Kamauti (trading as Kanroy Rental Car) v Biribo [2023] KIHC 53; Civil Case 74 of 2017 (22 December 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 74 of 2017

BETWEEN
KARETITA KAMAUTI T/A KANROY RENTAL CAR
Plaintiff

AND
TIUTI BIRIBO
Defendant

Date of hearing 4 October 2023
Date of Judgment 22 December 2023

Appearances Plaintiff in person
No Appearance for and by the Defendant

J U D G M E N T

1. No appearance for and by the first defendant with no reasons given to this Court. The case was called on Thursday, 28 September 2023. The defendant was served, but he did not show up. The matter was adjourned to 4 October 2023 and the plaintiff was tasked to serve the defendant again. On 4 October, the plaintiff came but not the defendant. Proof of service was made for the defendant, so this Court is satisfied that the defendant was properly served but chose not to attend the court hearing with no reason given to the court.
   
2. This is an old case that started in 2017. The parties are based in Kiritimati Island, an island far from the capital, Tarawa, where the High Court is located. The High Court normally visited Kiritimati Island annually to deal with High Court cases. This case was first listed for hearing before the High Court in 2018, whereby the court dealt with the defendant’s application to set aside the default judgment entered against him on 12 January 2018. The High Court issued its order to set aside the default judgment on 21 May 2018. In 2019, this case was called again when the Court visited Kiritimati Island and the defendant applied for leave to amend his defence. His application was granted, and the plaintiff was given time to reply to the amended defence. No High Court circuit was made in 2020 due to COVID-19, as the borders were closed. In 2021, the High Court made a circuit to Kiritimati Island again; this case was called, but it was adjourned to the following visit of the Court as Counsel for the plaintiff gave notice of her absence, which was not objected to by the defendant’s Counsel.
   
3. This year, the High Court made a court circuit to Kiritimati Island, and this case was called again for hearing. As mentioned above, the case was called twice, but the defendant did not attend with no excuse. The hearing went ahead without the defendant after proof of service. The plaintiff and her husband tendered their affidavits to support their case. The affidavits form part of the plaintiff’s case.
   
4. The facts provided by the plaintiff and her husband by affidavits are as follows;
   
   • - On 25 June 2017, the defendant rented the truck from the plaintiff for two days at $250 per day.
   • - On 27 June 2017, the defendant returned the truck; the windscreen and the front part were damaged. The plaintiff and husband told the defendant to fix the truck; the truck was no longer fit for rental, so the plaintiff canceled the rental bookings for the truck by tourists. The plaintiff’s husband told the Defendant that since they cannot rent out the truck until it is fixed, the defendant should be liable for the loss of income from the rental. He agreed and said he would continue with the rental, and they signed another rental agreement with him to continue the rental and for him to return the truck after fixing it. The plaintiff’s husband advised him to order the new windscreen from JMB as they are fast.
   • - Defendant took the truck with him, and while it was in his possession, he sometimes made money from renting it to the people. Sometime later, the plaintiff and husband found out from JMB staff that the new windscreen that the defendant ordered arrived at JMB on 19 July, but the defendant had not paid for it.
   • - The plaintiff’s husband visited the defendant on several occasions demanding the money, but the defendant refused and said that he had ordered a new truck for the plaintiff. The plaintiff and her husband still demanded the money from him, but he told them they would solve it in court.
   • - On 20 October 2017, the plaintiff filed his writ of summons for the unpaid rental fees. The truck was still with the defendant when this case was filed.
   • - On 18 January 2018, the plaintiff’s husband saw the defendant driving the truck with a new windscreen, so he took the truck from him.
     
5. In the writ of summons, the plaintiff claims for the unpaid rent from 28 June to 20 October 2017 (the date of the writ). She also claims for the $250 per day continuity until the truck is fixed and returned, 5% interest per annum from the date of judgment until the date of payment, and the cost of taking up the case.
   
6. Since there is no challenge by the defendant to the evidence presented for the plaintiff, I accept the evidence that there was a second rental agreement signed and find the defendant liable for the unpaid rent. Unfortunately, the copy of the rental agreement was not tendered and was also not part of the plaintiff and husband’s affidavits, so the daily rate has not yet been confirmed. Damages will be assessed at a later date when the parties are ready. The plaintiff and defendant are given time to file their written submissions regarding the assessment of damages before the end of February 2024.
   

Order Accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice