Kamau v County Government of Tana-River & another (Civil Suit 11 of 2019) [2020] KEMC 15 (KLR)

for Kshs. 3,000/= ofioading fees. The plaintifi had no option to pay the same because he did not want to inconvenience the owner. 4. The plaintifi particularized the transport expenses and loss of use of motor vehicle in Paragraph 9 of the plaint dated 09.08.2019 as follows: a. 24th July, 209 hire for transport---------------------------------------Kshs. 20,000/= b. 31st July, 2019 hire for transport--------------------------------------Kshs. 20,000/= c. 7th August, 2019 hire for transport-----------------------------------Kshs. 20,000/= d. 8th August, 2019 hire for transport-----------------------------------Kshs. 20,000/= Kshs. 80,000/= e. Loss of use of motor vehicle as from 17/7/2019 To 9/8/2019 ......Kshs 480000/= TOTAL----------------------------------------Kshs. 560,000/= 5. The plaintifi contends that the said demand of Kshs. 3,000/= alleged to be ofioading fees and the payment of the same is not provided for in the 1st Defendant’s by-laws in terms of revenue collection as a result which therefore the clamping of the motor vehicle is illegal hence he has been deprived the right of commercially using or utilizing his motor vehicle and further that payment for ofioading fees which is not provided for is tantamount to justifying an illegality. 6. The plaintifi is therefore praying for judgment to be entered against the defendants jointly and severally for: 7. a. An order directing and compelling the defendants by themselves, their agents, servants, representatives, assigns or any other person claiming under them to unclamp the Plaintifi’s motor vehicle Registration Number KBY 397 G Make Mitsubishi Canter which is clamped and parked at the Plaintifi’s Grocery shop situated and located next to the Hola Old Slaughter House in Hola Town within Tana River County. b. A permanent order of injunction restraining the defendants by themselves, their agents, servants, representatives, assigns or any other person claiming under them from claiming and demanding an alleged and purported ofioading fee or cess of Kshs. 3,000/= apart from the required parking fees of Kshs. 200/= and be further restrained from clamping or illegally detaining the Plaintifi’s motor vehicle Registration Number KBY 397 G Make Mitsubishi Canter within Hola Town or any other place within Tana-River County. c. An order directing and compelling the Defendants to jointly and severally compensate the plaintifi for loss of use of the motor vehicle at the rate of Kshs. 20,000/= per day from the date of clamping of the motor-vehicle until the date of unclamping the same and costs incurred in hiring transport services at the rate of Kshs. 20,000/= per hire. d. Costs of the suit and interest thereon Contemporaneous to the Plaint, the plaintifi brought a Notice of Motion application for similar temporary orders as in (a) and (b) above, against the defendants. The application dated 09.08.2019, was however disposed of by consent on 16.08.2019, where the plaintifi paid Kshs. 3,000/= fees to the court after which the vehicle was released to him. The money is the Kshs. 3,000/= revenue fees in dispute herein, and is held in court pending the final adjudication on the same. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/15/eng@2020-09-15 2

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8. The defendants thereafter failed to file and serve their defense on time and judgment was therefore entered against them for the sum of Kshs. 560,000/= claimed by the plaintifi. In other prayers, interlocutory judgments were entered pending proof of the same from the plaintifi. These ex parte judgments were however lifted, by consent of both parties, on 30.01.2020. The defendants subsequently filed and served their statements of defense. 9. In the Statement of Defense dated 29.01.2020, the defendants aver that the Kshs. 3,000/= demanded from the plaintifi was for cess/market fees as provided for in section 6 read together with the 4th Schedule of Tana River County Finance Act. That on the material day, the defendants were on their routine patrols when they identified the defendant’s motor vehicle herein. That as per routine, they requested proof of cess payments from the plaintifi which he failed to present and instead vehemently vowed not to pay cess. 10. That as a result, the defendants had no option but to clamp the plaintifi’s motor vehicle so as to prevent further violation of the law. That the clamping of the vehicle was therefore necessitated by the plaintifi’s own misgivings and illegalities. The defendants further denied all the other allegations in the plaint and called for strict proof thereof. 11. The defendants thereafter never participated in the proceedings herein despite having been notified and made aware of the case conference on 24.08.2010 and the hearing of 26.08.2020. The plaintifi was therefore allowed to proceed ex parte. 12. He testified as the sole witness in his case. In his evidence, PW1, he stated that he was ofioading the vehicle when the 2nd defendant came and ordered him to pay Kshs. 3,000/= ofioading fees. That he declined saying that he was only willing to pay Kshs. 200/= parking fees. That the 2nd defendant went ahead to clamp his vehicle for a period of 32 days. That he continued to ofioad the goods despite the clamping of the vehicle. He then went to report to the police and also to the 1st defendant demanding to be charged in a court of law if at all he had breached any law. That the 1st defendant still refused to have him charged but rather continued to clamp his vehicle. He therefore decided to file this suit against them. He was meanwhile forced to hire another vehicle for transportation at a rate of Kshs. 20,000/ = per trip. He hired the vehicle 4 times during the period when his vehicle was immobilized. He also lost Kshs. 20,000/= per day during the period when he was unable to use his vehicle. He testified that apart from his own use in his business, he used to transport goods to National Youth Service (NYS), Bura using the vehicle. He is therefore claiming Kshs. 80,000/= used to hire another vehicle and Kshs. 20,000 x 32 days for the loss of use of his vehicle. He produced the log book for his vehicle as PEXH. NO. 1 which proves that he co-owned it, Single Business Permit from the 1st Defendant as PEXH. NO. 2, to prove that he operated a grocery business at the time, two photographs of the vehicle as PEXH NOS 3A and 3B and receipts of hire of vehicle as PEXH. Nos 4A, 4B, 4C and 4D. He also paid a fee of Kshs. 3,000/= to the defendants for the hired vehicle vide a receipt which he produced as PEXH. NO. 5. He issued a demand notice to the defendants before instituting this suit vide PEXH. NO. 6. He claims that the Statement of Defense herein be dismissed because the same appears to have been filed herein just for fun. Issues for Determination 13. There is no dispute herein that the plaintifi’s lorry was clamped as claimed. There is also no dispute that the clamping was because of the failure by the plaintifi to pay Kshs. 3,000/=. The issue for determination is whether the defendant was justified to demand the Kshs. 3,000/= from the plaintifi and whether the consequences of non-payment, which has been proved herein, was the clamping or immobilizing the vehicle as has been proved herein. In a nutshell, was the defendants’ action lawful? https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/15/eng@2020-09-15 3

