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Court of AppealPartially AllowedCivil Appeal 283 of 1996

Bagine v Bundi (Civil Appeal 283 of 1996) [1997] KECA 54 (KLR)

Court of Appeal of Kenya
21 November 1997
1,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that 'loss of user' and repair costs must be strictly proven with evidence, not estimated—vague claims will be thrown out.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Gicheru, Shah and Pall, JJA) allowed an appeal against the assessment of damages by the High Court at Meru (Etyang' J) arising from a 1993 road accident between the respondent's Isuzu lorry and the appellant's Nissan. Liability was not in issue; the appeal concerned only the awards of Kshs. 227,750/= (or 277,750/=) in special damages for repairs and Kshs. 540,000/= for loss of user. The Court reaffirmed the settled rule that special damages must be both pleaded and strictly proved, citing Mariam Maghema Ali v Nyambu, Idi Ayub Shabani v City Council of Nairobi, Bonham Carter v Hyde Park Hotel, Ouma v Nairobi City Council and Kenya Bus Services v Mayende. It held that damages under the title 'loss of user' can only be special damages and can never be equated to general damages assessed 'doing the best I can'; the trial judge erred in treating the claim as general damages and in assessing it over nearly three years, when loss of user is limited to a reasonable repair period plus time to assess repair costs, for which there was no evidence. The repair-cost award also failed because the claimant produced only an estimate, called no automobile assessor, and adduced no evidence of pre-accident or salvage value. Both awards were set aside in their entirety, the Court stressing that the respondent suffered damage but did not prove it. The appellant received the costs of the appeal; each party bore their own costs in the superior court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the award of Kshs. 540,000/= as damages for loss of user, assessed as general damages, was lawful
  2. 2.Whether the special damages of Kshs. 277,750/= for repair costs were strictly proved

Key legal issues

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01

Whether loss of user may be assessed as general damages

Holding

Loss of user can only be special damages; it cannot be equated to general damages assessed 'doing the best I can', and must be strictly proved

Reasoning

The trial judge treated the respondent's claimed loss of user as general damages despite it having been pleaded as special damages 'to be proved at the hearing of the suit'. The Court held that loss of user is a specific loss to the claimant and in no circumstances can be equated to general damages. The judge also erred in assessing it over nearly three years, when it should be limited to a reasonable repair period plus assessment time, for which there was no evidence.

p. 2
02

Whether the repair costs of Kshs. 277,750/= were strictly proved

Holding

They were not; an estimate without expert evidence of exact repair costs, pre-accident value or salvage value does not prove special damages

Reasoning

The claim was based on an estimate of the cost of parts to be replaced. No expert (automobile assessor) was called, and there was no evidence of the pre-accident value or salvage value of the lorry, or whether the sum could properly be spent to put it back on the road. The claimant admitted he had not repaired the vehicle. The burden was on the claimant to prove his damage, and he failed to discharge it.

p. 2

Legal principles established

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  • Special damages must be both pleaded and strictly proved
  • Damages claimed under the title 'loss of user' can only be special damages and cannot be equated to general damages
  • Damages for loss of user of a chattel are limited to a reasonable period, being the repair period plus time to assess repair costs
  • A claimant who produces only an estimate of repair costs, without expert evidence, has not proved his damage

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court in so far as it relates to assessment of damages set aside in its entirety
  3. 3.Appellants to have costs of the appeal
  4. 4.Both parties to bear their own costs in the superior court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
Civil Suit No. 159 of 1994
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal at Nairobi, Civil Appeal 283 of 1996)

Relief refused

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Retention of the award of Kshs. 540,000/= for loss of user

Loss of user can only be special damages and must be strictly proved; the award was made in total disregard of the principles for assessing special damages

p. 2

Retention of the award of Kshs. 277,750/= for repair costs

Only an estimate was produced; no expert evidence of exact repair costs, pre-accident value or salvage value was adduced

p. 2

Costs

The appellants will have costs of this appeal but both parties will bear their own costs in the superior court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It has been held time and again by this court that special damages must be pleaded and strictly proved.
p. 1Standard of proof for special damages
We must and ought to make it clear that damages claimed under the title “loss of user” can only be special damages.
p. 2Characterisation of loss of user
This appeal is therefore allowed and the judgment of the superior court in so far as it relates to assessment of damages is set aside in its entirety. The appellants will have costs of this appeal but both parties will bear their own costs in the superior court. These are our orders.
p. 2Final orders and disposition

Issues in the judgment

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minor

The judgment states the special damages award for repair costs as shs. 227,750/= in one passage and Kshs. 277,750/= in later passages

minor

The quoted passage from Idi Ayub Shabani contains a typographical error ('strightly')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bagine v Bundi (Civil Appeal 283 of 1996) [1997] KECA 54 (KLR)", Case Analysis (1997). Civil Appeal 283 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/54/eng@1997-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.