Eliud Maniafu Sabuni v Kenya Commercial Bank

High Court, at Bungoma

July 25, 2002

Ringera J

Civil Case No 37 of 2002

Damages - special damages - collision between vehicles - defendant wholly blamed - plaintiff entitled to either cost of repair or value thereof - plaintiff claiming value of the vehicle and loss of user - whether damages in the nature of special damages - whether damages must be pleaded with particularity and strictly proved - plaintiff’s duty to mitigate the loss.

Damages - for loss of user of motor vehicle - Time for which loss be assessed - what will constitute a reasonable time - no evidence as to the exact quantum of loss- degree of proof required.

The Plaintiff sued the Defendant claiming value for his damaged vehicle and damages for loss of user following a collision between his vehicle and that of the Defendant. The Plaintiff’s vehicle had been written off and from the evidence it had been established that the Defendant was wholly to blame for the accident. The Plaintiff claimed compensation for loss of user at the rate of Kshs. 4,000/= from the day of the accident to the day the judgment was delivered although he did not produce evidence that the amount of Kshs. 4,000/= represented his daily income from the use of the vehicle.

Held:

1. When the tort complained of has resulted in damage to the chattel, the Plaintiff is entitled to either the cost of repair thereof or to the value thereof and any consequential loss which is not too remote, subject to the Plaintiff’s duty to mitigate the loss.

2. Both types of loss are in the nature of special damages and the law is settled beyond peradventure that such damages must be pleaded with particularity and strictly proved.

3. Once the Plaintiff has been compensated for the value of the motor vehicle he cannot then claim for damages for loss of user thereof subsequently as that would clearly be double compensation.

 4. The Plaintiff whose chattel is damaged by the tortuous act of the Defendant is entitled to damages for loss of user thereof for a reasonable time and what is reasonable time is a matter of evidence in a particular case.

5. The Plaintiff had not proved the exact quantum of the loss of income to the degree of proof required of special damages

. Cases

1. Asonga, Deina & 2 Others v MS Padam & another Eldoret H.C.C.C. No 72 of 1993

 2. Bagine, David v Martin Bundi Civil Appeal No 283 of 1996

 3. African Highlands Produce Ltd v John Kisorio Civil Appeal No 264 of 1999

4. Mwamba Transport Co Ltd v Kenindia Assurance Co Ltd High Court Civil Case No 6859 of 1991

Statutes

 No statutes referred.