Introduction
1. This is the first appeal and cross-appeal from the judgment delivered on 16th July 2025 in Mombasa CMCC No. 847 of 2019.
2. The dispute concerns motor vehicle registration number KCA 870S, a Toyota RAV 4, which the Respondent had comprehensively insured with the Appellant at an agreed insured value of Kes 1,800,000/- for the period from 5th June 2017 to 4th June 2018, upon payment of a premium of Kes 54,000/-.
3. On 8th April 2018, during the subsistence of the cover, the vehicle was involved in an accident and, on the Appellant's instructions, was towed to Jaffery Motors Garage, Mombasa, for repairs. It is common ground that repairs were undertaken and that the damage was more extensive than first anticipated, and that, as at the time of the hearing of the suit and the appeal, the vehicle had not been released to the Respondent. This has spanned more than seven years since the accident occurred.
4. The trial court found the Appellant liable for the delay in releasing the vehicle and awarded the Respondent Kes 1,400,000/- as general damages for loss of use, with costs and interest, but did not award the Kes 1,800,000/- claimed by the Respondent as the insured value of the vehicle. Both parties are dissatisfied with this decision to different degrees, hence the present appeal.
Background
5. By a plaint dated 7th June 2019, the Respondent pleaded that she paid the agreed premium for comprehensive cover for the motor vehicle with registration number KCA 870S, a Toyota RAV 4, at an insured value of Kes 1,800,000/-.
6. On or about 8th April 2018, the vehicle was involved in an accident, and she reasonably expected it to be repaired and released by 30th April 2018. She stated that as at the date of filing suit, the vehicle had not been repaired nor released to her. She claimed loss of use at Kes 2,000/- per day from 1st July 2018; and that she was entitled to be paid the insured value of the vehicle, Kes 1,800,000/-, together with general damages for breach of contract.
7. The evidence at trial established the following:
(a). The Appellant's assessor, Kibmatt Loss Assessors (EA) Ltd, inspected the vehicle on 3rd May 2018 and, in a report dated 17th May 2018, assessed repair costs at Kes 692,056/-, estimating ten days for completion, subject to the availability of parts;
(b). A supplementary assessment dated 24th July 2018 revealed further gearbox damage, requiring an additional Kes 229,680/-, bringing the total repair costs to approximately Kes 921,736/-. This sum exceeds 51% of the insured value of Kes 1,800,000;
(c). The gearbox was replaced, and following a re-inspection on 18th December 2018, the Appellant's assessor certified that the vehicle had been satisfactorily repaired and restored to its pre-accident condition;
(d). The Respondent's witness, Jones Ngunzu Mwangangi, gave evidence that the vehicle was tested on three occasions and failed to start;
(e). On 2nd November 2018, the Appellant's officer, Leah Mburu, wrote to the Respondent's agent, acknowledging that the vehicle, though “fully repaired,” would not run “as expected,” expressing regret for the “temporary uncertain situation” and assuring a resolution “of mutual benefit to both parties”; and
(f). the vehicle has remained at the garage to date.
8. The trial court, in its judgment, found that liability for the accident and the obligation to repair were not in issue. The real controversy was the Appellant's failure to authorize the release of the vehicle upon completion of the repairs.
9. All the issues outlined above led the trial court to find that the Respondent was entitled to general damages for loss of use, assessed at Kes 1,400,000, and to award costs and interest. However, it declined to award damages in respect of “the claim for general damages for breach of contract.”
10.The Appellant's central contention, grounded in the decision of David Bagine v Martin Bundi [1997] eKLR, is that loss of user is, by its nature, special damage that must be specifically pleaded and strictly proved. The Respondent, having pleaded Kes 2,000 per day and having admitted at page 206 of the record of Appeal that she had “not produced evidence to that effect,” failed to discharge that burden.
11. The Appellant buttressed its position by relying on the court’s decisions in African Highland Produce Ltd v John Kisorio [2001] eKLR, Thomas Kapombe & Another v Matunda Fruits Bus Services Ltd [2018] eKLR and David Murithi Githaiga v CFC Stanbic Bank Ltd [2019] eKLR. It is further contended that even a properly proved claim for loss of use must, in accordance with the plaintiff's duty to mitigate, be confined to the reasonable period necessary for repairs. These authorities found the reasonable time to be between 15 and 30 days and held that the recoverable sum should not exceed Kes 60,000/-.
12. The Respondent’s cross-appeal is on the ground that the trial court failed to determine the question of the value and compensation for the vehicle, notwithstanding that it was pleaded in paragraphs 11 to 13 of the Plaint, addressed in both witness statements, and canvassed in evidence and submissions; and that it ought to have awarded Kes 1,800,000/-, being the insured value of the motor vehicle.
13. In her submissions, the Respondent contended that, because the final repair estimate of Kes 921,736/- exceeded 50% of the insured value, the vehicle ought to have been treated as a constructive total loss. She further argued that the Appellant's own conduct, including the admission in the email of 2nd November 2018, the failure to issue any release letter, and the continued retention of the vehicle, demonstrated that the vehicle had never in truth been restored to her use. She also contended that the trial court's silence on this squarely pleaded claim was an error warranting correction on appeal. In support of this contention, her counsel cited the case of Mikaal Limited & Another v Attorney General & 2 Others [2024] KECA 358 (KLR) and also Odd Jobs v Mubia [1970] EA 476.
