' ''
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL SUIT. E001 OF 2022
HORIZON CARGO LIMITED ……………….....…. PLAINTIFF
-VERSUS-
TUFFSTEEL LIMITED ………………………………...1ST DEFENDANT
VOLCANO HOLDINGS LIMITED …………….……. 2ND DEFENDANT
JUDGMENT
1. In the suit filed on 13/1/2022 - the plaintiff Horizon Cargo Ltd has sued the defendants Tuffsteel Limited (1st ) & Volcano Holdings Ltd(2nd ) defendant seeking judgement against them in the following terms: -
1) Damages of Kshs. 30,052,066/90
2) Costs of the suit
3) Interest of on (a) and (b) from date of filing to date of payment
4) Any other relief deemed fit
2. According to the plaintiff it was at all material times the registered owner of motor vehicle registration No. KBV 440Y/Ze 7245(KBV), the 1st defendant was registered owner of motor vehicle no. KBZ 328X/ZG 0547, (KBZ) and the 3rd defendant - the registered owner of motor vehicle registration no. KBR 265R ZD 7777(KBR).
3. The plaintiff’s case is that on 26/4/2019 a road traffic accident occurred along the Nairobi Mombasa highway as a result of which there was a collision between motor vehicle KBZ and KBR, whereby KBZ lost control, rammed into plaintiff’s KBV causing it extensive damage and causing injury to the plaintiff’s driver.
4. The plaintiff’s case is that on that day its motor vehicle KBV was being driven from Mombasa to Nairobi. The 2nd defendant’s motor vehicle KBR was just ahead of the plaintiff’s. At Uwanja wa Oria area in Mtito Andei, the plaintiff’s driver found a motor vehicle parked half in, halfway out of the road – motor vehicles had stopped to wait for the Nairobi/Mombasa lane to open up. However, KBR did not stop but pulled to right trying to overtake - and came right into the oncoming KBZ, a collision ensued. KBZ lost control, rammed into KBV.
It is the plaintiff’s case the blame was on both KBR and KBZ for the accident setting down the particulars of negligence at paragraph 12 of the plaint.
5. The plaintiff averred that due to the negligence of both drivers – its motor vehicle sustained extensive damage as assessed by Directive Motor Assessors- total restoration cost coming to Kshs.2,432,982/03. The particulars of damage are set out at paragraph 14 (a) to (cc)
That the pre-accident value of the motor was Kshs. 2.6m, post-accident selvage was valued at Ksh 1.5m
6. At paragraph 17 of the plaint, the plaintiff set out the extra costs incurred due to the road traffic accident - particularized and totaling to Kshs. 257,300.
7. The plaintiff also sought loss suffered as loss of user her 940 days from 27/4/2019 to date of filing the suit at Kshs. 31,696/56 per day total- Kshs. 29,794,766/00 bringing the total loss suffered by the plaintiff to Kshs. 30,052,066/40.
8. Annexed to the plaint are the supporting documents for the claim.
9. In the defence filed on 4/3/2022 the 1st defendant denied that the parties were the registered owners of the respective motor vehicle as pleaded by plaintiff and put the plaintiff to strict proof thereof.
The 1st defendant denies the particulars of the accident as pleaded by the plaintiff but admits that the plaintiff’s driver did find a parked broken-down motor vehicle at Uwanja wa Kiio Oria. It is also admitted that KBR pulled to the right to overtake the stalled motor vehicle- but it is denied that KBZ was speeding down Nairobi/Mombasa – but plaintiff is put to strict proof of the resultant collision/damages to KBV/ its driver.
10. The 1st defendant, without prejudice avers that the accident was out of negligence of plaintiff and 2nd defendant drivers.
The particulars of negligence of both drivers are set out at para 13 of the 1st defendant’s statement of defence.
Further, without prejudice that the driver of KBZ did everything to avoid the accident; that the 2nd defendant was found to blame by the investigatory officer that Res ipsa loquitur is not applicable. All particulars of loss and damage are denied and plaintiff put to strict proof thereof.
At paragraph 25 of the 1st defendant’s defence the jurisdiction of the court is denied.
