MARK KHAN TRANSPORTERS LTD v PETER MBUGUA [2009] KECA 212 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that loss of vehicle use must be pleaded and strictly proved as special damages, and it won't disturb factual findings on second appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior court erred in admitting hearsay and inadmissible evidence (police abstracts, repair receipts, income records) on liability and damages
- 2.Whether the award of special damages was properly pleaded and established
- 3.Whether the award of special damages for loss of use of the vehicle was properly pleaded and strictly proved
- 4.Whether the period of 37 days for loss of use was reasonable
- 5.Whether the superior court failed to consider the appellant's submissions in its judgment
Key legal issues
#Whether special damages were properly pleaded and proved
Special damages were specifically claimed in the pleadings with particulars given, and evidence including daily income records supported the claim, so the award was properly upheld.
The pleadings clearly showed the special damages claim with particulars. Proof was by a book of the matatu's daily income and repair receipts covering the number of days out of use. The two lower courts made concurrent findings on this evidence, which the Court cannot disturb on second appeal, especially where the appellant offered no evidence at trial.
Whether loss of use must be pleaded and strictly proved as special damages
Loss of use must be claimed as special damages and proved strictly; unlike Waweru v Ndiga where it was claimed as general damages with no particulars, here it was specifically pleaded and proved.
The Court distinguished Waweru v Ndiga, where the damages were claimed as general damages with no particulars. Here the loss of use was specifically claimed as special damages in the pleadings, and the two lower courts were satisfied with the documentary evidence. The facts of the present case were therefore clearly distinguishable, and the award was proper.
Whether 37 days for repairs was a reasonable period for loss of use
Reasonableness of the repair period is a question of fact with no rule of thumb; the two courts below found 37 days reasonable and it was not shown to be manifestly excessive.
The appellant contended 7 days was reasonable but offered no evidence at trial. Timsales v Up & Down Saw Mills, on mitigation within a reasonable time, was illustrative only; the duty here was to effect repairs within a reasonable time, which the respondent discharged. The concurrent finding of 37 days stood absent demonstration of manifest excess.
Scope of a second appeal
Matters of fact, including the admissibility and weight of evidence on income records, do not attract the intervention of the Court on a second appeal.
Counsel for the respondent correctly submitted that the appellant's grounds raised issues of fact based on evidence, which fall outside the mandate of the Court on second appeal. The appellant also never objected to the production of the exhibits at trial and never gave evidence in support of its defence, so no legal issue was demonstrated.
Legal principles established
#- On a second appeal the Court will not interfere with concurrent findings of fact by the two lower courts; only matters of law attract its intervention.
- Loss of use of a vehicle must be claimed and proved strictly as special damages; where it was specifically pleaded and supported by evidence, the award stands.
- A Court of Appeal will not normally interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.
- What is a reasonable period for repairs or mitigation is a question of fact to be determined case by case; there is no rule of thumb.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.C.C. No. 7 of 1999
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law
Relief refused
#Setting aside of concurrent findings of the two lower courts on liability and damages
The appellant raised matters of fact which are outside the mandate of the Court on second appeal, and offered no evidence at trial
Reduction of the loss-of-use period from 37 days to 7 days
The two courts below considered 37 days reasonable and it was not shown to be manifestly excessive
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, we dismiss the appeal with costs to the respondent. It is so ordered.
A Court of Appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.
Damages for loss of the use of a vehicle can be claimed as special damages and not general damages and the loss suffered should be proved strictly.
What is or is not reasonable must be a question of fact to be determined by a court in each case. There cannot be a rule of thumb in determining reasonableness.
the issue of the records produced including the records relating to the income of the “matatu” are all matters of fact which should not attract our intervention, this being a second appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARK KHAN TRANSPORTERS LTD v PETER MBUGUA [2009] KECA 212 (KLR)", Case Analysis (2009). Civil Appeal 311 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/212/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.