14. On quantum of loss of use, the Respondent supported the trial court's award, relying on the decisions of the court in Samuel Kariuki Nyagoti v Johaan Distelberger [2017] eKLR, Jackson Mwabili v Peterson Mateli [2020] eKLR, Wambua v Patel & Another [1986] KLR 336, Butt v Khan [1981] KLR 349, Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR), and Sanlam General Insurance Co. Ltd v M'Mbura (Civil Appeal E054 & E098 of 2024 (Consolidated)) [2025] KEHC 340 (KLR), to the effect that loss of use of a chattel is a general damages claim, assessable on a balance of probabilities, without the mathematical exactitude required of special damages.
Analysis and Determination
15. As a first appellate court, the court is required to reconsider and re-evaluate the evidence on record, and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. This position is well settled and has been stated in a plethora of decisions of the courts of record. I will cite a few: Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123; Ramji Ratna & Co. Ltd v Wood Products (Kenya) Ltd, Civil Appeal No. 117 of 2001; Hanh v Singh [1985] KLR 716 and Simon Muchemi Atako & Another v Gordon Osore [2013] eKLR.
16. On quantum, in particular, an appellate court will not disturb an award of damages merely because it might itself have arrived at a different figure. Interference is justified only where the trial court proceeded on wrong principles, took into account irrelevant factor(s) or omitted a relevant one, misapprehended the evidence, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate as was held in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia and Another (No. 2) (1982-88) 1 KAR 727 and Butt v Khan [1981] KLR 349.
17. Equally, however, a trial court's failure to determine an issue properly placed before it is an error of law warranting appellate intervention, as held in Mikaal Limited & another v Commissioner of Lands & 2 others [2024] KECA 358 (KLR). A court is expected to pronounce itself on an issue not perfectly captured in the prayers where it is clear from the course of the trial that the parties left it for the court's determination, as held in Odd Jobs v Mubia [1970] EA 476.
Issues for Determination
18. From the Memorandum of Appeal, the Cross-Appeal and submissions filed by the Parties herein, three issues arise for determination:
(i). Whether a claim for loss of use of a motor vehicle is, as a matter of law, confined to special damages requiring strict mathematical proof, or is capable of assessment as general damages;
(ii). Whether, on the evidence, the trial court's award of Kes 1,400,000/- for loss of use was properly arrived at, and if not, what is the appropriate figure; and
(iii). Whether the trial court erred in failing to determine and award the Respondent's claim for Kes 1,800,000/- as the insured value of the vehicle, and if so, whether and to what extent that claim ought now to be allowed.
Analysis of the Issues Arising
Whether a claim for loss of user of a motor vehicle is, as a matter of law, confined to special damages requiring strict mathematical proof, or is capable of assessment as general damages;
19. From the rival submissions and authorities placed before this court, there is clearly an issue as to the award of the claim for loss of use of the Motor vehicle. The decision of the court in David Bagine v Martin Bundi [1997] eKLR held that “damages claimed under the title ‘loss of use’ can only be special damages,” which “can in no circumstances be equated to general damages,” and must accordingly be strictly pleaded and strictly proved, failing which the claim must fail. The same principle informed the approach in Thomas Kapombe & another t/a Kalita Transporters v Matunda Fruits Bus Services Limited [2017] KEHC 295 (KLR) and African Highland Produce Limited v John Kisorio [2001] KECA 364 (KLR); in both decisions the courts nonetheless made modest awards once satisfied some loss had been proved, but confined the recoverable period strictly by reference to the Plaintiff's duty to mitigate.
20. On the other hand, the decision of the Court of Appeal in Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR) held that “...the loss of use of a profit-making chattel such as a lorry or matatu through an accident is similarly a claim in general damages. The standard of proof in such claims is on the balance of probabilities, and the principle of restitutio in integrum is applied in such cases.” This position was echoed in Jackson Mwabili v Peterson Mateli [2020] KEHC 2814 (KLR) and, most pertinently to the facts of this case and in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) where the High Court, dealing with an insurer's delay in indemnifying an insured for a vehicle damaged in an accident, held that “loss of user may be reasonably assessed on available evidence even if not demonstrated with mathematical exactitude, provided the Plaintiff has shown that commercial loss resulted from the insurer's failure to indemnify in good time.”
21. This court is of the view that where a Plaintiff pleads and seeks to prove a specific, quantified pecuniary loss said to have actually been incurred, an identified daily hire charge paid, or an identified daily profit foregone from a business use to which the chattel was in fact being put, as was in the case of David Murithi Githaiga v CFC Stanbic Bank Limited [2019] KEHC 11935 (KLR), where a car-hire agreement at a stated monthly rate was in evidence, that specific pecuniary claim remains, consistently with the position taken in the decision of David Bagine v Martin Bundi [1997] eKLR, in the nature of special damage requiring strict proof, and will fail, or fall to be reduced if the pleaded figure is not established.
22. Where, however, what is shown is simply the fact of wrongful deprivation of the use of a chattel by reason of a defendant's breach, without a business or income-generating use having been specifically pleaded and proved, the court may make fair and reasonable assessment of the inconvenience and loss inherent in that deprivation, doing “the best it can” on the available evidence, much as it would assess general damages for pain and suffering or loss of amenity. This is the approach taken by the court in the decision of Wambua v Patel & Another [1986] KLR 336 and Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR).
