https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/736

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI** **CIVIL CASE NO. E327 OF 2022** **ALAN OKIOT ANYUMBA...........................................................PLAINTIFF** **-VERSUS-** **BENEDETTE NDUTA KABERA..................................................DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff vide a Plaint dated 25th January ,2022 instituted this suit against the Defendant seeking Special Damages arising from a road traffic accident involving Motor Vehicles Registration Numbers **KCF 090Q** and **KBJ 072H**, together with costs of the suit and interest. 2. The Plaintiff's case is that on 27th January 2019, motor vehicle registration number KCF 090Q was involved in a road traffic accident with motor vehicle registration number KBJ 072H along Waiyaki Way near Total Petrol Station. The Plaintiff attributed the accident to the negligence of the Defendant, who was the owner and driver of motor vehicle KBJ 072H. 3. The Defendant filed a statement of defence denying liability. She pleaded that the accident was caused solely or substantially by the negligence of the driver of motor vehicle KCF 090Q. **The Plaintiff's Case** 1. The Plaintiff called three witnesses. 2. PW1, Dennis Mwongera Mugwoko, testified in support of the Plaintiff's case. He was a motor vehicle assessor and his evidence substantially concerned the assessment and repair of Motor Vehicle KCF 090Q. 3. PW1 testified that following the accident, he assessed the damage to the motor vehicle and prepared an assessment report. He placed the cost of repairs at **Kshs. 76,659/=**. He produced the assessment and repair documents and confirmed that the motor vehicle was subsequently repaired. 4. During cross-examination, PW1 confirmed that he did not witness the accident and that his evidence concerning the accident was based on the documents and records available to him. He nevertheless maintained that the assessment and repair documents supported the Plaintiff's claim. 5. PW2, **Ian Mutwiri Mbae**, testified that he was a Legal Officer at Old Mutual. He adopted his witness statement and produced the relevant insurance, assessment and payment documents. 6. PW2 testified that the insurer had indemnified its insured for the loss occasioned by the accident. He produced documents relating to the insurance cover, assessment, repairs and payment of the expenses incurred. 7. PW2 confirmed that the insurer made payments to Toyota Kenya Limited for the repair of the vehicle, to Integrated Motor Assessors for re-inspection and to Sunrays General Services Limited for tracing and investigation. 8. In cross-examination, PW2 confirmed that he did not witness the accident and that part of his evidence was based on documents and records maintained by the insurer. He maintained, however, that the payment documents demonstrated that the insurer had incurred the claimed expenses. 9. PW3, **No. 78125 George Owuor Rapelo**, a Police Officer attached to Muthangari Traffic Base, testified concerning the occurrence and investigation of the accident. He produced the police abstract and stated that motor vehicles KCF 090Q and KBJ 072H were involved in the accident. 10. PW3 testified that the Defendant's motor vehicle, KBJ 072H, reversed and hit motor vehicle KCF 090Q. He attributed blame for the accident to motor vehicle KBJ 072H. 11. PW3's evidence was that the point of impact was consistent with the damage on the right-hand side of motor vehicle KCF 090Q. 12. The Plaintiff's case was therefore that the Defendant's negligence caused the accident and that the insurer had indemnified its insured for the material damage and related expenses, thereby entitling it to recover the amount paid under the doctrine of subrogation. **The Defendant's Case** 1. The Defendant called 2 witnesses. 2. The Defendant, Benedette Nduta Kabera, testified as DW1. She adopted her Witness Statement and maintained that she was not responsible for the accident. 3. DW1 testified that on 27th January 2019 at about 3.30 p.m., she was driving Motor Vehicle KBJ 072H, a Toyota Vitz, along Waiyaki Way. She entered a Total Petrol Station near Njuguna's to refuel. 4. According to DW1, after refuelling and as she was preparing to leave the petrol station, Motor Vehicle KCF 090Q hit her vehicle from behind, causing damage. 