The 1st defendant prays that the suit be dismissed with cost/that a substantial finding of contributory negligence be made against the plaintiff and 2nd defendant.
11. The 2nd defendant filed defence dated 22/2/2022 and denies all the averments in the plaint, particulars of negligence except the descriptive part. It is contended at paragraph 13 of the 2nd defendant’s defence that of any road traffic accident occurred it was “ wholly caused/and or materially contributed to by the gross negligence of owners/drivers of motor vehicle registration KBZ and KBV”
The particulars of negligence of each driver are set out under para 16.
12. The 2nd defendant puts the plaintiff to strict proof of all the particulars of value of the motor vehicle, loss and damage, costs claimed in the plaint.
13. The 2nd defendant denies any liability, vicarious or otherwise. The jurisdiction of the court is admitted. The prayer is that the plaintiff, suit be dismissed with costs.
14. The plaintiff filed a reply to both statements of defence on 1/4/2022. The plaintiff joins issues with the defendants, reiterates the averments in the plaint. The plaintiff avers that there are police abstracts, proof of the accident and liability. The plaintiff denies every allegation of liability, negligence of any kind, and put the defendants to strict proof thereof.
15. The plaintiff reiterates that res ipsa loquitur is applicable that this court has jurisdiction and that the two statements of defence be dismissed with costs.
16. The plaintiff set out the following issues for determination filed on 1/4/2022
1. Whether there was an accident on 26th April, 2019 at Uwanja wa Oria area in Mtito Andei occasioned by motor vehicle registration numbers KBZ 328X/ZG0547 and KBR 265R/ZD 7777.
2. Whether motor vehicle registration numbers KBZ 328X/ZG 0547 and KBR 265R/ZD 7777 were to blame for the accident.
3. Whether the Plaintiff is the registered owner of motor vehicle registration number KBV 440Y/ZE 7245;
4. Whether motor vehicle registration number KBV 440y/ZE 7245 belonging to the plaintiff was extensively damaged during the quoted accident.
5. Whether there has been loss of user occasioned by the quoted accident and the extensive damage caused to the plaintiff.
6. Whether the defendants are vicariously liable for the accident.
7. Whether the plaintiff is entitled to the reliefs sought.
17. On 1/6/2022 the 2nd defendant filed “notice of claim against co-defendant” under order 1 Rule 24 Civil Procedure Rule stating that there was need to determine liability as between the plaintiff and the 2nd defendant, and also between the defendants.
18. On 22/4/2024 the following consent was entered into among the parties.
By consent
1. The suit against the 1st defendant is marked as withdrawn with no orders as to costs.
2. Judgment on liability is entered against the 2nd defendant ratio of 17:83 in favour of the plaintiff.
3. Partial judgment on the loss of motor vehicle of Kshs. 1,302,300 entered against the 2nd defendant.
4. The plaintiff and 2nd defendant to agree on the loss of user, if no agreement is reached submissions be filed on this within 30 days hereof.
5. The plaintiff’s index of documents to be admitted in evidence without calling the maker.
6. The plaintiff to have the costs of the suit.
7. The sum of Kshs. 1,302,300 as agreed between the parties results from the following tabulation:-
i. Pre-accident value - Kshs. 2.6 million
ii. Less salvage Kshs.1.5 million net - Kshs. 1.1 million
iii. Plus Towing charges Kshs. 145,000
iv. Plus Assessment costs Kshs. 23,200
v. Plus Travelling and accommodation kshs. 33,000
vi. Plus searches Kshs. 1,100
Total --------------------------------------------Kshs. 1,302,300
19. Parties agreed that should they not agree on loss of user and interest payable they would file submissions.
20. Parties filed submissions which I have considered.
21. There are only 2 issues :-
i. Assessment on loss of user
ii. When interest should begin to run.
22. Both issues are highly contested.
23. The plaintiff’s 1st position is that loss of user is a claim in general damages and relies on Jebrock Sugar Cane Growers Co. ltd Vs Jackson Chege Busi Civil Appeal No. 10/91 (Kisumu) unreported where it is submitted that the court is allowing a claim for general damages for loss of user relied on Page 226 paragraph 394 of Halsbury’s Laws of English Vol 11 3rd Editions
“The fact that damages are difficult to estimate and cannot be assessed with certainty or precision does not relieve the wrong doer of the necessity of paying damages for his breach of duty and is no ground for awarding only normal damages.”