23. Applying the facts in the present matter, the Respondent specifically pleaded and sought to prove quantified special damages of Kes 2,000/- per day, said to represent an actual daily loss arising from being deprived of the use of the vehicle. She led no evidence to substantiate that figure and expressly conceded as much under cross-examination.
24. To that extent, the specifically pleaded and quantified claim of Kes 2,000/- per day was not proved and cannot stand as pleaded. The trial court was therefore correct not to award that unproved figure.
25. However, it does not follow that the claim for loss of use fails altogether. It was not in dispute that the Respondent was, by reason of the Appellant's default, wrongfully deprived of the use of her motor vehicle for a substantial period. That bare fact of deprivation, flowing directly from an established breach, is compensable as general damages, notwithstanding the failure of the specifically pleaded special damages claim. The trial court did not err in principle in proceeding to assess a general damages figure. I find no merit in the first limb of the Appellant's appeal.
Whether, on the evidence, the trial court's award of Kshs 1,400,000 for loss of user was properly arrived at, and if not, what is the appropriate figure;
26. From the submissions filed before the court, it is evident that the issue with the trial court's award is not the characterization of the claim as one in general damages, but rather the absence of any reasoned or principled basis for awarding Kes 1,400,000/-, particularly the absence of the Respondent’s evidence or proof of the claim to warrant the award of general damages.
27. It is well established that even a properly founded claim for loss of user of a chattel must be confined to a reasonable period, and cannot be permitted to run indefinitely to the date of judgment. In David Bagine v Martin Bundi (supra), the Court of Appeal held that the trial judge had “seriously erred” in awarding loss of user “for a period of nearly three years,” holding that such damages “can be limited to a reasonable period, which period could only have been the period during which the lorry could have been repaired, plus some period required to assess the repair costs.”
28. In African Highland Produce Limited v John Kisorio [2001] KECA 364 (KLR) the Court of Appeal reduced an award calculated over seven months' actual hire to one reflecting only 21 days, holding that “the plaintiff did not take reasonable steps to mitigate the loss.” In Thomas Kapombe & another t/a Kalita Transporters v Matunda Fruits Bus Services Limited [2017] KEHC 295 (KLR) the reasonable period was similarly capped at 21 days.
29. This principle was applied with particular force, on facts closely analogous to the present case, in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) an insurer's persistent refusal to indemnify the insured for a damaged commercial vehicle led the trial court to award loss of user calculated at the claimed daily rate from the date of the accident to the date of judgment. This was a period of approximately three years hence an award of Kes 10,200,000/-. On appeal, the High Court held that award “inordinately high,” notwithstanding that the insurer's own default was squarely the cause of the prolonged deprivation, reasoning that “the law on mitigation of damages must impose an upper limit for which such damages are recoverable,” and fixed a reasonable outer limit of twelve months from the date of the accident, reducing the award accordingly to Kes 1,800,000/-.
30. The Court adopts the position taken by the court on appeal in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR). The duty to mitigate is not extinguished merely because the defendant is the cause of the continuing default. From the case law on the issue, courts strike a balance by fixing a reasonable outer limit to the recoverable period.
31. In David Murithi Githaiga v CFC Stanbic Bank Limited [2019] KEHC 11935 (KLR) and Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) the chattel remained throughout in the defendant's own custody or that of its agent just as is the present matter where the Respondent’s vehicle was at all material times held at Jaffery Motors Garage, the Appellant's agent and that release could only have been authorised by the Appellant.
32. From the proceedings before the trial court, the Appellant's own assessor had, by 17th May 2018, estimated a repair period of 10 days, subject to the availability of parts. The gearbox damage was discovered on 24th July 2018. On the material before the trial court, repairs were represented to have been substantially complete and the vehicle ready by about 1st May 2018, before the discovery of further gearbox damage extended that timeline. Final re-inspection and certification of roadworthiness occurred only on 18th December 2018; some eight months after the accident.
33. This court considers that a reasonable person exercising ordinary diligence, once it became apparent by the end of 2018 that the vehicle would not, despite certification, reliably start and that the Appellant would not commit to a release, ought, by the following anniversary of the accident, to have taken decisive steps, whether by insisting on payment of the insured value, as the Respondent in fact later did by letters dated 23rd November 2018 and 22nd January 2019, or otherwise, rather than allow the claim for loss of use to run open-ended to the date of judgment.
34. I therefore find, applying the reasoning in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR), that a reasonable outer limit for the recoverable period of loss of use in this case is twelve months from 1st May 2018 up to 30th April 2019.
35. As to rate, since the pleaded figure of Kes 2,000/- per day was not proved, and the claim now falls to be assessed as general damages, I decline to adopt that figure in full. Doing the best I can on the material before me, and bearing in mind that the vehicle was a private, non-commercial motor vehicle in respect of which no business or income-generating use was pleaded or proved. I consider a fair and reasonable rate to be Kes 1,500 per day, or Kes 45,000/- per month. Over the twelve-month period identified above, this yields a sum of Kes 540,000/-.
36. Accordingly, the appeal succeeds to this extent: the sum of Kes 1,400,000 awarded by the trial court as general damages for loss of user is set aside and substituted with an award of Kes 540,000/-.