5. DW1 maintained that the driver of motor vehicle KCF 090Q was wholly responsible for the accident. She further testified that the driver of the other motor vehicle left the scene before the police arrived. 6. DW1 testified that she thereafter proceeded to Muthangari Police Station, where she found that the accident had already been reported. She maintained that no police officer visited the scene. 7. DW2, Cecilia Musomba, substantially corroborated DW1's evidence. She testified that she was with DW1 on the material day when they entered the Total Petrol Station to refuel. 8. DW2 stated that after the vehicle had been refuelled and as they were preparing to leave, motor vehicle KCF 090Q hit motor vehicle KBJ 072H from behind. 9. She maintained that motor vehicle KCF 090Q was responsible for the accident and that no police officer visited the scene. 10. The Defendant consequently maintained that the Plaintiff had failed to prove negligence and urged the Court to dismiss the suit. **The Plaintiff's Submissions** 1. The Plaintiff submitted that the evidence established that the accident was caused by the negligence of the driver of Motor Vehicle KBJ 072H. 2. The Plaintiff relied on Sections 107, 108 and 109 of the Evidence Act and submitted that the evidence of PW3, the police abstract and the assessment documents established the Defendant's liability. 3. It was submitted that PW3 testified that the Defendant's motor vehicle reversed and struck motor vehicle KCF 090Q on its right-hand side. The Plaintiff submitted that this evidence was consistent with the assessment report and photographs showing the damage sustained. 4. The Plaintiff relied on **Nandwa v Kenya Kazi Limited [1988] eKLR**, on the doctrine of *res ipsa loquitur*, and submitted that the circumstances of the accident permitted an inference of negligence. 5. The Plaintiff further relied on **Julita Akinyi Ouma v Hillpark Investment Company Limited & another [2022] eKLR** and **Francis Mutito Murungi v Jotham Mugalo & Telkom [2016] eKLR**, and submitted that the police abstract and police evidence constituted significant evidence which had not been sufficiently rebutted by the Defendant. 6. The Plaintiff further referred to the Highway Code and submitted that a driver reversing or manoeuvring a vehicle is under a duty to ensure that the way is clear. 7. On the claim for special damages, the Plaintiff submitted that the insurer had proved payment through the assessment reports, invoices, payment advices and other documentary evidence. 8. The Plaintiff submitted that the following payments were made: 9. Repairs to Toyota Kenya Limited – **Kshs. 72,692/=**; 10. Re-inspection by Integrated Motor Assessors Limited – **Kshs. 2,625/=**; and 11. Investigation and tracing expenses paid to Sunrays General Services Limited – **Kshs. 24,400.00** 12. The Plaintiff relied on **Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya [2010] eKLR**, and submitted that in a material damage claim, the assessment report may be sufficient to establish the reasonable cost of repairing the damaged property. 13. The Plaintiff further relied on **Kenya Power & Lighting Company Limited v Julius Wambale & another [2019] eKLR**, **Leli Chaka Ndoro v Maree Ahmed & S.M. Lardhi [2017] eKLR** and **Muchiri v Holiday Cars and Tours Limited [2023] KEHC 20761 (KLR)** on the doctrine of subrogation. 14. It was submitted that once an insurer indemnifies its insured, it is entitled to step into the shoes of the insured and pursue recovery from the party responsible for the loss. 15. The Plaintiff relied on **Hahn v Singh [1985] eKLR** and submitted that the special damages had been specifically pleaded and strictly proved. 16. The Plaintiff consequently prayed for Special Damages of **Kshs.99,717/=**, together with costs and interest. **The Defendant's Submissions** 1. The Defendant on the other hand submitted that the Plaintiff bore the burden of proving negligence on a balance of probabilities. 2. Reliance was placed on **Eastern Produce (K) Limited v Christopher Atiado Osiro, Civil Appeal No. 43 of 2001**, and **Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991]**, for the principle that there is no liability without fault and that negligence must be specifically proved. 3. The Defendant submitted that the Plaintiff did not call the driver of motor vehicle KCF 090Q, who was the person best placed to explain how the accident occurred. 