The Authors continues to say in the same passage thus:
“Where it is established, however, 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. Thus, the court or a jury doing the best that can be done with insufficient material may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies even to the extent of making a pure guess…”
See also the case of Martin Gicimu Kamanga v Board of Governors, St. Anne’s Junior School, Lubao [2021] eKLR
24. The plaintiff submits further that “even if the court was to find that a claim for loss of user is a claim in special damages we have pleaded special damages and proved the same strictly”
25. It is submitted that the plaintiff has established that motor vehicle KBV was damaged beyond repair, that it was used as a commercial vehicle and that there was daily/monthly income from the said motor vehicle.
26. It is not disputed that the motor vehicle was damaged beyond repair or that it was a commercial motor vehicle, what is disputed is whether the plaintiff has proved the loss of user.
27. The plaintiff refers the court to “pg 42 to 214 showing various receipts and goods delivery details” pg; 40 - 41 showing income transaction details for January, 2019 to April, 2019.
That the income transaction details were produced by consent, hence should be considered proof of the income - at Kshs. 31,696/56 per day, 6 days a week at Kshs.760,704 pm
28. The plaintiff submits that it ought to be allowed loss of user for 2 years i.e 24 months and relies on:-
1. David Maina V Mary Wanjiku Wanyie and another [2020] eKLR where the court awarded 2 years.
2. Samuel Gichuhi Maina & Another t/a Sawa Saw Parts and Allied Products Vs UAP Insurance Co. Ltd [2020] & eKLR where 1 years was awarded.
The plaintiff seeks a sum of Kshs. 18,256,896 at 80% = 14,605,516.
29. The 2nd defendant submits that the plaintiff has simply thrown a figure at the court - which figure is not supported by evidence of operational costs, net income, taxes paid /bank accounts or any other records.
30. It is further submitted that once the motor vehicle is declared a complete write off – there can be no claim for loss of user as that would amount to a double compensation.
The defendant cites:-
1) Eliud Maniafu Sabini Vs Kenya Commercial Bank Civil Case No. 37/2002
“Finally, although it may be cold comfort to the plaintiff, I desire to state that I am not holding that the plaintiff did not suffer any consequential loss for non-user of his motor vehicle (the evidence is abundant that he did): what I am holding is that he has not proved the exact quantum of such loss to the degree of proof required of special damages. In the result I must reject his claim for loss of income.”
2) In the High Court at Eldorent – Civil Appeal 109 of 2005 Miwa Hauliers & Moses Shikhokha Vetaba – Vs- Godfrey Auma
Where the plaintiff’s claim for an award for loss of user did not succeed. Hon. Justice M.K Ibrahim ( as he then was) stated the following in his judgment which was delivered on 5th November, 2007.
“In any event, the claim was on the basis that the vehicle was totally written-off. The claim therefore was specific and ascertained once there was total loss of the vehicle. The Plaintiff could only get the value of the vehicle at the time of the accident. To award damages under loss of user will amount to double compensation. There was no consequential damage after the write-off, unless one pleads it and proves it.”
3) In the Court of Appeal at Mombasa - Civil Appeal 119 of 1995 Ryce Motors Limited & Coast Agency – Vs Elias Muroki
Where the court addressed mitigation of loss by the appellant
“In our view, the statement in ANN MORAA’s case that a plaintiff is entitled to wait until he is paid the pre-accident value of his destroyed property does not reflect the correct legal position. The position law is that a man in the position of the respondent must take reasonable steps to mitigate his damages and for this purpose there is no distinction between a damaged and destroyed article.”