37. I now turn to the cross-appeal. It is common ground that the claim for Kes 1,800,000, being the insured value of the vehicle as pleaded in paragraphs 11 to 13 of the Plaint, was addressed in the Respondent's evidence in chief and cross-examination, was the subject of correspondence between the parties, and was addressed in submissions before the trial court.
38. The trial court's judgment, having dealt fully with the question of loss of use, disposed of this distinct claim by finding that the claim for general damages for breach of contract had not been proved and declining it. This court’s position is that the claim for the insured value of the vehicle is not a claim for general damages for breach of contract. It is a specific, quantified claim for indemnification under the policy, contingent on the vehicle being properly treated as a total or constructive loss.
39. A trial court is obliged to determine every issue properly raised in the pleadings and canvassed at trial, and its failure to do so is an error warranting correction on appeal, as held in Mikaal Limited & another v Commissioner of Lands & 2 others [2024] KECA 358 (KLR). Where the course of trial shows that the parties left a particular question for the court's determination, even in the absence of perfectly precise pleading, the court is expected to determine it, as was held in Odd Jobs v Mubia [1970] EA 476. Applying these principles, I find that the trial court erred in failing to determine the Respondent's claim for Kes 1,800,000/- and that this ground of cross-appeal is made out.
40. From the evidence before the trial court, the following was established: the vehicle was insured at an agreed value of Kes 1,800,000/-; the final, supplementary repair estimate was Kes 921,736/-, which exceeded 51% of the insured value; notwithstanding a certification of satisfactory repair following replacement of the gearbox, the vehicle failed to start on three occasions when tested.
41. The Appellant's own officer acknowledged in writing that, as at 2nd November 2018, the vehicle's failure to run was unresolved and required “a solution... of mutual benefit to both parties”; no release letter was ever issued to the Respondent or the garage; and, to date, the vehicle remains at the garage, incurring storage charges which the Appellant's own witness conceded are payable to its own agent garage.
42. I do not accept the Respondent's submission that a bare arithmetical rule, under which repair costs exceeding 50% of insured value automatically convert a vehicle into a write-off, is a rule of law binding on this court. No policy clause to that effect, nor any authority establishing it as a rule of general application rather than an industry practice ordinarily incorporated by express policy term, was placed before the trial court or this court.
43. What is clearly established by the evidence, and in my view decisive, is that the vehicle has not been restored to the Respondent's use, that the Appellant is squarely responsible for this, and that it would offend the basic principle that there can be no wrong without a remedy to leave the Respondent, seven years on, with neither her vehicle nor its value.
44. I am guided by the decision in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR), where the High Court did not regard an award of the pre-accident value of a damaged insured vehicle as inconsistent with a separate, capped award for loss of use; the two heads of damage were treated as distinct and cumulative, with one compensating for the underlying capital loss and the other for the intervening deprivation of use up to the point at which the Respondent ought reasonably to have secured its equivalent.
45. This approach is further supported by Halsbury's Laws of England relied upon by the Appellant to the effect that “loss of user profit for a period until a replacement could be obtained may also be awarded, together with” the value of the chattel. Therefore confirming that these are properly cumulative, not alternative, heads of loss, provided the loss of user is not permitted to run beyond the point at which the value becomes payable.
46. I therefore find that the Respondent is entitled to be paid the insured value of the vehicle, Kes 1,800,000/-, in full and final settlement of her interest in it, upon which the vehicle shall be treated, as between the parties, as a total loss, and salvage in, and title to, it shall vest in the Appellant, to be collected by the Appellant from Jaffery Motors Garage at its own cost and expense, including settlement of any storage charges due to that garage.
47. For the avoidance of doubt, and to avoid any risk of double recovery, I have confined the award for loss of user to the twelve (12) month period ending 30th April 2019, being the point at which, on the facts of this case, the Respondent ought reasonably to have crystallized her claim for the value of the vehicle rather than allow the position to remain open-ended. The award of Kes 1,800,000/- under this head compensates for the loss of the vehicle itself from that point onward, and no further sum is awarded for loss of use beyond 30th April 2019.
Final Orders
48. For the foregoing reasons, I make the following orders:
(a). The appeal succeeds in part. The award of Kes 1,400,000/- made by the trial court as general damages for loss of use is set aside and substituted with an award of Kes 540,000/-, which sum shall attract interest at court rates from 16th July 2025 until payment in full;
(b). The cross-appeal succeeds. The Appellant shall pay to the Respondent the sum of Kes 1,800,000/-, being the insured value of motor vehicle registration number KCA 870S, together with interest thereon at court rates from 7th June 2019 until payment in full;
(c). Upon payment in full of the sum in (b) above, the said motor vehicle shall be treated as a total loss, and all salvage rights, title and interest therein shall vest in the Appellant, which shall be at liberty to collect it from Jaffery Motors Garage, Mombasa, at its own cost, including settlement of any storage charges owed to the said garage;
(d). The order of the trial court awarding the Respondent the costs of the suit, together with interest thereon at court rates, is upheld.
(e). The Respondent shall have the costs of both the Appeal and the Cross-Appeal.
Dated and signed at Nairobi this 28th day of July 2026
1. This is the first appeal and cross-appeal from the judgment delivered on 16th July 2025 in Mombasa CMCC No. 847 of 2019.
