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ELRCPartially AllowedAppeal from Nakuru CMCC No. 86 of 2009· [2014] KEELRC 475 (KLR)

Lawrence Maina Gatiga & another v Daniel Wachira Karitu [2014] KEELRC 475 (KLR)

High Court of Kenya at Nakuru
16 May 2014
HOH. A. Omondi
1,593 words in judgment
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The bottom line

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The High Court slashed a Nakuru road accident award from over Kshs.1.3 million to Kshs.102,000 because repair claims lacked receipts.

What this practically means

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Executive summary

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This is a first appeal by Lawrence Maina Gatiga and Zacharia Wachira Gitiga against a Nakuru CMCC judgment awarding Daniel Wachira Karitu special damages of Kshs.961,784/- plus costs and interest following a road traffic accident of 13/10/2008 in which the respondent's Isuzu Canter was damaged by a Toyota Hiace owned by the 2nd appellant and driven by the 1st appellant. The appellants did not contest liability or the occurrence of the accident, but contended that the repair costs of Kshs.543,784/= were proved only by an AA assessment report containing estimates, unsupported by receipts or invoices, and that the award of Kshs.387,900/= as lost income for three months was unproved and extravagant given the 18-day repair estimate. The court agreed that special damages must be proved by actual receipts and that estimates do not establish what was actually spent, noting the respondent gave no explanation for failing to obtain receipts from the repairer or the vehicle's subsequent purchaser. The repair award was set aside, with only Kshs.30,000/= for breakdown services awarded as proved by receipt. On loss of user, the court held receipts and invoices previously issued to customers were valid evidence of daily earnings, computed income at Kshs.4,000/= per day, accepted the 18-day repair period as reasonable, and substituted Kshs.72,000/=. The global award became Kshs.102,000/=, with each party bearing its own costs.

Key legal issues

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01

Proof of special damages for vehicle repair costs

Holding

The award of Kshs.543,784/= for repairs was set aside because only estimates from the AA assessment report were produced; only Kshs.30,000/= for breakdown services was proved by receipt

Reasoning

The court accepted the accident and damage were not disputed, but held that the assessment report and photographs were estimates of cost, not proof of actual expenditure. The respondent failed to explain why receipts could not be obtained from the repairer or subsequent purchaser despite selling the vehicle with its documents. Estimates could be higher or lower than actual spend, so they cannot discharge the burden of proving special damages. Only the Kshs.30,000/= breakdown fee was supported by a receipt.

p. 2
02

Proof and quantum of loss of user / lost income

Holding

Loss of user reduced from three months' Kshs.387,900/= to Kshs.72,000/= based on the assessor's 18-day repair estimate and daily earnings of Kshs.4,000/= derived from receipts and invoices

Reasoning

The court held receipts and invoices previously issued to customers were admissible evidence of daily income even though their exhibit number was not marked, an omission by the trial magistrate. Daily income was computed as Kshs.120,000/= divided by 30 days. The 18-day repair period estimated by the AA was accepted as reasonable, and no evidence showed the repairs took longer or that the respondent failed to mitigate. Loss of user was therefore recalculated at Kshs.4,000 x 18 = Kshs.72,000/=.

p. 3

Legal principles established

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  • Special damages must be specifically proved by actual receipts, not estimates
  • A financial statement is not the only means of proving daily income; receipts and invoices are equally useful

Court orders

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  1. 1.Set aside the award of special damages for repair costs as having no legal basis
  2. 2.Award Kshs.30,000/= proved by receipt for breakdown services (Exhibit 5)
  3. 3.Set aside the award for loss of user and substitute Kshs.72,000/= (18 days at Kshs.4,000/= per day)
  4. 4.Global award of Kshs.102,000/=
  5. 5.Each party to bear its own costs

Authorities

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Cases cited (2)

  • KEMFRO AFRICA LTD T/A MERU EXPRESS SERVICE, GATHOGO KANINI Vs A.M. LUBIA and OLIVE LUBIA
    C.A. No.21 of 1984
  • RATCLIFFE V EVANS
    (1892) 11 QB 254
On appeal from
Nakuru Chief Magistrate's Court
CMCC No. 86 of 2009
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Lawrence Maina Gatiga & another v Daniel Wachira Karitu [2014] KEELRC 475 (KLR)", Case Analysis (2014). Appeal from Nakuru CMCC No. 86 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/475/eng@2014-05-16

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