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Court of AppealDismissedCivil Appeal No. 154 of 2005· [2010] KECA 20 (KLR)

Nkuene Dairy Farmers Co-op Society Ltd & 1 other v Ngacha Ndeiya

Court of Appeal of Kenya
10 December 2010
1,496 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can prove vehicle repair costs with an unchallenged assessor's report—no repair receipts needed.

What this practically means

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Executive summary

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The respondent sued the appellants, owner and driver of motor vehicle KAE 811 B, for special damages of Kshs.131,443 being repair costs, plus loss of user, following a road traffic accident. The trial magistrate accepted the unchallenged evidence of the respondent and his witnesses and the assessor's report, awarding the repair figure less labour costs. Onyancha J. on first appeal dismissed the appeal, holding the assessor's valuation report sufficient proof of special damages and observing that the magistrate had improperly disallowed labour charges. The appellants' second appeal, confined by section 72(1) of the Civil Procedure Act to issues of law, challenged the sufficiency of the assessor's report as proof of special damages, arguing repairs had to be strictly proved by receipts. The Court of Appeal held that special damages in a material damage claim need not be shown to have actually been incurred; the claimant need only show the extent of the damage and the restoration cost with reasonable certainty, applying Ratcliffe v. Evans. An unchallenged assessor's report was acceptable opinion evidence of market prices, and the appellants' failure to question it amounted to acceptance. The court also followed David Bagine v. Martin Bundi on the evidential value of assessor's reports. The appeal was dismissed with costs to the respondent, affirming the concurrent findings below.

Key legal issues

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01

Standard of proof of special damages for material damage to a motor vehicle

Holding

Special damages need not be shown to have actually been incurred; the claimant must show the extent of the damage and the cost of restoring the item to its pre-damage condition, with reasonable certainty and particularity.

Reasoning

The court adopted Bowen L.J.'s test in Ratcliffe v. Evans that the degree of certainty required in pleading and proof of damage depends on the nature of the acts producing it. Motor vehicle parts are common items whose prices are ascertainable and checkable; an assessor's itemised valuation, unchallenged by the appellants, satisfied that standard without receipts or proof of actual repairs.

p. 2
02

Effect of failure to challenge an assessor's report

Holding

A party that does not question an assessor's prices or experience is taken to have accepted the report as representing correct market prices.

Reasoning

The assessor's experience was not challenged and the report was uncontroverted; the court held the trial court had the right to accept or reject the opinion evidence, and the appellants' silence meant acceptance of the report's market prices. This aligned with the concurrent findings of the trial and first appellate courts, which a second appeal on law could not disturb.

p. 3
03

Scope of a second appeal under section 72(1) of the Civil Procedure Act

Holding

Second appeals lie on issues of law only; grounds challenging findings of fact, such as the sufficiency of the assessor's report, fall outside that scope.

Reasoning

The court noted that the appellants' grounds, though couched as challenges to the sufficiency of evidence, were in substance attacks on findings of fact. Given the concurrent findings below and the absence of any evidence from the appellants, no issue of law arose warranting interference.

p. 2

Legal principles established

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  • Special damages in a material damage claim need not be shown to have actually been incurred; the claimant need only show the extent of the damage and the cost of restoration
  • An unchallenged motor vehicle assessor's report is acceptable evidence to prove the value of material damage, and failure to produce receipts for repairs is not fatal to the claim
  • On a second appeal, a bare assertion that the respondent did not adduce sufficient evidence will not do where the appellant called no evidence to rebut the claim

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 73 of 2000
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act, Cap 21 Laws of Kenya (second appeal on issues of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nkuene Dairy Farmers Co-op Society Ltd & 1 other v Ngacha Ndeiya", Case Analysis (2010). Civil Appeal No. 154 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/20/eng@2010-12-10

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