2. The dispute concerns motor vehicle registration number KCA 870S, a Toyota RAV 4, which the Respondent had comprehensively insured with the Appellant at an agreed insured value of Kes 1,800,000/- for the period from 5th June 2017 to 4th June 2018, upon payment of a premium of Kes 54,000/-.
3. On 8th April 2018, during the subsistence of the cover, the vehicle was involved in an accident and, on the Appellant's instructions, was towed to Jaffery Motors Garage, Mombasa, for repairs. It is common ground that repairs were undertaken and that the damage was more extensive than first anticipated, and that, as at the time of the hearing of the suit and the appeal, the vehicle had not been released to the Respondent. This has spanned more than seven years since the accident occurred.
4. The trial court found the Appellant liable for the delay in releasing the vehicle and awarded the Respondent Kes 1,400,000/- as general damages for loss of use, with costs and interest, but did not award the Kes 1,800,000/- claimed by the Respondent as the insured value of the vehicle. Both parties are dissatisfied with this decision to different degrees, hence the present appeal.
Background
5. By a plaint dated 7th June 2019, the Respondent pleaded that she paid the agreed premium for comprehensive cover for the motor vehicle with registration number KCA 870S, a Toyota RAV 4, at an insured value of Kes 1,800,000/-.
6. On or about 8th April 2018, the vehicle was involved in an accident, and she reasonably expected it to be repaired and released by 30th April 2018. She stated that as at the date of filing suit, the vehicle had not been repaired nor released to her. She claimed loss of use at Kes 2,000/- per day from 1st July 2018; and that she was entitled to be paid the insured value of the vehicle, Kes 1,800,000/-, together with general damages for breach of contract.
7. The evidence at trial established the following:
(a). The Appellant's assessor, Kibmatt Loss Assessors (EA) Ltd, inspected the vehicle on 3rd May 2018 and, in a report dated 17th May 2018, assessed repair costs at Kes 692,056/-, estimating ten days for completion, subject to the availability of parts;
(b). A supplementary assessment dated 24th July 2018 revealed further gearbox damage, requiring an additional Kes 229,680/-, bringing the total repair costs to approximately Kes 921,736/-. This sum exceeds 51% of the insured value of Kes 1,800,000;
(c). The gearbox was replaced, and following a re-inspection on 18th December 2018, the Appellant's assessor certified that the vehicle had been satisfactorily repaired and restored to its pre-accident condition;
(d). The Respondent's witness, Jones Ngunzu Mwangangi, gave evidence that the vehicle was tested on three occasions and failed to start;
(e). On 2nd November 2018, the Appellant's officer, Leah Mburu, wrote to the Respondent's agent, acknowledging that the vehicle, though “fully repaired,” would not run “as expected,” expressing regret for the “temporary uncertain situation” and assuring a resolution “of mutual benefit to both parties”; and
(f). the vehicle has remained at the garage to date.
8. The trial court, in its judgment, found that liability for the accident and the obligation to repair were not in issue. The real controversy was the Appellant's failure to authorize the release of the vehicle upon completion of the repairs.
9. All the issues outlined above led the trial court to find that the Respondent was entitled to general damages for loss of use, assessed at Kes 1,400,000, and to award costs and interest. However, it declined to award damages in respect of “the claim for general damages for breach of contract.”
10.The Appellant's central contention, grounded in the decision of David Bagine v Martin Bundi [1997] eKLR, is that loss of user is, by its nature, special damage that must be specifically pleaded and strictly proved. The Respondent, having pleaded Kes 2,000 per day and having admitted at page 206 of the record of Appeal that she had “not produced evidence to that effect,” failed to discharge that burden.
11. The Appellant buttressed its position by relying on the court’s decisions in African Highland Produce Ltd v John Kisorio [2001] eKLR, Thomas Kapombe & Another v Matunda Fruits Bus Services Ltd [2018] eKLR and David Murithi Githaiga v CFC Stanbic Bank Ltd [2019] eKLR. It is further contended that even a properly proved claim for loss of use must, in accordance with the plaintiff's duty to mitigate, be confined to the reasonable period necessary for repairs. These authorities found the reasonable time to be between 15 and 30 days and held that the recoverable sum should not exceed Kes 60,000/-.
12. The Respondent’s cross-appeal is on the ground that the trial court failed to determine the question of the value and compensation for the vehicle, notwithstanding that it was pleaded in paragraphs 11 to 13 of the Plaint, addressed in both witness statements, and canvassed in evidence and submissions; and that it ought to have awarded Kes 1,800,000/-, being the insured value of the motor vehicle.
13. In her submissions, the Respondent contended that, because the final repair estimate of Kes 921,736/- exceeded 50% of the insured value, the vehicle ought to have been treated as a constructive total loss. She further argued that the Appellant's own conduct, including the admission in the email of 2nd November 2018, the failure to issue any release letter, and the continued retention of the vehicle, demonstrated that the vehicle had never in truth been restored to her use. She also contended that the trial court's silence on this squarely pleaded claim was an error warranting correction on appeal. In support of this contention, her counsel cited the case of Mikaal Limited & Another v Attorney General & 2 Others [2024] KECA 358 (KLR) and also Odd Jobs v Mubia [1970] EA 476.
