Joseph Gichuki Waweru v Tahir Sheikh Transporters Limited & another [2018] KECA 277 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that vehicle repair claims must be backed by actual receipts, not estimates, and interest runs from the trial court's judgment.
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 first appellate court erred in interfering with the discretion of the trial court in awarding damages for cost of repairs of the motor vehicle and reducing the amount awarded by the trial magistrate
- 2.Whether the first appellate court erred in awarding interest from the date of the judgment of the High Court instead of the date of filing suit
- 3.Whether the first appellate court erred in failing to award the appellant any costs for the appeal
Key legal issues
#Scope of a second appeal under section 72(1) of the Civil Procedure Act
The second appeal raised issues of law; the first appellate court was entitled to re-evaluate the evidence and correct the trial magistrate's error in awarding estimated rather than actual repair costs.
Section 72(1) confines a second appeal to grounds that the decision below was contrary to law, failed to determine a material issue of law, or involved a substantial procedural error. The Court adopted the Kenya Breweries formulation confining second appeals to matters of law, and held the High Court acted within its mandate as a first appellate court, which is by way of a retrial, when it recalculated the amounts awarded in light of the evidence produced.
Proof of special damages for cost of repairs
The award for cost of repairs is a special damages claim to be specifically proved; the actual amount expended, as itemized in the receipts, governs, not the assessor's estimated figure.
An award of damages is meant to compensate the plaintiff for the actual loss suffered and to put him in the position he would have been in had the loss not occurred; it is not meant to be a source of profits. The High Court correctly found the trial magistrate should have calculated the itemized amounts in the receipt (Kshs.1,369,600) rather than relying on the global figure matching the repair estimates.
Commencement date of interest on the decretal sum
Where the trial magistrate awarded interest without specifying an effective date and the first appellate court did not disturb that order, interest runs from the date of the trial court's judgment, not the High Court's judgment.
The appellant's plaint sought interest 'at such rates and for such a period as the court deemed fit' and did not plead interest from the date of filing suit. Since the High Court left the trial court's interest order intact, fairness dictated that interest accrue from the date the interest was awarded, being the trial court's judgment. The Court allowed the appeal on this ground only.
Costs of the High Court appeal
The High Court's order that each party bear its own costs of that appeal, made under its discretion where the appeal partially succeeded, disclosed no misdirection warranting interference.
Costs follow the event but remain in the discretion of the court under section 27(1) of the Civil Procedure Act. The learned judge had reasoned that since the appeal only partially succeeded, each party should bear its own costs. The Court of Appeal found nothing to show the discretion was not properly exercised and declined to intervene on a second appeal.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law unless the two courts below considered matters they should not have considered, failed to consider matters they should have considered, or the entire decision is perverse.
- A claim for damages for cost of repairs of a vehicle is a special damage claim that must be specifically proved, and the compensable amount is the actual, not the estimated, cost of repairs.
Court orders
#- 1.Appeal allowed to the limited extent that interest on the decretal sum shall run from the date of judgment of the trial court, not the date of the High Court judgment
- 2.Appellant awarded half the costs of this appeal
- 3.Grounds challenging the reduction of the award for cost of repairs and the order on costs of the High Court appeal dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Civil Appeal No. 112 of 2014
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal lying to the Court of Appeal from every decree passed in appeal by the High Court)
Relief refused
#Restoration of the trial magistrate's award for cost of repairs of Kshs.1,607,600
The claim was a special damage claim that had to be specifically proved; the High Court properly found the award was based on estimated rather than actual repair costs
Interference with the High Court's order that each party bear its own costs of the High Court appeal
The learned judge properly exercised her discretion under section 27(1) of the Civil Procedure Act
Costs
We award the appellant half the cost of this appeal. (In the High Court appeal, the order below that each party shall bear his/its own costs was not disturbed.)
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.
The upshot of the above, is that this appeal succeeds only to the limited extent in regard to costs, which we allow and order the respondents to pay interest from the date of judgment of the trial court. We award the appellant half the cost of this appeal.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
The claim for damages for cost of repairs of the vehicle was special damage claim that had to be specifically proved.
In a first appeal, the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyze it, evaluate it and come to some independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analyzed afresh.
it was only fair and just that the payment of interest on the decretal sum should be from the date when the interest was awarded which is the date of the trial court’s judgment, and not the date of the judgment of the High Court.
Issues in the judgment
#The judgment refers to 'section 2(1) of the Civil Procedure Rules', using the term 'section' for subsidiary rules and an apparently inapt provision number for a grant of discretion on interest; the reference appears internally imprecise.
The judgment inconsistently renders the same authority as 'Kenya Breweries Limited vs Godfrey Odoyo' and 'Kenya Breweries vs Geoffrey Odoyo', varying the first name of the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gichuki Waweru v Tahir Sheikh Transporters Limited & another [2018] KECA 277 (KLR)", Case Analysis (2018). Civil Appeal No. 88 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/277/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.