Waomba v West Kenya Sugar Co. Ltd

3. The respondent, in its statement of defence dated 4th March, 2012, denied the averments contained in the plaint. It averred that, if any accident occurred, which was denied, the same was occasioned by the sole and/or contributory negligence of the appellant, particulars whereof were set out in the defence. 4. By a consent recorded on 1st August, 2014, the parties compromised liability in the ratio of 90:10 in favour of the appellant, leaving only the issue of quantum of damages for determination. In its judgment dated 28th November, 2014, the trial court observed that the respondent did not contest the claims for Kshs. 16,000/= being the assessor's fees and Kshs. 20,000/= for towing charges. The disputed claims were those for the cost of repairs and loss of business. 5. Regarding the cost of repairs, the trial court found that the appellant had failed to produce receipts to prove that the repairs had been undertaken and paid for. It held that, in the circumstances, the appropriate measure of damages was the pre-accident value of the motor vehicle less its salvage value. However, since the assessment report produced by the appellant did not indicate the salvage value, the court declined to make any award under that head. As regards loss of business, the court was satised that the claim of Kshs. 150,000/= was reasonable and proved, and accordingly allowed it. Consequently, the court awarded the appellant Kshs. 186,000/=, comprising Kshs. 16,000/= for assessment charges, Kshs. 20,000/= for towing charges and Kshs. 150,000/= for loss of business, less 10% contributory negligence, resulting in a net award of Kshs. 167,400/=. 6. Aggrieved by this decision, the appellant lodged a rst appeal before the High Court of Kenya at Kakamega. In its memorandum of appeal dated 9th December, 2014, the appellant challenged the decision of the trial magistrate on the sole ground that the learned magistrate erred in law and in fact in holding that the cost of repairs had not been proved. 7. In a judgment dated 29th November, 2019, Musyoka, J. dismissed the appeal. The learned Judge held that the claim for repair costs constituted special damages which had to be specically pleaded and strictly proved. He found that the only evidence adduced in support of the claim was an assessment report estimating the cost of repairs, but no receipts or other documentary evidence were produced to prove the actual repair costs incurred. Accordingly, the learned Judge concluded that the appellant had failed to discharge the burden of proving the claim and upheld the decision of the trial court. 8. Still dissatised, the appellant lodged this second appeal, advancing the same grounds of appeal as in the rst appeal, namely, that the learned Judge erred in law in arming the trial court's nding that the appellant had failed to prove the cost of repairs. 9. The appeal was canvassed by way of written submissions. Mr. Mulama learned counsel appeared for the appellant. It was his submission that the High Court misapprehended the evidence on record and thereby reached an erroneous conclusion. He contended that the appellant had discharged the requisite burden of proof on a balance of probabilities by producing an assessor's report estimating the repair costs at Kshs. 285,128/= and by testifying that the vehicle was repaired and returned to service. He further submitted that the respondent did not adduce any evidence to controvert the appellant's evidence or the contents of the assessment report. 10. According to the appellant’s counsel, the assessment report was sucient proof of the extent of the damage and the cost of restoring the vehicle, and it was unnecessary to produce receipts evidencing actual expenditure. He further argued that the vehicle had not been assessed as a write-o and, therefore, the trial court erred in applying the measure of damages based on the pre-accident value less salvage value. He maintained that the courts have previously held the proposition that in claims for material damage, an assessor's report may suce to prove the cost of repairs without the production of repair receipts. He urged the Court to allow the appeal with costs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1980/eng@2026-09-25 2

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11. The respondent did not participate in this appeal though served. 12. This being a second appeal, our duty was well stated in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR, where this Court held: “ In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, connes 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. In the case of Stephen Muriungi and another vs. Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366: “We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is conned to questions of law only, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of law or mixed ndings of fact and law, and, it should not interfere with the decisions of the trial or rst appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 13. Having evaluated the record of appeal, the appellant’s submissions, and the applicable law, we hold the view that this appeal turns on whether the appellant proved the special damages claimed as repair costs. 14. The appellant faulted the learned Judge for insisting on proof by receipts, contending that the assessment report estimating the cost of repairs at Kshs. 285,128/=, coupled with his oral testimony that the vehicle was repaired and returned to the road, was sucient proof of the claim. He further argued that the respondent did not tender evidence to controvert that evidence. 15. It is common ground that the appellant's motor vehicle was damaged in the accident. Indeed, the parties had already compromised liability by consent in the ratio of 90:10 in favour of the appellant. The only issue pursued in this appeal, was the claim of Kshs. 285,128/= for repair costs that was denied by the two courts below. 16. The learned trial magistrate declined to award that sum principally because the appellant had not produced receipts to demonstrate that the repairs had been undertaken and paid for. The learned Judge, on rst appeal, upheld that conclusion, holding that the claim constituted special damages which had to be specically pleaded and strictly proved. 17. We agree with the learned Judge that the amount claimed by the appellant for cost of repairs to his damaged motor vehicle was a claim for special damages and required to be specically pleaded and proved. In Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR) this Court observed thus: “ It is trite law that special damages must not only be specically pleaded, they must also be strictly proved with as much particularity as circumstances permit.” 18. In Odera t/a AJ Odera & Associates v Machira t/a Advocates [2013] KECA 208 (KLR); “ It is now trite that theses must be specically pleaded and strictly proved. See the case of Hann v Singh (1985) KLR 716 wherein the Court of Appeal held inter alia that;- https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1980/eng@2026-09-25 3

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“Special damages must not only be specically claimed but also strictly proved. The degree of certainity and particularity of proof depend on the circumstances and the nature of the acts themselves.” 19. The question, however, is what constitutes sucient proof in a claim of this nature. Since this was a material damage claim, what the appellant was required to establish is the extent of the damage and what it would cost to restore the damaged property as nearly as possible to its pre-accident condition. The appellant was required to produce receipts of the actual spare parts purchased and the amount paid to the professional mechanics to undertake the repairs. This was more so when the cost of the repairs were assessed to exceed the pre-accident value of the motor vehicle. 20. As correctly observed by the learned Judge, it would have served the appellant better in his claim if he had claimed the value of the written o motor vehicle less the salvage value. Once the appellant made the choice of action to pursue the cost of repairs instead of the value of the motor vehicle, it behooved him to prove that he actually purchased the said spare parts and paid for its repairs. The two courts below reached a similar nding in that regard. We see no misapprehension or misapplication of the law as to entitle this Court to interfere with the concurrent ndings of fact by the two courts below. 21. The appellant’s case is distinguished from the position taken by this Court in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR). In which this Court observed as follows: “ In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty.” 22. In the present appeal, the appellant opted to pursue the claim for cost of repairs when the said amount exceeded the pre- accident value of the motor. Once he took this course of action, he had to specically establish that he indeed purchased the said parts to justify the court to make a nding. 23. From the foregoing reasons, it is clear that the appeal is for dismissal. The nding made by the two courts below is sound both on the assessment of facts and the applicable law. 24. The same is hereby dismissed but with no orders as to costs since respondent did not participate in the appeal. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ............................ JUDGE OF APPEAL H.A. OMONDI ........................ JUDGE OF APPEAL L. KIMARU ........................ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1980/eng@2026-09-25 4

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JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1980/eng@2026-09-25 5

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