31. A perusal of pg. 40 and 41 of the plaintiff’s documents shows a table – for income for 1/1/2019 to 27/4/2019. Column A - says “Invoice” Column G Amount in Kshs, Column H Amount in Kshs.The amounts on both columns are different – but under each month there is a grand total. There is no explanation what this means - what these figures stand for. If the money was paid - no evidence is placed before court-
32. The documents from page 42 – 214 are varied – orders, KRA certificates invoices, payments etc.
33. The Question that arises is : – whose duty was it to analyse these documents and present to court the analysis for the court to see how those documents support the claim of the specified sum claimed?
34. While the plaintiff may have suffered loss – the fact is – the documents were admitted by consent – but the sum was contested. It was upon the plaintiff to distill the mass of paper work and demonstrate to the court how all those documents, produced by consent support the claim for loss of user. In addition the plaintiff cannot run away from the fact that the claim is presented as a special damage claim – hence the standard of proof remains that for – special damage claim. Here, I echo the words of Ringera J (as he then was) in the Eliud Maniafu Sabuni case.
35. In addition , the plaintiff did not address the question – whether the fact that the motor vehicle was declared a complete write off – estopped a claim for loss of user. I note that the plaintiff seeks loss of user from the date of accident to the date the suit was filed. What would be the reasonable explanation for that?
The plaintiff’s argument that the motor vehicle could not be repaired and hence there was loss of user is not tenable. I find myself in agreement with Hon. Justice M.K Ibrahim (as he then was). That the plaintiff could only get the value of the motor vehicle at the time of the accident. Hence it is my finding that the claim for loss of user is not proved and the same is denied.
36. Regarding interest - and when it ought to begin to accrue – I have considered the submissions by each counsel.
37. The claim for interest is on the sum total that includes the value of the motor vehicle and the costs incurred at the time of the accident – these are specific as special damages. The consequence therefor is that the interest will accrue from the date of filing of the matter to the date of payment at court rates
38. The interest applicable is the court rate which is 14%.
39. In the end- the claim for loss of user is denied.
40. The claim for interest is allowed on the sum of Kshs. 1,302,300 at 14% with effect from date of filing of the suit.
41. The plaintiff will have the costs of this suit plus interest.
42. Orders accordingly
Dated, signed and delivered via CTS on 27th October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
'' '
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CIVIL SUIT. E001 OF 2022
HORIZON CARGO LIMITED ……………….....…. PLAINTIFF
-VERSUS-
TUFFSTEEL LIMITED ………………………………...1ST DEFENDANT
VOLCANO HOLDINGS LIMITED …………….……. 2ND DEFENDANT
JUDGMENT
1. In the suit filed on 13/1/2022 - the plaintiff Horizon Cargo Ltd has sued the defendants Tuffsteel Limited (1st ) & Volcano Holdings Ltd(2nd ) defendant seeking judgement against them in the following terms: -
1) Damages of Kshs. 30,052,066/90
2) Costs of the suit
3) Interest of on (a) and (b) from date of filing to date of payment
4) Any other relief deemed fit
2. According to the plaintiff it was at all material times the registered owner of motor vehicle registration No. KBV 440Y/Ze 7245(KBV), the 1st defendant was registered owner of motor vehicle no. KBZ 328X/ZG 0547, (KBZ) and the 3rd defendant - the registered owner of motor vehicle registration no. KBR 265R ZD 7777(KBR).
3. The plaintiff’s case is that on 26/4/2019 a road traffic accident occurred along the Nairobi Mombasa highway as a result of which there was a collision between motor vehicle KBZ and KBR, whereby KBZ lost control, rammed into plaintiff’s KBV causing it extensive damage and causing injury to the plaintiff’s driver.
4. The plaintiff’s case is that on that day its motor vehicle KBV was being driven from Mombasa to Nairobi. The 2nd defendant’s motor vehicle KBR was just ahead of the plaintiff’s. At Uwanja wa Oria area in Mtito Andei, the plaintiff’s driver found a motor vehicle parked half in, halfway out of the road – motor vehicles had stopped to wait for the Nairobi/Mombasa lane to open up. However, KBR did not stop but pulled to right trying to overtake - and came right into the oncoming KBZ, a collision ensued. KBZ lost control, rammed into KBV.
It is the plaintiff’s case the blame was on both KBR and KBZ for the accident setting down the particulars of negligence at paragraph 12 of the plaint.