14. On quantum of loss of use, the Respondent supported the trial court's award, relying on the decisions of the court in Samuel Kariuki Nyagoti v Johaan Distelberger [2017] eKLR, Jackson Mwabili v Peterson Mateli [2020] eKLR, Wambua v Patel & Another [1986] KLR 336, Butt v Khan [1981] KLR 349, Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR), and Sanlam General Insurance Co. Ltd v M'Mbura (Civil Appeal E054 & E098 of 2024 (Consolidated)) [2025] KEHC 340 (KLR), to the effect that loss of use of a chattel is a general damages claim, assessable on a balance of probabilities, without the mathematical exactitude required of special damages.
Analysis and Determination
15. As a first appellate court, the court is required to reconsider and re-evaluate the evidence on record, and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. This position is well settled and has been stated in a plethora of decisions of the courts of record. I will cite a few: Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123; Ramji Ratna & Co. Ltd v Wood Products (Kenya) Ltd, Civil Appeal No. 117 of 2001; Hanh v Singh [1985] KLR 716 and Simon Muchemi Atako & Another v Gordon Osore [2013] eKLR.
16. On quantum, in particular, an appellate court will not disturb an award of damages merely because it might itself have arrived at a different figure. Interference is justified only where the trial court proceeded on wrong principles, took into account irrelevant factor(s) or omitted a relevant one, misapprehended the evidence, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate as was held in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia and Another (No. 2) (1982-88) 1 KAR 727 and Butt v Khan [1981] KLR 349.
17. Equally, however, a trial court's failure to determine an issue properly placed before it is an error of law warranting appellate intervention, as held in Mikaal Limited & another v Commissioner of Lands & 2 others [2024] KECA 358 (KLR). A court is expected to pronounce itself on an issue not perfectly captured in the prayers where it is clear from the course of the trial that the parties left it for the court's determination, as held in Odd Jobs v Mubia [1970] EA 476.
Issues for Determination
18. From the Memorandum of Appeal, the Cross-Appeal and submissions filed by the Parties herein, three issues arise for determination:
(i). Whether a claim for loss of use of a motor vehicle is, as a matter of law, confined to special damages requiring strict mathematical proof, or is capable of assessment as general damages;
(ii). Whether, on the evidence, the trial court's award of Kes 1,400,000/- for loss of use was properly arrived at, and if not, what is the appropriate figure; and
(iii). Whether the trial court erred in failing to determine and award the Respondent's claim for Kes 1,800,000/- as the insured value of the vehicle, and if so, whether and to what extent that claim ought now to be allowed.
Analysis of the Issues Arising
Whether a claim for loss of user of a motor vehicle is, as a matter of law, confined to special damages requiring strict mathematical proof, or is capable of assessment as general damages;
19. From the rival submissions and authorities placed before this court, there is clearly an issue as to the award of the claim for loss of use of the Motor vehicle. The decision of the court in David Bagine v Martin Bundi [1997] eKLR held that “damages claimed under the title ‘loss of use’ can only be special damages,” which “can in no circumstances be equated to general damages,” and must accordingly be strictly pleaded and strictly proved, failing which the claim must fail. The same principle informed the approach in Thomas Kapombe & another t/a Kalita Transporters v Matunda Fruits Bus Services Limited [2017] KEHC 295 (KLR) and African Highland Produce Limited v John Kisorio [2001] KECA 364 (KLR); in both decisions the courts nonetheless made modest awards once satisfied some loss had been proved, but confined the recoverable period strictly by reference to the Plaintiff's duty to mitigate.
20. On the other hand, the decision of the Court of Appeal in Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR) held that “...the loss of use of a profit-making chattel such as a lorry or matatu through an accident is similarly a claim in general damages. The standard of proof in such claims is on the balance of probabilities, and the principle of restitutio in integrum is applied in such cases.” This position was echoed in Jackson Mwabili v Peterson Mateli [2020] KEHC 2814 (KLR) and, most pertinently to the facts of this case and in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) where the High Court, dealing with an insurer's delay in indemnifying an insured for a vehicle damaged in an accident, held that “loss of user may be reasonably assessed on available evidence even if not demonstrated with mathematical exactitude, provided the Plaintiff has shown that commercial loss resulted from the insurer's failure to indemnify in good time.”
21. This court is of the view that where a Plaintiff pleads and seeks to prove a specific, quantified pecuniary loss said to have actually been incurred, an identified daily hire charge paid, or an identified daily profit foregone from a business use to which the chattel was in fact being put, as was in the case of David Murithi Githaiga v CFC Stanbic Bank Limited [2019] KEHC 11935 (KLR), where a car-hire agreement at a stated monthly rate was in evidence, that specific pecuniary claim remains, consistently with the position taken in the decision of David Bagine v Martin Bundi [1997] eKLR, in the nature of special damage requiring strict proof, and will fail, or fall to be reduced if the pleaded figure is not established.
22. Where, however, what is shown is simply the fact of wrongful deprivation of the use of a chattel by reason of a defendant's breach, without a business or income-generating use having been specifically pleaded and proved, the court may make fair and reasonable assessment of the inconvenience and loss inherent in that deprivation, doing “the best it can” on the available evidence, much as it would assess general damages for pain and suffering or loss of amenity. This is the approach taken by the court in the decision of Wambua v Patel & Another [1986] KLR 336 and Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR).