4. It was further submitted that PW1 and PW2 did not witness the accident and that their evidence could not prove the manner in which the accident occurred. 5. The Defendant challenged the evidence of PW3 and submitted that no sketch map or other contemporaneous evidence was produced to demonstrate the positions of the vehicles or the precise manner in which the accident occurred. 6. The Defendant relied on **Motex Knitwear Mills Limited v Gopitex Knitwear Mills Limited, HCCC No. 834 of 2002**, **A. Otar Singh Bahra & Another v Raju Govindji, HCCC No. 548 of 1998**, **Trust Bank Ltd v Paramount Universal Bank Ltd & 2 others, HCCC No. 1243 of 2001**, and **Interchemie EA Ltd v Nakuru Veterinary Centre Ltd, HCCC No. 1658 of 2000**, on the principle that pleadings without supporting evidence remain mere statements. 7. The Defendant also relied on **William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526** and submitted that the Plaintiff had not discharged the burden of proof. 8. On special damages, the Defendant submitted that the claim had not been strictly proved. It was argued that no receipts for spare parts were produced and that the tracing expenses of **Kshs. 24,400.00** were unnecessary. 9. The Defendant therefore urged the Court to dismiss the Plaintiff's suit with costs. **Analysis and Determination** 1. Having considered the Pleadings, evidence and submissions of the parties, I am of the view that the following issues arise for determination: 2. Whether the Plaintiff proved negligence against the Defendant; 3. Whether the Plaintiff is entitled to the special damages claimed; and 4. Who should bear the costs of the suit. ## **Liability** 1. The burden of proving negligence lies upon the party alleging it. Sections 107, 108 and 109 of the Evidence Act provide that the burden of proof lies upon the person who would fail if no evidence were adduced on either side. The standard of proof in civil cases is on a balance of probabilities. 2. The applicable legal position was stated in **Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991]**, where the Court held that there is no liability without fault and that a Plaintiff must prove negligence against a Defendant where the claim is founded on negligence. Similarly, in **Eastern Produce (K) Limited v Christopher Atiado Osiro, Civil Appeal No. 43 of 2001**, the Court reiterated that negligence must be specifically pleaded and proved. 3. In the present case, the Plaintiff relied principally on the evidence of PW3, who was the investigating officer, and the police abstract. PW3 investigated the accident and testified regarding his findings on the manner in which the collision occurred. 4. PW3 testified that the Defendant's Motor Vehicle Registration Number KBJ 072H reversed and collided with Motor Vehicle Registration Number KCF 090Q. He attributed blame to Motor Vehicle KBJ 072H and testified that the point of impact was consistent with the damage sustained by Motor Vehicle KCF 090Q. 5. The Defendant's evidence was, however, directly contradictory. DW1 and DW2 maintained that Motor Vehicle KCF 090Q hit Motor Vehicle KBJ 072H from behind while the latter was preparing to leave the petrol station. 6. The Defendant challenged the Plaintiff's case on the basis that no sketch map was produced. While PW3 was the investigating officer and his evidence is therefore material, the absence of a sketch map or other scene evidence affects the Court's ability to independently verify the precise position and movement of the two vehicles immediately before the collision. 7. I have also considered the police abstract relied upon by the Plaintiff. In **Julita Akinyi Ouma v Hillpark Investment Company Limited & another [2022] eKLR** and **Francis Mutito Murungi v Jotham Mugalo & Telkom [2016] eKLR**, the courts held that a police abstract is admissible and relevant evidence of the occurrence of an accident and the particulars recorded therein, but it is not conclusive evidence of negligence or liability. 8. The police abstract must therefore be considered alongside PW3's oral evidence as the investigating officer and the evidence of DW1 and DW2. 9. The Court is faced with two directly contradictory accounts of the accident. PW3, the investigating officer, attributed blame to Motor Vehicle KBJ 072H. On the other hand, DW1 and DW2 maintained that Motor Vehicle KCF 090Q collided with the Defendant's vehicle from behind. 