5. The plaintiff averred that due to the negligence of both drivers – its motor vehicle sustained extensive damage as assessed by Directive Motor Assessors- total restoration cost coming to Kshs.2,432,982/03. The particulars of damage are set out at paragraph 14 (a) to (cc)
That the pre-accident value of the motor was Kshs. 2.6m, post-accident selvage was valued at Ksh 1.5m
6. At paragraph 17 of the plaint, the plaintiff set out the extra costs incurred due to the road traffic accident - particularized and totaling to Kshs. 257,300.
7. The plaintiff also sought loss suffered as loss of user her 940 days from 27/4/2019 to date of filing the suit at Kshs. 31,696/56 per day total- Kshs. 29,794,766/00 bringing the total loss suffered by the plaintiff to Kshs. 30,052,066/40.
8. Annexed to the plaint are the supporting documents for the claim.
9. In the defence filed on 4/3/2022 the 1st defendant denied that the parties were the registered owners of the respective motor vehicle as pleaded by plaintiff and put the plaintiff to strict proof thereof.
The 1st defendant denies the particulars of the accident as pleaded by the plaintiff but admits that the plaintiff’s driver did find a parked broken-down motor vehicle at Uwanja wa Kiio Oria. It is also admitted that KBR pulled to the right to overtake the stalled motor vehicle- but it is denied that KBZ was speeding down Nairobi/Mombasa – but plaintiff is put to strict proof of the resultant collision/damages to KBV/ its driver.
10. The 1st defendant, without prejudice avers that the accident was out of negligence of plaintiff and 2nd defendant drivers.
The particulars of negligence of both drivers are set out at para 13 of the 1st defendant’s statement of defence.
Further, without prejudice that the driver of KBZ did everything to avoid the accident; that the 2nd defendant was found to blame by the investigatory officer that Res ipsa loquitur is not applicable. All particulars of loss and damage are denied and plaintiff put to strict proof thereof.
At paragraph 25 of the 1st defendant’s defence the jurisdiction of the court is denied.
The 1st defendant prays that the suit be dismissed with cost/that a substantial finding of contributory negligence be made against the plaintiff and 2nd defendant.
11. The 2nd defendant filed defence dated 22/2/2022 and denies all the averments in the plaint, particulars of negligence except the descriptive part. It is contended at paragraph 13 of the 2nd defendant’s defence that of any road traffic accident occurred it was “ wholly caused/and or materially contributed to by the gross negligence of owners/drivers of motor vehicle registration KBZ and KBV”
The particulars of negligence of each driver are set out under para 16.
12. The 2nd defendant puts the plaintiff to strict proof of all the particulars of value of the motor vehicle, loss and damage, costs claimed in the plaint.
13. The 2nd defendant denies any liability, vicarious or otherwise. The jurisdiction of the court is admitted. The prayer is that the plaintiff, suit be dismissed with costs.
14. The plaintiff filed a reply to both statements of defence on 1/4/2022. The plaintiff joins issues with the defendants, reiterates the averments in the plaint. The plaintiff avers that there are police abstracts, proof of the accident and liability. The plaintiff denies every allegation of liability, negligence of any kind, and put the defendants to strict proof thereof.
15. The plaintiff reiterates that res ipsa loquitur is applicable that this court has jurisdiction and that the two statements of defence be dismissed with costs.
16. The plaintiff set out the following issues for determination filed on 1/4/2022
1. Whether there was an accident on 26th April, 2019 at Uwanja wa Oria area in Mtito Andei occasioned by motor vehicle registration numbers KBZ 328X/ZG0547 and KBR 265R/ZD 7777.
2. Whether motor vehicle registration numbers KBZ 328X/ZG 0547 and KBR 265R/ZD 7777 were to blame for the accident.
3. Whether the Plaintiff is the registered owner of motor vehicle registration number KBV 440Y/ZE 7245;
4. Whether motor vehicle registration number KBV 440y/ZE 7245 belonging to the plaintiff was extensively damaged during the quoted accident.
5. Whether there has been loss of user occasioned by the quoted accident and the extensive damage caused to the plaintiff.