23. Applying the facts in the present matter, the Respondent specifically pleaded and sought to prove quantified special damages of Kes 2,000/- per day, said to represent an actual daily loss arising from being deprived of the use of the vehicle. She led no evidence to substantiate that figure and expressly conceded as much under cross-examination.
24. To that extent, the specifically pleaded and quantified claim of Kes 2,000/- per day was not proved and cannot stand as pleaded. The trial court was therefore correct not to award that unproved figure.
25. However, it does not follow that the claim for loss of use fails altogether. It was not in dispute that the Respondent was, by reason of the Appellant's default, wrongfully deprived of the use of her motor vehicle for a substantial period. That bare fact of deprivation, flowing directly from an established breach, is compensable as general damages, notwithstanding the failure of the specifically pleaded special damages claim. The trial court did not err in principle in proceeding to assess a general damages figure. I find no merit in the first limb of the Appellant's appeal.
Whether, on the evidence, the trial court's award of Kshs 1,400,000 for loss of user was properly arrived at, and if not, what is the appropriate figure;
26. From the submissions filed before the court, it is evident that the issue with the trial court's award is not the characterization of the claim as one in general damages, but rather the absence of any reasoned or principled basis for awarding Kes 1,400,000/-, particularly the absence of the Respondent’s evidence or proof of the claim to warrant the award of general damages.
27. It is well established that even a properly founded claim for loss of user of a chattel must be confined to a reasonable period, and cannot be permitted to run indefinitely to the date of judgment. In David Bagine v Martin Bundi (supra), the Court of Appeal held that the trial judge had “seriously erred” in awarding loss of user “for a period of nearly three years,” holding that such damages “can be limited to a reasonable period, which period could only have been the period during which the lorry could have been repaired, plus some period required to assess the repair costs.”
28. In African Highland Produce Limited v John Kisorio [2001] KECA 364 (KLR) the Court of Appeal reduced an award calculated over seven months' actual hire to one reflecting only 21 days, holding that “the plaintiff did not take reasonable steps to mitigate the loss.” In Thomas Kapombe & another t/a Kalita Transporters v Matunda Fruits Bus Services Limited [2017] KEHC 295 (KLR) the reasonable period was similarly capped at 21 days.
29. This principle was applied with particular force, on facts closely analogous to the present case, in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) an insurer's persistent refusal to indemnify the insured for a damaged commercial vehicle led the trial court to award loss of user calculated at the claimed daily rate from the date of the accident to the date of judgment. This was a period of approximately three years hence an award of Kes 10,200,000/-. On appeal, the High Court held that award “inordinately high,” notwithstanding that the insurer's own default was squarely the cause of the prolonged deprivation, reasoning that “the law on mitigation of damages must impose an upper limit for which such damages are recoverable,” and fixed a reasonable outer limit of twelve months from the date of the accident, reducing the award accordingly to Kes 1,800,000/-.
30. The Court adopts the position taken by the court on appeal in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR). The duty to mitigate is not extinguished merely because the defendant is the cause of the continuing default. From the case law on the issue, courts strike a balance by fixing a reasonable outer limit to the recoverable period.
31. In David Murithi Githaiga v CFC Stanbic Bank Limited [2019] KEHC 11935 (KLR) and Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR) the chattel remained throughout in the defendant's own custody or that of its agent just as is the present matter where the Respondent’s vehicle was at all material times held at Jaffery Motors Garage, the Appellant's agent and that release could only have been authorised by the Appellant.
32. From the proceedings before the trial court, the Appellant's own assessor had, by 17th May 2018, estimated a repair period of 10 days, subject to the availability of parts. The gearbox damage was discovered on 24th July 2018. On the material before the trial court, repairs were represented to have been substantially complete and the vehicle ready by about 1st May 2018, before the discovery of further gearbox damage extended that timeline. Final re-inspection and certification of roadworthiness occurred only on 18th December 2018; some eight months after the accident.
33. This court considers that a reasonable person exercising ordinary diligence, once it became apparent by the end of 2018 that the vehicle would not, despite certification, reliably start and that the Appellant would not commit to a release, ought, by the following anniversary of the accident, to have taken decisive steps, whether by insisting on payment of the insured value, as the Respondent in fact later did by letters dated 23rd November 2018 and 22nd January 2019, or otherwise, rather than allow the claim for loss of use to run open-ended to the date of judgment.
34. I therefore find, applying the reasoning in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR), that a reasonable outer limit for the recoverable period of loss of use in this case is twelve months from 1st May 2018 up to 30th April 2019.
35. As to rate, since the pleaded figure of Kes 2,000/- per day was not proved, and the claim now falls to be assessed as general damages, I decline to adopt that figure in full. Doing the best I can on the material before me, and bearing in mind that the vehicle was a private, non-commercial motor vehicle in respect of which no business or income-generating use was pleaded or proved. I consider a fair and reasonable rate to be Kes 1,500 per day, or Kes 45,000/- per month. Over the twelve-month period identified above, this yields a sum of Kes 540,000/-.
36. Accordingly, the appeal succeeds to this extent: the sum of Kes 1,400,000 awarded by the trial court as general damages for loss of user is set aside and substituted with an award of Kes 540,000/-.
