Noor v Abdulahi (Civil Appeal E013 of 2025) [2026] KEHC 11179 (KLR) (22 July 2026) (Judgment)

Noor v Abdulahi (Civil Appeal E013 of 2025) [2026] KEHC 11179 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11179 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E013 of 2025 MA Odero, J July 22, 2026 Between Abdikahiya Noor Appellant and Ali Abdi Abdulahi Respondent Judgment 1.The Appellant herein Abdi Kahiya Noor filed this Memorandum of Appeal dated 10th March 2025 seeking the following orders:-“(a)That the appeal be allowed.(b)That the judgment of 26th February 2025 be set aside and the Court be pleased to reassess the special damages payable to the Appellant.(c)That the costs of the Appeal be awarded to the Appellant” 2.The Respondent Ali Abdi Abdullahi opposed the appeal. The matter was canvassed by way of written submissions. The Appellant filed the submissions dated 19th January 2026 whilst the Respondent relied upon his written submissions dated 23rd February 2026. Background 3.The Plaintiff (now the Appellant) filed in the Lower Court a suit by way of a plaint dated 16th December 2021 seeking judgment against the Defendant (now the Respondent) for“(a)The sum of Kshs. 4,020,070/= with interest from the date of filing this suit until payment in full.(b)Costs of the suit with interest at court rates.” 4.The Respondent opposed the suit through a statement of Defence dated 25th April 2022. 5.The Plaintiff was the registered owner of the motor vehicle Registration KCP 320J whilst the Respondent was the registered owner of a vehicle Registration KCD 471 Q. The Plaintiff averred that on or about 2nd January 2019, the plaintiff’s motor vehicle KCP 320T was being driven along the Nyeri-Nanyuki Road when the Defendant or his agent negligently drove motor vehicle KCD 471 Q causing it to collide with the Plaintiff’s vehicle. That as a result of that collision extensive damage was occasioned to the plaintiff’s vehicle. The particulars of the Defendant’s negligence were particularized at paragraph 5 of the plaint. The plaintiff sought damages in the amount of Kshs. 4,020,070/=. 6.On their part the Defendants denied that the accident took place at all. The defendant stated without prejudice that it was the plaintiff’s vehicle KCP 320T which was being driven negligently and causing the accident. The Defendant denied the particulars of negligence set out in the plaint and denied that the plaintiff’s motor vehicle was damaged at all. The Defendant further challenged the plaintiff’s claim under the doctrine of subrogation. 7.The suit was heard in the lower court and vide a judgment delivered on 26th February 2025, Hon. E. ANGIMA, Senior Resident Magistrate partially allowed the plaintiff’s claim and made the following awards;-(i)Special damages at - Kshs. 52,200/=(ii)Towing Fees - Kshs. 34,800/=(iii)Tracing Fees - Kshs. 17,400(iv)Costs of the suit with interest at court rates awarded to the Plaintiff. 8.Being aggrieved by this decision the plaintiff filed this appeal which is premised upon the following grounds:-“1.That the Learned Trial Magistrate erred in law and in fact by denying the Appellant special damages of Kshs. 3,956,860.2.That the Learned Trial Magistrate misdirected herself and based her findings of special damages on wrong considerations.3.That the Learned Trial Magistrate erred and failed to appreciate the principles applicable in the award of special damages thus, misdirected herself by awarding special damages to the Appellant that were manifestly lower than what was pleaded for in the circumstances.4.That the Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s submissions and judicial authorities on special damages in material damage claim thereby arriving at an erroneous figure on quantum.5.That the Learned Trial Magistrate erred in law and in fact for failing to award interest on special damages from the date of filing the suit until payment in full.” Analysis And Determination 9.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 10.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.LAs we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..” 11.On the question of liability the trial court found the driver of the Respondents vehicle to be 100% liable for the accident. PW2 PC ALI ABDI RAHMAN is the officer who produced the police abstract dated 16th January 2019 as an exhibit PExb 2. PW2 told the court that it was established that the defendants motor vehicle Registration KCD 471Q caused the accident by failing to keep to its lane leading to a head on collision. The police recommended that the driver of the vehicle KCD 471 Q be charged. In the circumstances I find that the finding of 100% liability against the defendant was correct and I am not inclined to disturb that finding. 12.The claim being made by the Appellant was a claim for special damages. In her judgment the learned trial magistrate found that the Insurance Company could not claim through the plaintiff under the doctrine of ‘Subrogation’ citing lack of evidence that the Plaintiff (the Insured) was compensated as pleaded. Further the trial court took issue with the fact that the Insured did not testify in court to confirm and or deny the payment. 13.The principle of subrogation applies where there is a contract of insurance and is in effect when the insurer settles the insured’s claim, whereby it sets out to diminish the loss suffered by its insured by seeking compensation from the party who caused the loss. The insurer is put in the position of the insured and is entitled to claim compensation from the 3rd party tortfeasor and, the compensation is not more than what has been paid to the insured. The doctrine of subrogation was defined by the Court in the case of Egypt Air Corporation v Suffish International Food Processors (U) Ltd and Another [1999] 1 EA 69 as –“The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity and gains its operative force from payment under that contract; the essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.” [Own emphasis] 14.The elements to be fulfilled for the doctrine of subrogation to apply were set out in Kenya Power & Lighting Company v Julius Wambale & another (2019) eKLR where the court stated as follows;“The parameters within which the principle ofsubrogation applies are now well settled. The doctrine applies where there is a contract of insurance and, following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.” 