6. Whether the defendants are vicariously liable for the accident.
7. Whether the plaintiff is entitled to the reliefs sought.
17. On 1/6/2022 the 2nd defendant filed “notice of claim against co-defendant” under order 1 Rule 24 Civil Procedure Rule stating that there was need to determine liability as between the plaintiff and the 2nd defendant, and also between the defendants.
18. On 22/4/2024 the following consent was entered into among the parties.
By consent
1. The suit against the 1st defendant is marked as withdrawn with no orders as to costs.
2. Judgment on liability is entered against the 2nd defendant ratio of 17:83 in favour of the plaintiff.
3. Partial judgment on the loss of motor vehicle of Kshs. 1,302,300 entered against the 2nd defendant.
4. The plaintiff and 2nd defendant to agree on the loss of user, if no agreement is reached submissions be filed on this within 30 days hereof.
5. The plaintiff’s index of documents to be admitted in evidence without calling the maker.
6. The plaintiff to have the costs of the suit.
7. The sum of Kshs. 1,302,300 as agreed between the parties results from the following tabulation:-
i. Pre-accident value - Kshs. 2.6 million
ii. Less salvage Kshs.1.5 million net - Kshs. 1.1 million
iii. Plus Towing charges Kshs. 145,000
iv. Plus Assessment costs Kshs. 23,200
v. Plus Travelling and accommodation kshs. 33,000
vi. Plus searches Kshs. 1,100
Total --------------------------------------------Kshs. 1,302,300
19. Parties agreed that should they not agree on loss of user and interest payable they would file submissions.
20. Parties filed submissions which I have considered.
21. There are only 2 issues :-
i. Assessment on loss of user
ii. When interest should begin to run.
22. Both issues are highly contested.
23. The plaintiff’s 1st position is that loss of user is a claim in general damages and relies on Jebrock Sugar Cane Growers Co. ltd Vs Jackson Chege Busi Civil Appeal No. 10/91 (Kisumu) unreported where it is submitted that the court is allowing a claim for general damages for loss of user relied on Page 226 paragraph 394 of Halsbury’s Laws of English Vol 11 3rd Editions
“The fact that damages are difficult to estimate and cannot be assessed with certainty or precision does not relieve the wrong doer of the necessity of paying damages for his breach of duty and is no ground for awarding only normal damages.”
The Authors continues to say in the same passage thus:
“Where it is established, however, 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. Thus, the court or a jury doing the best that can be done with insufficient material may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies even to the extent of making a pure guess…”
See also the case of Martin Gicimu Kamanga v Board of Governors, St. Anne’s Junior School, Lubao [2021] eKLR
24. The plaintiff submits further that “even if the court was to find that a claim for loss of user is a claim in special damages we have pleaded special damages and proved the same strictly”
25. It is submitted that the plaintiff has established that motor vehicle KBV was damaged beyond repair, that it was used as a commercial vehicle and that there was daily/monthly income from the said motor vehicle.
26. It is not disputed that the motor vehicle was damaged beyond repair or that it was a commercial motor vehicle, what is disputed is whether the plaintiff has proved the loss of user.
27. The plaintiff refers the court to “pg 42 to 214 showing various receipts and goods delivery details” pg; 40 - 41 showing income transaction details for January, 2019 to April, 2019.
That the income transaction details were produced by consent, hence should be considered proof of the income - at Kshs. 31,696/56 per day, 6 days a week at Kshs.760,704 pm
28. The plaintiff submits that it ought to be allowed loss of user for 2 years i.e 24 months and relies on:-
1. David Maina V Mary Wanjiku Wanyie and another [2020] eKLR where the court awarded 2 years.
2. Samuel Gichuhi Maina & Another t/a Sawa Saw Parts and Allied Products Vs UAP Insurance Co. Ltd [2020] & eKLR where 1 years was awarded.
The plaintiff seeks a sum of Kshs. 18,256,896 at 80% = 14,605,516.
29. The 2nd defendant submits that the plaintiff has simply thrown a figure at the court - which figure is not supported by evidence of operational costs, net income, taxes paid /bank accounts or any other records.