37. I now turn to the cross-appeal. It is common ground that the claim for Kes 1,800,000, being the insured value of the vehicle as pleaded in paragraphs 11 to 13 of the Plaint, was addressed in the Respondent's evidence in chief and cross-examination, was the subject of correspondence between the parties, and was addressed in submissions before the trial court.
38. The trial court's judgment, having dealt fully with the question of loss of use, disposed of this distinct claim by finding that the claim for general damages for breach of contract had not been proved and declining it. This court’s position is that the claim for the insured value of the vehicle is not a claim for general damages for breach of contract. It is a specific, quantified claim for indemnification under the policy, contingent on the vehicle being properly treated as a total or constructive loss.
39. A trial court is obliged to determine every issue properly raised in the pleadings and canvassed at trial, and its failure to do so is an error warranting correction on appeal, as held in Mikaal Limited & another v Commissioner of Lands & 2 others [2024] KECA 358 (KLR). Where the course of trial shows that the parties left a particular question for the court's determination, even in the absence of perfectly precise pleading, the court is expected to determine it, as was held in Odd Jobs v Mubia [1970] EA 476. Applying these principles, I find that the trial court erred in failing to determine the Respondent's claim for Kes 1,800,000/- and that this ground of cross-appeal is made out.
40. From the evidence before the trial court, the following was established: the vehicle was insured at an agreed value of Kes 1,800,000/-; the final, supplementary repair estimate was Kes 921,736/-, which exceeded 51% of the insured value; notwithstanding a certification of satisfactory repair following replacement of the gearbox, the vehicle failed to start on three occasions when tested.
41. The Appellant's own officer acknowledged in writing that, as at 2nd November 2018, the vehicle's failure to run was unresolved and required “a solution... of mutual benefit to both parties”; no release letter was ever issued to the Respondent or the garage; and, to date, the vehicle remains at the garage, incurring storage charges which the Appellant's own witness conceded are payable to its own agent garage.
42. I do not accept the Respondent's submission that a bare arithmetical rule, under which repair costs exceeding 50% of insured value automatically convert a vehicle into a write-off, is a rule of law binding on this court. No policy clause to that effect, nor any authority establishing it as a rule of general application rather than an industry practice ordinarily incorporated by express policy term, was placed before the trial court or this court.
43. What is clearly established by the evidence, and in my view decisive, is that the vehicle has not been restored to the Respondent's use, that the Appellant is squarely responsible for this, and that it would offend the basic principle that there can be no wrong without a remedy to leave the Respondent, seven years on, with neither her vehicle nor its value.
44. I am guided by the decision in Sanlam General Insurance Co. Ltd v M’Mbura [2025] KEHC 340 (KLR), where the High Court did not regard an award of the pre-accident value of a damaged insured vehicle as inconsistent with a separate, capped award for loss of use; the two heads of damage were treated as distinct and cumulative, with one compensating for the underlying capital loss and the other for the intervening deprivation of use up to the point at which the Respondent ought reasonably to have secured its equivalent.
45. This approach is further supported by Halsbury's Laws of England relied upon by the Appellant to the effect that “loss of user profit for a period until a replacement could be obtained may also be awarded, together with” the value of the chattel. Therefore confirming that these are properly cumulative, not alternative, heads of loss, provided the loss of user is not permitted to run beyond the point at which the value becomes payable.
46. I therefore find that the Respondent is entitled to be paid the insured value of the vehicle, Kes 1,800,000/-, in full and final settlement of her interest in it, upon which the vehicle shall be treated, as between the parties, as a total loss, and salvage in, and title to, it shall vest in the Appellant, to be collected by the Appellant from Jaffery Motors Garage at its own cost and expense, including settlement of any storage charges due to that garage.
47. For the avoidance of doubt, and to avoid any risk of double recovery, I have confined the award for loss of user to the twelve (12) month period ending 30th April 2019, being the point at which, on the facts of this case, the Respondent ought reasonably to have crystallized her claim for the value of the vehicle rather than allow the position to remain open-ended. The award of Kes 1,800,000/- under this head compensates for the loss of the vehicle itself from that point onward, and no further sum is awarded for loss of use beyond 30th April 2019.
Final Orders
48. For the foregoing reasons, I make the following orders:
(a). The appeal succeeds in part. The award of Kes 1,400,000/- made by the trial court as general damages for loss of use is set aside and substituted with an award of Kes 540,000/-, which sum shall attract interest at court rates from 16th July 2025 until payment in full;
(b). The cross-appeal succeeds. The Appellant shall pay to the Respondent the sum of Kes 1,800,000/-, being the insured value of motor vehicle registration number KCA 870S, together with interest thereon at court rates from 7th June 2019 until payment in full;
(c). Upon payment in full of the sum in (b) above, the said motor vehicle shall be treated as a total loss, and all salvage rights, title and interest therein shall vest in the Appellant, which shall be at liberty to collect it from Jaffery Motors Garage, Mombasa, at its own cost, including settlement of any storage charges owed to the said garage;
(d). The order of the trial court awarding the Respondent the costs of the suit, together with interest thereon at court rates, is upheld.
(e). The Respondent shall have the costs of both the Appeal and the Cross-Appeal.
Dated and signed at Nairobi this 28th day of July 2026