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Determination 14. I do agree with the defendants that under section 6 of the Tana River County Finance Act read together with the 4th Schedule of the same Act, the plaintifi herein having confirmed to have been transporting groceries, was liable to pay cess of Kshs. 3,000.=. However, the receipt issued to the plaintifi for a similar Kshs. 3000/= for the hired motor vehicle KCE 014 A, which payment was demanded and paid for in similar circumstance, was for parking and ofioading and not for cess. I have not seen any provision in the Act for payment of Kshs. 3,000/= parking and ofioading fees. I do therefore find no basis for the defendants’ action against the plaintifi. Moreover, the course of action as provided for in the Act is prosecution in a court of law and not clamping of a vehicle. I do therefore find that the plaintifi has proved his case against the defendants herein to the required standard and do hereby allow the prayers for injunction and restraining orders sought. 15. There was however the issue of damages. The plaintifi vides PEXH. NO. 5, has proved that he incurred Kshs. 20,000/= per day for hiring another vehicle to transport his goods for his business for 4 days. He however stated, and it was not disputed that he also used to supply goods to NYS using his vehicle. There was however no specific evidence of the earnings he lost when he was unable to supply the goods using his vehicle. This being special damages, pleading was not enough. The plaintifi ought to have adduced specific evidence of supply order etc. that he failed to meet on account of the disablement of his vehicle by the defendants. I do therefore find no proof to the requisite degree of certainty required in proof for special damages herein on account of loss of use of the vehicle herein save for as proved in PEXH NOS 4A, 4B, 4C and 4D, being supply of goods for the plaintifi from Nairobi to Hola, and not supply of goods by the plaintifi to NYS. I do therefore dismiss the other aspect of the plaintifi’s claim for loss of user for lack of proof. The receipt for hire of a vehicle from Nairobi to Hola on 4 occasions within a span of 32 days cannot be said to certainly prove the loss of daily use of the plaintifi’s vehicle to supply goods to Bura on a daily basis. There was however evidence that the defendants were duly notified of the intention to institute this suit. I do therefore award the costs of this suit to the plaintifi. Final Disposal Orders 16. In the circumstances, I do hereby make the following orders: a. A permanent order of injunction is hereby issued restraining the defendants by themselves, their agents, servants, representatives, assigns or any other person claiming under them from claiming and demanding an alleged and purported ofioading fee of Kshs. 3,000/= apart from the required parking fees of Kshs. 200/= b. The defendants are further hereby restrained from clamping or illegally detaining the Plaintifi’s motor vehicle Registration Number KBY 397 G Make Mitsubishi Canter within Hola Town or any other place within Tana-River County. c. An order is hereby issued directing and compelling the Defendants to jointly and severally compensate the plaintifi for loss of use of the motor vehicle at Kshs. 80,000/= being the proved special damages loss of use. d. Costs of this case and interest on the sum above at court rates. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 15TH DAY OF SEPTEMBER ,2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/15/eng@2020-09-15 4

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In the presence of; Plaintifi: Absent 1st Defendant’s Representative: Absent 2nd Defendant: Absent Plaintifi’s Counsel: Absent Defense Counsel: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/15/eng@2020-09-15 5

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