Huko v Aiveo Distributors Ltd & 2 others (Claim E036 of 2024) [2024] SCC 25 (KLR)

4. The 1st and 3rd Respondent entered appearance denying the particulars of negligence attributed to them by the Claimant. 5. On 03rd September 2024, the Claimant and the 2nd Respondent compromised the 2nd Respondent’s application dated 02nd September 2024 in terms that the 2nd Respondent be struck ofi from this claim with no orders as to costs. 6. On 28th October 2024, the Claimant, the 1st Respondent and the 3rd Respondent recorded a consent on liability in the ratio of 80%:20% in favour of the Claimant. The parties also consented to this claim being heard through section 30 of the Small Claims Court Act. Issues for Determination 7. This court has duly considered the pleadings, documents, submissions and authorities relied on by the parties herein. The only issue up for determination is quantum. Quantum of Damages 8. In paragraph G of the Claim, the Claimant pleaded the particulars of loss and damage as follows:a. Towing charges - Kshs. 15,000/= b. Motor vehicle records - Kshs. 550/= c. Repair costs -Kshs. 237,941.37/= d. Loss of User – Kshs. 183,000/= Total…….. Kshs. 435,941/= 9. The damages above sought by the Claimant are in the nature of special damages. It is well settled in law that special damages must be pleaded and proved. 10. The Claimant produced a receipt for a copy of records for Kshs. 550/= (Cexh. 8), receipts for motor vehicle/taxi hire (Cexh.6) for Kshs. 183,000/=, motor vehicle towing receipts (Cexh.9) for Kshs. 15,000/= and a Motor vehicle Accident Assessment Report (Cexh.10). 11. The production of the receipts and exhibits above was not challenged by the 1st and 3rd Respondents. 12. From the evidence adduced, the expenditure that was pleaded and proved by way of receipts was: 13. a. Towing charges - Kshs. 15,000/= b. Motor vehicle records - Kshs. 550/= Repair Costs 14. The Claimant relied on the Motor Vehicle Assessment Report (Cexh.10) to support his claim that he needed Kshs. 237,941.37/= to repair his motor vehicle. The Claimant did not produce any receipts to evidence that his motor vehicle was repaired at the cost set out in Cexh.10. 15. Was the non-production of motor vehicle repair receipts fatal to the Claimant’s claim for repair costs? https://new.kenyalaw.org/akn/ke/judgment/scc/2024/25/eng@2024-11-18 2

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16. In Nkuene Dairy Farmers Co-operative Society & Anor v Ngacha Ndeiya (2010) eKLR, the Court of Appeal held-: “ 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.” 17. Likewise, the Court of Appeal in David Bagine v Martin Bundi (1996) eKLR, in asserting the probative value of an assessor’s report reiterated that: “ The Assessor’s report was suficient proof and the failure to provide receipts for any repairs done was not fatal to the respondent’s claim” 18. Guided by the authorities above, it follows that Cexh.10 that was not challenged by the 1st and 3rd Respondents proved to the required standards that the Claimant was to repair his motor vehicle at Kshs. 237,941.37/=. Loss of User 19. The Plaintifi also prayed for loss of user of his motor vehicle for three (3) months at a cost of Kshs. 183,000/= as evidenced by the receipts (Cexh.6). A reading of Motor Vehicle Assessment Report (Cexh.10) shows that the Claimant’s motor vehicle was to be repaired for at most five (5) days subject to availability of necessary replacement parts. 20. Given that this matter proceeded by way of section 30 of the Act, the Claimant did not lead evidence to show why he took three months to repair his motor vehicle instead of the five (5) days set out in Cexh.10. 21. In a claim for loss of use, the Plaintifi is expected to demonstrate how he mitigated his loss. The Court of Appeal in African Highland Produce Ltd v John Kisorio (2001) eKLR while addressing on all fours the question of mitigation of loss stated thus:“ It is the duty of the plaintifi to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues. He cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintifi realizes that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those of the defendant. The plaintifi is under no obligation to injure himself in his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to minimize the damages or embark on dubious litigation. The question of what is reasonable for a plaintifi to do in mitigation of his damages is not a question of law but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.” 22. This court is of the considered view that in the absence of an explanation by the Claimant on why it took him three (3) months to mitigate his loss, this court must exercise its discretion to make a reasonable award for loss of User. https://new.kenyalaw.org/akn/ke/judgment/scc/2024/25/eng@2024-11-18 3

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23. Considering the total cost of the repairs, this court is of the considered view that had the Claimant been diligent enough in mitigating his loss, he would have repaired his motor vehicle within at most thirty (30) days. That would mean that the Claimant would have hired a taxi for his mobility at a reasonable cost of Kshs. 2,000/= per day. 24. In the circumstances, this court makes an award of Kshs. 60,000/= for loss of user. Disposition 25. Given the foregoing, judgment is entered against the 1st and 3rd Respondents jointly and severally for:- 26. a. Towing charges - Kshs. 15,000/= b. Motor vehicle records - Kshs. 550/= c. Repair costs -Kshs. 237,941.37/= d. Loss of User – Kshs. 60,000/= Total…….. Kshs. 313,491.37/= Less 20% Net Award…..Kshs. 250,793.10/= 27. The award above will accrue interest at court rate from the date of this judgment till payment in full. The cost of this claim is assessed at Kshs. 20,000/=. Decree to issue forthwith. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT KITALE THIS 18TH DAY OF NOVEMBER 2024 T.O. OMONO ADJUDICATOR In the presence of: Masai h/b for Savatia for the Claimant Appiah for the 1st & 3rdRespondents N/B: This court notes that during the delivery of this judgment virtually in the presence of counsel for the parties, there was an error in the computation of the damages due to the claimant. The error has been corrected under the slip rule with the consequence that the Claimant’s award is reviewed from the award of Kshs. 349,193.10/= to the award of Kshs. 250,793.10/= https://new.kenyalaw.org/akn/ke/judgment/scc/2024/25/eng@2024-11-18 4

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