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Court of AppealPartially AllowedCivil Appeal No. 70 of 2007· [2012] KECA 96 (KLR)

Unga Limited & another v James Njuguna Njoroge [2012] KECA 96 (KLR)

Court of Appeal of Kenya
9 August 2012
OOOnyango OtienoAVAlnashir VisramMartha Karambu KoomeM. K. Koome
2,058 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed repair damage awards but struck out KShs.54,000 for loss of vehicle use because the owner had no documents proving daily earnings.

What this practically means

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Executive summary

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This was a second appeal against the High Court's dismissal of the appellants' first appeal arising from a road traffic accident of 11th February 1995 between the respondent's motor vehicle KAL 687B and the appellants' motor vehicle KAD 814R. The trial magistrate awarded the respondent special damages of KShs.134,800/- for repairs and KShs.54,000/- for loss of user, a judgment upheld by Kimaru, J on first appeal. The Court of Appeal, sitting at Nakuru (Onyango Otieno, Visram & Koome, JJ.A) in a single joint judgment, reiterated that a second appeal turns only on points of law, applying the Stephen Muringi principle that findings of fact of lower courts must be respected. The Court found the learned judge had erred in relying on PW 1's evidence discarded after a de novo order, but held that the unchallenged evidence on the cause of the accident sustained the liability finding. On repairs, the receipts and invoices admitted by consent supported the award of KShs.134,800/-, which was confirmed as a concurrent finding not open to interference. However, the Court held that loss of user is a special damage requiring strict pleading and proof; with no documents proving earnings of KShs.2,000/- per day, the KShs.54,000/- award was set aside. The appeal was partially allowed, with the appellant awarded one-third of the costs of the appeal.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal turns only on points of law; findings of fact of the lower courts are binding unless no reasonable tribunal could have reached them

Reasoning

The Court adopted Chesoni, Ag JA's statement in Stephen Muringi requiring loyalty to findings of fact below and restraint from treating findings of fact as holdings of law, applying it to the contention that the respondent had not proved his case to the required standard.

p. 3
02

Reliance on discarded evidence after a de novo order

Holding

The learned judge erred in relying on PW 1's evidence given before the first hearing, which had been discarded when the matter was ordered to start de novo, but the error was not fatal because the unchallenged evidence on the cause of the accident stood independently

Reasoning

PW 1 first testified before H. Owino, SRM; after a de novo order he testified again before R. K. Kirui. The judge relied on the discarded evidence regarding the ladder, but the Court found the evidence of PW 1 and PW 2 on the cause of the accident was not challenged and could sustain the liability finding.

p. 3
03

Proof of special damages for repairs

Holding

The receipts and invoices admitted by consent supported the award of KShs.134,800/-; the Court could not speculate that the spare parts were not purchased

Reasoning

PW 3's assessment showed the vehicle had not been repaired by 6th February 1996, yet the receipts bore dates of March 1995. However, the documents were admitted by consent, PW 1 was never cross-examined on the dates, and the trial magistrate who saw the witnesses' demeanour accepted their truth. Concurrent findings would not be disturbed.

p. 4
04

Loss of user: special or general damages

Holding

Loss of user falls under special damages and must be strictly pleaded and proved; the award of KShs.54,000/- was set aside because there was no documentary proof of earnings of KShs.2,000/- per day

Reasoning

Although the plaint sought general damages for non-user, there was no evidence that the vehicle was a PSV and no bank statements or ledger books to show the nature of the business. The Court agreed the judge overlooked this aspect, which required strict proof as special damages.

p. 4

Legal principles established

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  • On a second appeal confined to questions of law, an appellate court must accept the findings of fact of the lower courts and may not interfere unless no reasonable tribunal could have reached that conclusion on the evidence
  • Loss of user is a special damage that must not only be pleaded but strictly proved; earnings lost must be proved through records of previous earnings or the cost of an alternative hired vehicle

Court orders

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  1. 1.Grounds 1(a), (b) and (c) of the memorandum of appeal allowed
  2. 2.The sum of KShs.54,000/- awarded as loss of user set aside
  3. 3.The award of KShs.134,800/- as special damages confirmed
  4. 4.Appellant awarded 1/3 of the costs in this appeal

Authorities

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Cases cited (2)

  • Stephen Muringi & Another v R
    (1982-88) 1 KAR 360
  • Martin v Glywed Distributers Ltd (t/a MBS Fastening)
    1983 ICR 511
On appeal from
High Court of Kenya at Nakuru
HCCA No. 36 of 2002
Jurisdiction invoked
Second appeal to the Court of Appeal confined to points of law

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, "Unga Limited & another v James Njuguna Njoroge [2012] KECA 96 (KLR)", Case Analysis (2012). Civil Appeal No. 70 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/96/eng@2012-08-09

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