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Court of AppealDismissedCivil Appeal No. 231 of 2005· [2013] KECA 163 (KLR)

Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR)

Court of Appeal of Kenya
18 October 2013
David Kenani MaragaD. K. MaragaWilliam OukoW. OukoAMA. K. Murgor
2,011 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can recover vehicle repair costs with a detailed assessor's report, even without receipts proving payment.

What this practically means

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Executive summary

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The Court of Appeal (Maraga, Ouko and Murgor, JJ.A.) dismissed the appellants' appeal against the special damages awarded to Sagoo Radiators Limited by Ang'awa J of the High Court at Nairobi on 23rd March 2004 in HCCC No. 149 of 1995. The respondent's motorcycle, ridden by Buldev Chagar, collided with the appellants' vehicle KAC 632 W in September 1994; liability was entered 100% against the second appellant with the first appellant vicariously liable. The trial court awarded Kshs.312,294.40 for spare parts based on an assessor's itemized report, declining other items. On appeal, the appellants contended the damages were neither specifically pleaded nor strictly proved, that repair costs were awarded although total loss had been pleaded, and that no receipts or payment vouchers proved actual expenditure. The Court restated the rule that special damages must be specifically pleaded and strictly proved, but, following its decision in Nkuene Dairy Farmers and Bowen LJ in Ratcliffe v Evans, held that in a material damages claim the claimant need only show the extent of the damage and the cost of restoring the item. The assessor's unchallenged itemized evidence specifying each part and its cost sufficed; absence of receipts did not defeat the spare parts claim. Affirming the High Court's judgment, the Court found no reason to interfere and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether an assessor's estimates, without receipts or payment vouchers, constitute strict proof of special damages for vehicle repair costs

Holding

Yes - where the assessor's itemized report specifies each damaged part and its cost, and that evidence is unchallenged, the claim is sufficiently pleaded and proved and the absence of receipts does not defeat it

Reasoning

The assessor testified and produced an itemized list of spares with the cost of each part. That evidence went unchallenged by the appellants, whose counsel nonetheless cross-examined. The trial court adopted the spare parts figure only, rejecting unproven items. The Court held this satisfied the rule that special damages be specifically pleaded and strictly proved, applying the Nkuene Dairy approach that material damage claims require showing the extent of damage and the cost of restoration, not actual expenditure.

p. 4
02

The standard of proof and pleading for special damages

Holding

Special damages must be specifically pleaded and strictly proved, but the degree of certainty and particularity required is regulated by the character of the acts producing the damage and the surrounding circumstances

Reasoning

The Court restated the Hahn v Singh formulation and adopted Bowen LJ in Ratcliffe v Evans: as much particularity and certainty must be insisted on in pleading and proof of damage as is reasonable having regard to the circumstances and nature of the acts. Applied to a material damages claim, this permits proof by expert assessment rather than invoices of actual payment.

p. 3
03

The appellate court's duty on a first appeal

Holding

A first appellate court must re-evaluate the evidence afresh and draw its own conclusions while making due allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Company as restated in Jivanji v Sanyo Electrical Company Ltd, the Court framed its function as re-evaluating the evidence de novo subject to the disadvantage of not observing the witnesses. It applied this standard before concluding there was no basis to disturb the trial court's award.

p. 2

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved, the degree of certainty and particularity depending on the circumstances and nature of the acts
  • In a material damages claim, special damages need not be shown to have been actually incurred; the claimant need only show the extent of the damage and the cost of restoring the damaged item, which may be established by an assessor's itemized report
  • The duty of a first appellate court is to re-evaluate and examine afresh the evidence and arrive at its own conclusion, making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Judgment and decree of the High Court awarding special damages of Kshs.312,294.40 upheld

Authorities

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Cases cited (8)

  • Khan vs Singh
    (1985) KLR 716
  • Ali vs Nyambu T/a Sisera Stores
    (1990) KLR 534
  • The London Corporation
    (1935) CA 70
  • Usha vs Bachubhai & Others
    (1965) EA 433
  • Selle vs Associated Motor Boat Company
    (1968) EA 123
  • Jivanji vs Sanyo Electrical Company Ltd
    (2003) KLR 425
  • Nkuene Dairy Farmers Coop Society Limited & James Kimathi vs Ngacha Ndeiya
    (2010) eKLR
  • Ratcliffe vs Evans
    (1892) 2 QB 524
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 149 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal under the Court's appellate jurisdiction (statutory first appeal from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Mohammed Ali & another v Sagoo Radiators Limited [2013] KECA 163 (KLR)", Case Analysis (2013). Civil Appeal No. 231 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/163/eng@2013-10-18

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