10. I have also considered the fact that the driver of Motor Vehicle KCF 090Q did not testify. He was the person best placed to explain the precise circumstances leading to the collision. His failure to testify leaves a gap in the Plaintiff's evidence regarding the immediate circumstances of the accident. 11. In **Lakhamshi v Attorney General [1971] EA 118**, the Court recognised that where the evidence does not enable the Court to determine with certainty that one party was solely responsible for an accident, the Court may apportion liability between the parties where the circumstances justify such an approach. 12. Similarly, in **Hussein Omar Farah v Lento Agencies [2006] eKLR**, the Court of Appeal held that where it is impossible to determine from the evidence which of two drivers was more to blame, an equal apportionment of liability may be appropriate. 13. In the present case, PW3's evidence as the investigating officer supports the Plaintiff's contention that Motor Vehicle KBJ 072H reversed into Motor Vehicle KCF 090Q. However, the evidence of DW1 and DW2 provides a competing account that the Plaintiff's vehicle collided with the Defendant's vehicle from behind. In the absence of the Plaintiff's driver and a sketch map or other evidence conclusively resolving the conflict, I am unable to find that either party was solely responsible for the accident. 14. I therefore find that both drivers contributed to the occurrence of the accident. This finding is consistent with the principles in **Lakhamshi v Attorney General [1971] EA 118** and **Hussein Omar Farah v Lento Agencies [2006] eKLR**. 15. Accordingly, I apportion liability at **50:50** between the Plaintiff and the Defendant. ## **Quantum** 1. The Plaintiff's claim arises from the material damage sustained by Motor Vehicle Registration Number KCF 090Q following the accident. The Plaintiff seeks recovery of the repair costs, re-inspection charges and tracing and investigation expenses incurred as a consequence of the accident. 2. The claims fall within the category of special damages. The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. In **Hahn v Singh [1985] eKLR**, the Court of Appeal held that:Special damages must be specifically pleaded and strictly proved. 3. The Plaintiff relied on the oral and documentary evidence of PW1 and PW2, including the assessment report, repair documentation, invoices, payment records and documents relating to the tracing and investigation expenses. 4. The Plaintiff's evidence was that the motor vehicle sustained damage in the accident and was subsequently assessed and repaired. The repair costs were proved to have totalled **Kshs. 76,659/=**. 5. I have considered the evidence relating to the individual items claimed. The documentary evidence established that the insurer made payment for the repairs, while the repair and assessment documents supported the expenditure incurred in restoring the motor vehicle following the accident. 6. The Defendant challenged the claim on the basis that receipts for spare parts were not produced. However, the absence of individual receipts for every spare part is not necessarily fatal where the evidence as a whole establishes the nature of the damage, the assessment undertaken, the repairs carried out and the amount actually paid. 7. In **Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya [2010] eKLR**, the Court recognised that an assessment report may constitute sufficient evidence of the reasonable cost of restoring damaged property, depending on the evidence placed before the Court. I am satisfied that the evidence of the assessment, repair documentation and payment records sufficiently establishes the repair costs of **Kshs. 76,659.00** **Re-inspection Expenses** 1. The Plaintiff also claimed a sum of **Kshs. 2,900.00** in respect of re-inspection charges. The evidence shows that Integrated Motor Assessors Limited submitted an invoice or request for payment for Kshs. 2,900.00. 2. However, an invoice or request for payment, by itself, is not evidence that the amount was actually paid. The Plaintiff was required to demonstrate, through a receipt, payment advice, bank record or other satisfactory evidence, that the sum of Kshs. 2,900/= was paid. 3. No such evidence of payment was produced. The re-inspection expense of **Kshs. 2,900.00** was therefore not strictly proved and is disallowed. **Tracing and Investigation Expenses** 1. The Plaintiff further claimed Kshs. 24,400.00 in respect of tracing and investigation expenses. 