30. It is further submitted that once the motor vehicle is declared a complete write off – there can be no claim for loss of user as that would amount to a double compensation.
The defendant cites:-
1) Eliud Maniafu Sabini Vs Kenya Commercial Bank Civil Case No. 37/2002
“Finally, although it may be cold comfort to the plaintiff, I desire to state that I am not holding that the plaintiff did not suffer any consequential loss for non-user of his motor vehicle (the evidence is abundant that he did): what I am holding is that he has not proved the exact quantum of such loss to the degree of proof required of special damages. In the result I must reject his claim for loss of income.”
2) In the High Court at Eldorent – Civil Appeal 109 of 2005 Miwa Hauliers & Moses Shikhokha Vetaba – Vs- Godfrey Auma
Where the plaintiff’s claim for an award for loss of user did not succeed. Hon. Justice M.K Ibrahim ( as he then was) stated the following in his judgment which was delivered on 5th November, 2007.
“In any event, the claim was on the basis that the vehicle was totally written-off. The claim therefore was specific and ascertained once there was total loss of the vehicle. The Plaintiff could only get the value of the vehicle at the time of the accident. To award damages under loss of user will amount to double compensation. There was no consequential damage after the write-off, unless one pleads it and proves it.”
3) In the Court of Appeal at Mombasa - Civil Appeal 119 of 1995 Ryce Motors Limited & Coast Agency – Vs Elias Muroki
Where the court addressed mitigation of loss by the appellant
“In our view, the statement in ANN MORAA’s case that a plaintiff is entitled to wait until he is paid the pre-accident value of his destroyed property does not reflect the correct legal position. The position law is that a man in the position of the respondent must take reasonable steps to mitigate his damages and for this purpose there is no distinction between a damaged and destroyed article.”
31. A perusal of pg. 40 and 41 of the plaintiff’s documents shows a table – for income for 1/1/2019 to 27/4/2019. Column A - says “Invoice” Column G Amount in Kshs, Column H Amount in Kshs.The amounts on both columns are different – but under each month there is a grand total. There is no explanation what this means - what these figures stand for. If the money was paid - no evidence is placed before court-
32. The documents from page 42 – 214 are varied – orders, KRA certificates invoices, payments etc.
33. The Question that arises is : – whose duty was it to analyse these documents and present to court the analysis for the court to see how those documents support the claim of the specified sum claimed?
34. While the plaintiff may have suffered loss – the fact is – the documents were admitted by consent – but the sum was contested. It was upon the plaintiff to distill the mass of paper work and demonstrate to the court how all those documents, produced by consent support the claim for loss of user. In addition the plaintiff cannot run away from the fact that the claim is presented as a special damage claim – hence the standard of proof remains that for – special damage claim. Here, I echo the words of Ringera J (as he then was) in the Eliud Maniafu Sabuni case.
35. In addition , the plaintiff did not address the question – whether the fact that the motor vehicle was declared a complete write off – estopped a claim for loss of user. I note that the plaintiff seeks loss of user from the date of accident to the date the suit was filed. What would be the reasonable explanation for that?
The plaintiff’s argument that the motor vehicle could not be repaired and hence there was loss of user is not tenable. I find myself in agreement with Hon. Justice M.K Ibrahim (as he then was). That the plaintiff could only get the value of the motor vehicle at the time of the accident. Hence it is my finding that the claim for loss of user is not proved and the same is denied.
36. Regarding interest - and when it ought to begin to accrue – I have considered the submissions by each counsel.
37. The claim for interest is on the sum total that includes the value of the motor vehicle and the costs incurred at the time of the accident – these are specific as special damages. The consequence therefor is that the interest will accrue from the date of filing of the matter to the date of payment at court rates
38. The interest applicable is the court rate which is 14%.
39. In the end- the claim for loss of user is denied.
40. The claim for interest is allowed on the sum of Kshs. 1,302,300 at 14% with effect from date of filing of the suit.
41. The plaintiff will have the costs of this suit plus interest.
42. Orders accordingly
Dated, signed and delivered via CTS on 27th October 2025
Mumbua T. Matheka
Judge
Court Assistant - Chrispol
'' '