Miwa Hauliers & MOSES SHIKHOKHA WETABA v Godfrey Auma [2007] KEHC 3474 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Civil Appeal 109 of 2005

MIWA HAULIERS……………………...………..  1ST APPELLANT

MOSES SHIKHOKHA WETABA...........………2ND APPELLANT

=VERSUS=

GODFREY AUMA  ………………......…………… RESPONDENT

JUDGMENT

This is an appeal against the decision of the Hon. Chief Magistrate Mrs. F.N. Muchemi in CMCC No. 249 of 2003 delivered on 21st October 2005.

In the said case which arose out of a road accident, the trial Court awarded a total sum of Kshs 315,000/= to the Defendant made up as follows:-

(a)    Pre-accident value of motor vehicle   Kshs       285,000/=

Less salvage of   Kshs   45,000/=

………….   Kshs      240,000/=

(b)    Towing charges         ………….   Kshs        10,000/=

(c)    Valuation report       ………….   Kshs        4,000/=

(d)    Loss of User               …………    Kshs     96,000/=

_________________

Total                          Kshs      350,000/=

Less  10% contribution    ……………             35,000/=

_________________

Kshs       315,000/=

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The parties had agreed on liability on the ratio of 90% - 10% in favour of Plaintiff.

This was a claim for material damage and loss of user.  It is my view that the claim for loss of user is not special damages and it was irregular to include in the claim for special damages.  A claim for loss of user could only be a claim in general damages and for determination by the Court.

I have also perused the proceedings and it is clear from the record that the Plaintiff did not lead or tender any evidence to prove loss of user.  There is no evidence to show how the sum of Kshs 96,000/= was arrived at.  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.

In the premises, I would disallow the award of loss of user in the sum of Kshs 96,000/=.

The towing charges in the sum of Kshs 10,000/= was not proven.  No receipt was produced to prove payment.  The Plaintiff merely referred to the plaint.  This must also be disallowed.

I therefore do hereby allow the appeal and set aside the judgment.  I do hereby enter judgment for the Plaintiff (Respondent) as follows:

(a)    Pre-accident value of motor vehicle  Kshs   285,000/=

Less salvage  of Kshs 45,000/=

…………..   Kshs   240,000/=

(b)    Valuation Report       …………..   Kshs     4,000/=

________________

Sub-total             ………….Kshs    244,000/=

Less 10% contribution  …………    Kshs    24,400/=

_________________

Total                          Kshs     219,600/=

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The Plaintiff shall be paid costs and interest on the said sum from the date of Judgment by the trial Court.  Each party to bear his/its costs of this appeal.

DATED AT ELDORET THIS 5TH DAY OF NOVEMBER 2007.

M.K. IBRAHIM,

JUDGE.