15.Thus from the foregoing authorities, the Appellant herein needed to prove that the claim was a basic and original contract of indemnity between themselves and the Insured, instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance. Whereas the actual contract of indemnity has not been produced, it was cited in the police abstract as Policy NumberNo. 2018-200-9001-90-11839. 16.PW2 a police officer, gave evidence on the police abstract. 17.PW1 Patrick Kanyi was the legal officer working with GA Insurance (the Insurer). In his written statement dated 26th July 2024 (see Page 73 of the Record of Appeal) PW1 stated that the Appellant held at the time of the accident a valid insurance cover from GA Insurance Limited. He gave the policy number as P-2018-200-9001-90-11839. The Respondent did not deny the existence of this contract. 18.I therefore find that it had been proved on a balance of probabilities that there was in existence a valid insurance policy in place issued to the Appellant by G.A. Insurance Limited. 19.The Insurer instituted the suit in the name of the insured. The fact that the Insured gave a written statement dated 16th December 2021 (Page 8 of the Record) is proof that the Insured consented to the institution of the suit. In the case of Richard Vs Njeru [2021] eKLR the Court stated that:-“It is evident that the suit in the Lower Court was filed in the name of the insured and he gave his consent. This is evident from the fact that he deposed to the contents of the verifying affidavit confirming the correctness of the averments in the plaint.” 20.Similarly in this case the Verifying affidavit dated 16th December 2021 (Page 6 of the Record) was deponed by the Insured Abdikahiya Noor, thereby confirming the averments in the plaint. As such I find that the learned trial magistrate erred in finding that the Plaintiff’s failure to testify in court negated the claim. I find that the Plaintiff effectively confirmed the claim through the verifying affidavit. 21.It is trite law that special damages must not only be specifically pleaded but must also be strictly proved by way of credible evidence. In HAHN -VS- SINGH KLR the Court held that:-“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 22.The trial court disallowed part of the claim citing lack of evidence. However there exists clear evidence that the Insurer made the payment in question. The said payments were proved through the receipts found at pages 17,25,27,28,29,43,45,46,49 and 54 of the record of appeal. Page 17 reveals that Kshs. 6,960/- was made to Autoscope International Limited. At page 27 reveals a payment made to Zayan Agencies Ltd for Kshs. 34,800/- by the Insurance Company. At page 28 reveals a payment made by the insurance company (with the appellant being the insured) of Kshs. 28,140/= to Fact Finder. At page 29 reveals a payment made by the insurance company (with the appellant being the insured) to Pygates Insurance Investigations Company for for Ksh 31,500/-. At page 43 reveals a payment made by the insurance company (with the appellant being the insured) to Zayan Agencies for Kshs. 33,000/-. At page 45 reveals a payment made by the insurance company (with the appellant being the insured) to Autoscope Insurance Limited for Kshs. 4,418,400/-. At page 46 reveals a payment made by the insurance company (with the appellant being the insured) to Autoscope Insurance Limited for Kshs. 6,325/-. 23.Likewise at page 49 reveals a payment made by the insurance company (with the appellant being the insured) to Pygates Insurance Investigations Co. Ltd for Kshs. 29,850/-. At Page 54 reveals a payment made by the insurance company (with the appellant being the insured) for Fact Finders Investigations & assessors for Kshs. 26,695/-. Finally Page 25 is a discharge voucher made to Abdul Kahiya Noor Maalim/Ali Cars from the insurance company for Kshs. 4,418,400/- for loss from an accident involving motor vehicle KCP 320T. The learned trial magistrate rejected this discharge voucher on grounds that there was no authorization from the plaintiff to Ali Cars Limited. However the discharge voucher indicates that the plaintiff Abdul Kahiya Noor Maalim is named as a recipient and the voucher clearly indicates that it is in respect of an accident that occurred on 22nd January 2019. 24.It is clear therefore at contrary to the finding by the trial magistrate the above payments, forming part of the claim for special damages were indeed proved and ought to have been allowed. 25.I note that in their written submissions dated 19th January 2026 the Appellant confirmed that the salvage of the motor vehicle was sold to a third party for Kshs. 500,000. As such the amount they claim would be less this sum being Kshs. 3,918,400. 26.Finally I do find merit in this appeal. The same is allowed and I find that the Appellant’s claim for special damages for Kshs. 3,918,400 is recoverable from the Respondent. 27.In conclusion I set aside the judgment dated 26th February 2025. In its place this Court makes the following orders;-(i)Judgment be and is hereby entered for the Appellant (plaintiff) against the Respondent (Defendant) in the amount of Kshs. 3,918,400/= plus costs of the suit as well as interest at court rates from the date of judgment in the Lower Court. DATED IN NYERI THIS 22ND DAY OF JULY 2026..…..…………………..MAUREEN A. ODEROJUDGE