2. The Plaintiff produced an invoice from Sunrays General Services Limited for the tracing and investigation services undertaken. The evidence also established that the amount of Kshs. 24,400.00 was paid. 3. I am satisfied that this claim was specifically pleaded and strictly proved. The tracing and investigation were undertaken in connection with the identification and establishment of the party responsible for the loss following the accident. The expense was therefore sufficiently connected to the accident and the subsequent pursuit of recovery. 4. I accordingly allow the claim of Kshs. 24,400.00for tracing and investigation expenses. **Doctrine of Subrogation** 1. The evidence further established that the payments for the repair of the insured motor vehicle and the tracing and investigation expenses were made by the Plaintiff's insurer following the occurrence of the accident. 2. The applicable principle is the doctrine of subrogation, which entitles an insurer, upon indemnifying its insured, to stand in the shoes of the insured and pursue recovery from the party responsible for the loss. 3. In **Kenya Power & Lighting Company Limited v Julius Wambale & another [2019] eKLR**, the Court explained that where an insurer has compensated an insured for a loss caused by a third party, the insurer acquires the right to pursue the remedies that were available to the insured against the wrongdoer. 4. Similarly, in **Leli Chaka Ndoro v Maree Ahmed & S.M. Lardhi [2017] eKLR**, the Court recognised the right of an insurer, after indemnifying the insured, to pursue the third party responsible for the insured loss. 5. In **Muchiri v Holiday Cars and Tours Limited [2023] KEHC 20761 (KLR)**, the Court upheld recovery under the doctrine of subrogation where there was evidence that the insurer had paid the costs of repairing the insured motor vehicle. 6. In the present case, the Plaintiff's insurer paid for the loss arising from the accident. By virtue of the doctrine of subrogation, the insurer was entitled to pursue the rights and remedies available to the insured against the Defendant. The fact that the insurer made the payment does not defeat the claim. The action is brought for the benefit of, and in the name of, the insured in accordance with the principles governing subrogation. 7. The Plaintiff has therefore established the following Special Damages: 8. Repair costs............................................................ Kshs. 76,659.00 9. Re-inspection charges........................Kshs.2,900... not proved and disallowed; 10. Tracing and investigation expenses .....................Kshs. 24,400.00 **Total .....................................................................Kshs. 101,059.00** 1. Since liability has been apportioned at **50:50**, the Plaintiff is entitled to 50% of the proved Special Damages. 2. The amount payable is therefore: **Kshs. 101,059/= × 50% = Kshs. 50,529.50.** **Conclusion** 1. Having considered the Pleadings, Evidence, Submissions and the applicable law, I find that both parties contributed equally to the occurrence of the accident. 2. Liability is therefore apportioned at **50:50** between the Plaintiff and the Defendant. 3. The Plaintiff has proved Special Damages in the sum of **Kshs. 101,059/=**. The claim for re-inspection charges of Kshs. 2,900/= was not strictly proved, there being no evidence that the invoiced amount was paid. 4. The Plaintiff is entitled to recover the amounts paid by its insurer under the doctrine of subrogation, subject to the established apportionment of liability. **Disposition** 1. In the result, Judgment is entered for the Plaintiff against the Defendant as follows: 2. Liability is apportioned at 50:50 between the Plaintiff and the Defendant. 3. The proved Special Damages are Kshs.101,059/=. 4. The Plaintiff is awarded Kshs. 50,529.50/=, being 50% of the proved Special Damages. 5. Interest on the Special Damages shall accrue at court rates from the date of filing suit until payment in full. 6. The Plaintiff shall have 50% of the costs of the suit. 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **26.8.2026** **RULING DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH AUGUST ,2026** **In the presence of :** Mr.Muindi Holding Brief for Mr.Gesare for the Plaintiff Mr.Mokaya for the Defendant Court Assistant: Phoebe.