. The trial court however found that the appellant had failed to prove that he had repaired his vehicle because he did not produce any receipt in support of the amount he allegedly incurred for the repairs.
8. The appellant was dissatisfied with that decision and now appeals to this court through a memorandum dated 15/1/2019. The grounds are that.
a. the learned trial magistrate erred in law and in fact in failing to award special damages of KShs 252,880/= which were pleaded and proved for the cost of repairs of the damaged motor vehicle.
b. the learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions on the issue of special damages incurred.
c. the learned trial magistrate erred in law and in fact by failing to appreciate the law on special damages in so far as loss and/or damage to property is concerned.
d. the learned trial magistrate misdirected herself in law and in fact by failing to consider the evidence adduced as to the damage of the motor vehicle and the cost of repair which evidence was unchallenged and uncontroverted.
9. The appellant therefore prays to this court to allow the appeal, set aside the trial court’s decision on award of special damages and substitute it with a higher award as pleaded in the plaint or any higher sum as this court may deem fair and just.
10. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
11. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 that on a first appeal from the High Court to the Court of Appeal:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. Learned counsel for the appellant urged all the grounds of appeal together.
Analysis and Determination
13. I find that there is only one issue put up in arguments by learned counsels for both parties which is whether the learned trial court in finding that the appellant in failing to produce a receipt for payment of the cost of repairs of his vehicle, special damages in the nature of material damage had not been strictly proved and therefore not awardable by the trial court.
14. There is undisputed evidence from the appellant that he paid for the cost of repairs of his vehicle albeit more than what he pleaded. It is also undisputed that he did not produce a receipt to support the claim that he had paid for the repairs.
15. Learned counsel for the appellant takes the position that a material damage claim is founded on the principle of restitutio in integrum that is, the plaintiff should be restored to the same position as he would have been had the damage to his vehicle not occurred. That the appellant need not prove that the property was repaired leave alone that payment for the repairs was made. Learned counsel for the appellant relied on the Court of Appeal decision in Nkuene Dairy Farmers Co-op Society Ltd & Another vs. Ngacha Ndeiya [2010] eKLR, for the position that a plaintiff does not have to produce receipts to prove the cost of repairs and a report by a motor vehicle assessor indicating the costs of restoring a damaged vehicle to a condition close to what it used to be prior to the accident is sufficient.
16. On his part, learned counsel for the respondent took the position that a claim for special damages must be strictly proved by production of receipts. Learned counsel for the respondents relies on the case of Wilson Nyamai Ndeto & another v China Wu Yi Limited & another [2017] KEHC 3095 (KLR) which however is distinguishable from the present one as the claim therein was not for material damage. The other two cases were on material damage and the courts denied the claim for material damage for failure to produce receipts in support. The cases are Lawrence Maina Gatiga & another v Daniel Wachira Karitu [2014] KEELRC 475 (KLR) and Kabir Mohamed Farouk v Postal Corporation of Kenya [2018] eKLR both decided by the High Court.
17. While undertaking the task of examining, reviewing and re-evaluating the evidence and the findings of the trial court, this court is alive to the general rule enunciated in the case of Makube v Nyamiro [1983] KLR 403, where the Court of Appeal stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
18. The most recent position on this issue is found in the Court of Appeal decision in the case of Bahari (T) Company Limited v Alibhai Ramji Investment Limited [2023] KECA 1284 (KLR)
“A special damages claim must be specifically pleaded and specifically proved. Special damages in material damages claim needed not be shown to have been incurred, and therefore there was no need to produce payment receipts to support the claim. The claimant was only required to show the extent of the damage and what it would cost to restore the damaged item. The respondent’s claim for cost of repairs was a special damage claim in the form of material damage. The general principle in assessing of damages was restitution in integrum. All the respondent was required to prove was the extent of the damage to the suit premises and what it would cost to repair it without necessarily proving that, the repairs were actually done and paid for. The High Court was therefore right to find that the receipts of payment for the repairs was not required as proof of expenses incurred for repair works, and that the Assessors Report by Dejfloc Investment coupled with the invoices was sufficient proof of its claim.”
