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Tamno v Simon & 2 others (Civil Appeal 22B of 2021) [2023] KEHC 1690 (KLR) (10 March 2023) (Judgment)
Neutral citation:
[2023] KEHC 1690 (KLR)
Republic of Kenya
Civil Appeal 22B of 2021
DKN Magare, J
March 10, 2023
Between
Methuselah Tamno
Appellant
and
Kuria Simon
1st Defendant
Sammy Nduma Thuku
2nd Defendant
Blair Koskei
3rd Defendant
Judgment
1.This is a fairly straight forward appeal. The same is over a sum of Ksh 142,552 which were repair charges. The same arose from the assessment by Diplomatic assessors who stated that Ksh 142,552 is required for repairs. Instructions were given to the garage to repair. Diplomatic assessors re-assessed repairs and was paid Ksh 1,900/=. Plus VAT making a total of Ksh 2,320/=.
2.In its judgment the court entered judgment for Ksh 18,150 made up ofa.5,250 exhibit 3b.1000 – 2 Receipts of 5000 each exhibit 8.c.1900 – Payment to diplomatic assessors, exhibit 910,000/= - payment in exhibit 10
3.The appellant complains if the court disregarding evidence on total repair costs.
Duty of the Appellate Court
4.The duty of the 1st Appellant Court was settled long ago by Client De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Seen and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-
Appellant’s Submissions
5.The Appellant relied on the decision of Herbert Hahn v Amrik Singh [1985] EKLR
6.He argues that the assessor’s report was adequate and relies on the authority of Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR, where the clurt of asppeal held as doth: -
7.They posited that it was not necessary to prove that the repairs were actually carried out. He posited that the appellant was not legally bound to prove the claim through receipts.
Respondents Submissions
8.The respondent started their submissions by relying on Justice Chitembwe’s decision in Leli Chaka Ndoro v Maree Ahmed & SM Lardhib [2017] eKLR, where the court stated: -
9.They argue that the insurance should have repaired before claiming against the tortfeasor. Therefore, given that the report was produced by consent, then there is no prove that repairs took place.
Analysis
10.Both parties are correct on the law but fail to appreciate a very small detail. the Court of Appeal has indicated that receipts are not necessary to proof damage. That is the correct law and is binding on this court. However, that law does not answer the question in the court.
11.What is the nature of the claim before court? In the circumstances, understanding the nature of the claim settles the question whether the case was proved.
12.It is equally true that the insurance must incur expenses begot seeking subrogation. Both parties ignore the very same detail that converges their answers and solves he imbroglio and leads to a perfect answer.
13.The answer is not a one million dollar question but a 2,320 one. Tacked inside the Plaint is an expense that clears the air whether repairs were carried out or not. A sum of Ksh 2, 320/= was paid to the assessors for re-assessment of the vehicle once repairs were carried out. This sum was allowed by the court, albeit without tax, there was no appeal about re-inspection fees.
14.Therefore, once repairs were estimated and the vehicle re-inspected, it is a forgone conclusion that the repairs were carried out. It is true the cheque for the said amount was not produced. It does not mean that it was not done this is not a criminal case but civil. It is whether it is probable or not that it could have happened. There is no explanation for re-assessment fees other than repairs.
15.The issue of burden of proof in civil cases was succinctly dealt with in Eastern Produce (K) Ltd – Chemomi Tea Estate v Bonfas Shoya [2018] eKLR as doth: -
16.Given that the same was paid by the insurance, then it follows all these were the result of fall up by the insurer. An Njenga of diplomatic assessors in his re- assessment report indicated repairs of 145,232/= were carried out and the said amount was due to seas motors and spares Nakuru.
17.These are the document produced by consent of parties. This means the Respondent did not have question s on them. It cannot be turned around because one was not cross examined, then there were no repairs. The duty remains with the defendant to cross examine. By admitting the assessment and re- assessment reports, ipso fact cannot challenge the same.
18.The Court dismissed the claim for 142, 552 on basis where no receipts. I do not know the basis where the Court found that receipts are necessary to proof special damages.
19.What is required of the parties in relation to special damages is to strictly plead and proof. Although I note that the Applicants pleadings may not be the best, the sum of Ksh 142,552/= is specifically pleaded by repair charges. So are the other expenses.
20.The Second witness testified that the garage was instructed. These repair were done in accordance with the assessment report. The same as re-assessed and found to be satisfactorily repaired. The Quantum of repairs was set out in the assessment report.
21.The parties there in agreement that the motor vehicle was involved in an accident. If the Respondent had issues with repair charges, they will have cross examined the re-assessment by diplomatic assessors. As they stand, the repairs reported in the assessment report there done. There is no requirement for receipts. The only thing required is shows that the repairs were carried out and the liability for repair discharged.
22.I am therefore satisfied that the Court fell into error in discounting not only the amount of Ksh 142,552 but all the other amount pleaded in the paint.
23.I note that the Court gave premium to receipts in such a way that in matters where an invoice of Ksh 6.300/= is raised only the net amount is captured. This amount related to tax withheld were lost. The requirement of the law as set out in the court of appeal decisions is not that expenses be receipted but they be strictly proven. It is that spirit that the Court of Appeal stated in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] Eklr.
24.In the circumstances, it is clear repairs were carried out and shouldered by the insurer. The assessment and re[assessment were done by professionals. On re-assessment, repairs were done according to assessment. Although there were other repairs to be carried out, they have not been claimed.
25.In the circumstances I set aside Judgment on special damages and in lieu therefore enter judgment for the Appellant for the Respondent for: -a.Repair costs 145,232/=b.Assessment fees 6,300/=c.Re – inspection fees 2,320/=d.Towing charges 10,000/=e.Copy of recordes 500/=164, 352
26.I disallow the expense of Ksh 200 as the police abstract is indicated to be provided for free. I also award costs of the lower court to the Appellant to be assessed or agreed.
27.The appellant having been successful, I award cost of the appeal of Ksh 60,000/=
28.The Judgment sum shall attract interest from the date of filling.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 10TH DAY OF MARCH, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.HON. MR. JUSTICE DENNIS KIZITO MAGAREJUDGE OF THE HIGH COURT, MOMBASAIn the presence of:…………………………………………………………for the Appellant…………………………………………………….... for the RespondentsNancy Bor – Court Assistant.
