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Court of AppealPartially AllowedCivil Appeal No. 283 of 1996

David Bagine v Martin Bundi

Court of Appeal
21 November 1997
JGJ.E. GicheruASA.B. ShahGPG.S. Pall
0 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out Kshs.767,750 in accident damages because the lorry owner couldn't prove his losses with solid evidence.

What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Shah and Pall, JJ.A) allowed an appeal confined to the quantum of damages awarded by the High Court at Meru (Etyang' J) following a road traffic accident between the respondent's Isuzu lorry and the appellant's Nissan. Liability was not in issue. The trial court had awarded special damages of Shs.227,750 for repairs and Kshs.540,000 for loss of user, the latter assessed as general damages at Kshs.500 per day from the date of accident to judgment. The Court reaffirmed the settled rule that special damages must be both pleaded and strictly proved, citing Mariam Maghema Ali v Jackson M. Nyambu, Idi Ayub Sahbani 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 heading 'loss of user' can only be special damages and cannot be assessed as general damages 'doing the best I can'; such damages are limited to a reasonable period covering repairs plus assessment of repair costs, for which there was no evidence. The repair-cost award also failed because the respondent produced only an estimate, called no automobile assessor, and gave 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, with each party bearing 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.227,750/277,750 for repair costs were strictly proved

Key legal issues

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01

Whether loss of user may be awarded 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 assessed loss of user as general damages at Kshs.500 per day over nearly three years despite acknowledging there was no documentary proof of the claimed daily profit. The Court held that loss of user is a specific loss the claimant suffers, must be strictly proved, and is limited to a reasonable period covering repairs plus assessment of repair costs, none of which was evidenced.

p. 2
02

Whether an estimate of repair costs strictly proves special damages

Holding

No. Without expert evidence of actual repair costs, pre-accident value or salvage value, an estimate does not prove the damage

Reasoning

The respondent produced only an estimate and admitted he had never repaired the vehicle. No automobile assessor testified, and there was no evidence of pre-accident or salvage value. Since special damages must be strictly proved, the award of repair costs could not stand, even though the Court accepted the respondent likely suffered some damage.

p. 2

Legal principles established

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  • Special damages must be both pleaded and strictly proved
  • Damages under the heading 'loss of user' can only be special damages and cannot be assessed as 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
  • An estimate of repair costs, unsupported by expert evidence, does not strictly prove special damages

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.Appellant 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.

JG
majority
AS
majority
GP
majority
On appeal from
High Court of Kenya at Meru
Civil Suit No. 159 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (appellate jurisdiction over the High Court)

Relief refused

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Respondent's damages awards (loss of user and repair costs)

Special damages were neither properly pleaded as such nor strictly proved; loss of user was wrongly assessed as general damages

p. 2

Costs

The appellant 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. 1Special damages - pleading and strict proof
We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages.
p. 2Loss of user as special damages
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 appellant will have costs of this appeal but both parties will bear thier 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 inconsistently as Shs.227,750 and Kshs.277,750 in different passages

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "David Bagine v Martin Bundi", Case Analysis (1997). Civil Appeal No. 283 of 1996. Source:

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