19. Following this decision, I find that the appellant did not have to produce receipts to support his claim that he had paid for the repairs to his vehicle in order to be awarded compensation. There was undisputed evidence that his motor vehicle was damaged and an estimate of what it would cost to repair it was given by the motor vehicle assessor. That was evidence sufficient to award him compensation in order to put him back in the position he was before the damage arising from the accident. Thus, the argument by learned counsel for the respondent that an assessment report does not amount to strict proof that the sums in question were indeed spent by the appellant and therefore not payable is clearly untenable.
20. For the foregoing reasons, I find that the learned trial magistrate in arriving at her decision to dismiss the appellant’s claim for compensation for the material damage caused to his vehicle was in error.
21. Consequently, that decision has to be and is hereby set aside and substituted with a finding that the appellant proved his claim for material damage was in error..
22. The appeal is allowed and the learned trial magistrate’s judgment dismissing the appellant’s claim for compensation for material damage is substituted with a finding that the appellant proved his claim and is awarded the sum of KShs 252,430/=. The award for assessor’s report and copy of motor vehicle record remain as awarded by the trial court.
23. The appellant shall have the costs of this appeal.
24. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 28th of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gichimu for Appellant.
Nafula h/b for Otieno for the Respondent.
Job Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
JUDGMENT
1. The appeal herein is on the issue of the proof of the claim for material damage only. It arises from a decree of a judgment delivered by the trial court on 20/12/2018 dismissing the appellant’s claim for material damage for reasons that the cost of repairs had not been proved by production of a receipt to support the same.
2. The trial court found that there was an accident involving the appellant’s motor vehicle registration number KAY 062Q Mitsubishi Pajero owned and driven by the appellant and motor vehicle registration number KBQ 408E Toyota van cargo owned by the respondent on 10/10/2016 at around 3.00 p.m. along the Karatina-Sagana road near Kibirigwi health centre. The Toyota van cargo hit the Mitsubishi Pajero from behind causing it damage. After investigations the driver of the Toyota van was blamed for the accident.
3. In his plaint the appellant claimed for KShs 252,880/= as the cost of repairs for his vehicle. The trial court found that he had proved that the defendant was liable for the accident and awarded him special damages of KShs 6,000/= as assessment fee and KShs 550/= for copy of records for motor vehicle registration number KBQ 408E.
4. The appellant gave evidence at the trial as PW 3 and on the issue of quantum he said that he repaired his vehicle at a cost of KShs 275,000/= but he did not produce any receipt in support of that claim.
5. The appellant also called a police officer PW 1, CIP John Kamau of Sagana police station who testified that the accident had been reported at the police station and after investigations the driver of the Toyota van cargo was blamed for the accident.
6. The appellant also called PW 2, Gitari Joseph Njiru, a motor vehicle assessor from Real Motors Assessors company who assessed the damage to the appellant’s vehicle and prepared a report. He estimated the cost of repairs to be KShs 252,880/=, VAT inclusive. He was paid for his services and he produced a receipt in support of the payment as well as payment for his court attendance.
7. The trial court however found that the appellant had failed to prove that he had repaired his vehicle because he did not produce any receipt in support of the amount he allegedly incurred for the repairs.
8. The appellant was dissatisfied with that decision and now appeals to this court through a memorandum dated 15/1/2019. The grounds are that.
a. the learned trial magistrate erred in law and in fact in failing to award special damages of KShs 252,880/= which were pleaded and proved for the cost of repairs of the damaged motor vehicle.
b. the learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions on the issue of special damages incurred.
c. the learned trial magistrate erred in law and in fact by failing to appreciate the law on special damages in so far as loss and/or damage to property is concerned.
d. the learned trial magistrate misdirected herself in law and in fact by failing to consider the evidence adduced as to the damage of the motor vehicle and the cost of repair which evidence was unchallenged and uncontroverted.
9. The appellant therefore prays to this court to allow the appeal, set aside the trial court’s decision on award of special damages and substitute it with a higher award as pleaded in the plaint or any higher sum as this court may deem fair and just.
10. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
11. This being a first appeal, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 that on a first appeal from the High Court to the Court of Appeal:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
12. Learned counsel for the appellant urged all the grounds of appeal together.
Analysis and Determination
13. I find that there is only one issue put up in arguments by learned counsels for both parties which is whether the learned trial court in finding that the appellant in failing to produce a receipt for payment of the cost of repairs of his vehicle, special damages in the nature of material damage had not been strictly proved and therefore not awardable by the trial court.
14. There is undisputed evidence from the appellant that he paid for the cost of repairs of his vehicle albeit more than what he pleaded. It is also undisputed that he did not produce a receipt to support the claim that he had paid for the repairs.
15. Learned counsel for the appellant takes the position that a material damage claim is founded on the principle of restitutio in integrum that is, the plaintiff should be restored to the same position as he would have been had the damage to his vehicle not occurred. That the appellant need not prove that the property was repaired leave alone that payment for the repairs was made. Learned counsel for the appellant relied on the Court of Appeal decision in Nkuene Dairy Farmers Co-op Society Ltd & Another vs. Ngacha Ndeiya [2010] eKLR, for the position that a plaintiff does not have to produce receipts to prove the cost of repairs and a report by a motor vehicle assessor indicating the costs of restoring a damaged vehicle to a condition close to what it used to be prior to the accident is sufficient.
16. On his part, learned counsel for the respondent took the position that a claim for special damages must be strictly proved by production of receipts. Learned counsel for the respondents relies on the case of Wilson Nyamai Ndeto & another v China Wu Yi Limited & another [2017] KEHC 3095 (KLR) which however is distinguishable from the present one as the claim therein was not for material damage. The other two cases were on material damage and the courts denied the claim for material damage for failure to produce receipts in support. The cases are Lawrence Maina Gatiga & another v Daniel Wachira Karitu [2014] KEELRC 475 (KLR) and Kabir Mohamed Farouk v Postal Corporation of Kenya [2018] eKLR both decided by the High Court.
17. While undertaking the task of examining, reviewing and re-evaluating the evidence and the findings of the trial court, this court is alive to the general rule enunciated in the case of Makube v Nyamiro [1983] KLR 403, where the Court of Appeal stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
18. The most recent position on this issue is found in the Court of Appeal decision in the case of Bahari (T) Company Limited v Alibhai Ramji Investment Limited [2023] KECA 1284 (KLR)
“A special damages claim must be specifically pleaded and specifically proved. Special damages in material damages claim needed not be shown to have been incurred, and therefore there was no need to produce payment receipts to support the claim. The claimant was only required to show the extent of the damage and what it would cost to restore the damaged item. The respondent’s claim for cost of repairs was a special damage claim in the form of material damage. The general principle in assessing of damages was restitution in integrum. All the respondent was required to prove was the extent of the damage to the suit premises and what it would cost to repair it without necessarily proving that, the repairs were actually done and paid for. The High Court was therefore right to find that the receipts of payment for the repairs was not required as proof of expenses incurred for repair works, and that the Assessors Report by Dejfloc Investment coupled with the invoices was sufficient proof of its claim.”
19. Following this decision, I find that the appellant did not have to produce receipts to support his claim that he had paid for the repairs to his vehicle in order to be awarded compensation. There was undisputed evidence that his motor vehicle was damaged and an estimate of what it would cost to repair it was given by the motor vehicle assessor. That was evidence sufficient to award him compensation in order to put him back in the position he was before the damage arising from the accident. Thus, the argument by learned counsel for the respondent that an assessment report does not amount to strict proof that the sums in question were indeed spent by the appellant and therefore not payable is clearly untenable.
20. For the foregoing reasons, I find that the learned trial magistrate in arriving at her decision to dismiss the appellant’s claim for compensation for the material damage caused to his vehicle was in error.
21. Consequently, that decision has to be and is hereby set aside and substituted with a finding that the appellant proved his claim for material damage was in error..
22. The appeal is allowed and the learned trial magistrate’s judgment dismissing the appellant’s claim for compensation for material damage is substituted with a finding that the appellant proved his claim and is awarded the sum of KShs 252,430/=. The award for assessor’s report and copy of motor vehicle record remain as awarded by the trial court.
23. The appellant shall have the costs of this appeal.
24. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 28th of May 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Gichimu for Appellant.
Nafula h/b for Otieno for the Respondent.
Job Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE