Mark Khan Transporters Ltd. v Peter Mbugua
The bottom line
#Kenya's Court of Appeal confirmed that loss of vehicle use must be pleaded and strictly proved as special damages, and it won't disturb factual findings on second appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether special damages were properly pleaded and proved
Special damages were specifically claimed in the pleadings with particulars given, and evidence including daily income records supported the claim, so the award was properly upheld.
The pleadings clearly showed the special damages claim with particulars. Proof was by a book of the matatu's daily income and repair receipts covering the number of days out of use. The two lower courts made concurrent findings on this evidence, which the Court cannot disturb on second appeal, especially where the appellant offered no evidence at trial.
Whether loss of use must be pleaded and strictly proved as special damages
Loss of use must be claimed as special damages and proved strictly; unlike Waweru v Ndiga where it was claimed as general damages with no particulars, here it was specifically pleaded and proved.
The Court distinguished Waweru v Ndiga, where the damages were claimed as general damages with no particulars. Here the loss of use was specifically claimed as special damages in the pleadings, and the two lower courts were satisfied with the documentary evidence. The facts of the present case were therefore clearly distinguishable, and the award was proper.
Whether 37 days for repairs was a reasonable period for loss of use
Reasonableness of the repair period is a question of fact with no rule of thumb; the two courts below found 37 days reasonable and it was not shown to be manifestly excessive.
The appellant contended 7 days was reasonable but offered no evidence at trial. Timsales v Up & Down Saw Mills, on mitigation within a reasonable time, was illustrative only; the duty here was to effect repairs within a reasonable time, which the respondent discharged. The concurrent finding of 37 days stood absent demonstration of manifest excess.
Scope of a second appeal
Matters of fact, including the admissibility and weight of evidence on income records, do not attract the intervention of the Court on a second appeal.
Counsel for the respondent correctly submitted that the appellant's grounds raised issues of fact based on evidence, which fall outside the mandate of the Court on second appeal. The appellant also never objected to the production of the exhibits at trial and never gave evidence in support of its defence, so no legal issue was demonstrated.
Legal principles established
#- On a second appeal the Court will not interfere with concurrent findings of fact by the two lower courts; only matters of law attract its intervention.
- Loss of use of a vehicle must be claimed and proved strictly as special damages; where it was specifically pleaded and supported by evidence, the award stands.
- A Court of Appeal will not normally interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.
- What is a reasonable period for repairs or mitigation is a question of fact to be determined case by case; there is no rule of thumb.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Bungoma
- H.C.C.C. No. 7 of 1999
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Khan Transporters Ltd. v Peter Mbugua", Case Analysis (2009). Civil Appeal 311 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/212/eng@2009-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.