https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8619

Gatumu v Shanga Engineering Works Ltd (Civil Appeal E038 of 2021) [2026] KEHC 8619 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8619 (KLR) Republic of Kenya In the High Court at Kajiado Civil Appeal E038 of 2021 CW Meoli, J June 18, 2026 Between Ben Nyaga Gatumu Appellant and Shanga Engineering Works Ltd Respondent (Being an appeal from the judgement delivered in Kajiado CMCC No. 788 of 2015 on 12th May 2020 - Kasera SPM) Judgment 1.Ben Nyaga Gatumu, the plaintiff in the lower court, and hereafter the Appellant, had by his plaint dated 17th December 2015 sued Shanga Engineering Works Limited (hereafter the Respondent). Seeking special damages in the sum of Kshs. 405,660/- for material damage allegedly caused to his vehicle in a road traffic accident that occurred on 21st December 2014 along the Isinya–Kitengela road at Korompoi. He averred that while he was driving his motor vehicle registration no. KBM 946W along the said road, the motor vehicle registration no. KBV 685S which was owned by the Respondent, attempted to overtake him and, upon encountering oncoming traffic, swerved back and collided into his vehicle from behind, causing extensive damage. He alleged negligence against the Respondent, as particularized in the plaint. 2.The Respondent entered appearance in January 2016 and filed a defence statement. Therein admitting ownership of the motor vehicle registration no. KBV 685S (hereafter the Respondent’s vehicle), but pleading that the accident was solely or substantially caused by the negligence of the driver of the Appellant’s motor vehicle registration no. KBM 946W (hereafter the Appellant’s motor vehicle). The Respondent averred that the driver of the Appellant’s driver attempted to overtake without confirming that it was safe to do so, before suddenly swerving back into the correct lane and rendering a collision inevitable. 3.Following the trial in the lower court, judgment was delivered on 12th May, 2020. By the judgment, the trial court found the Respondent liable for the road traffic accident, but declined to award the Appellant the entire sum claimed as special damages on the basis that the Appellant failed to prove the repair costs on a balance of probabilities. The court further directed that interest on the partial special damages awarded would run from the date of judgment rather than from the date of filing suit. 4.Aggrieved with the outcome, the Appellant preferred this appeal via the memorandum of appeal dated 30th July 2021 containing the following grounds:1.THAT the learned trial magistrate grossly misdirected himself in treating the evidence and submissions on material damage before him superficially and consequently coming to a wrong conclusion on the same.2.THAT the learned trial magistrate erred in law and fact when he held that the plaintiff had not on a balance of probability proved incurring repair costs at Kshs. 405,460/= despite overwhelming and uncontroverted proof vide the testimony of the motor vehicle assessor and assessment report filed in court.3.THAT the learned trial magistrate grossly misdirected himself in raising the bar/standard of proof herein to that of proof beyond reasonable doubt instead of proof on a balance of probability.4.THAT the learned trial magistrate erred in law and fact in failing to appreciate the guiding principles in awarding special damages and therefore arriving at an erroneous conclusion on the same.5.THAT the learned trial magistrate erred in law and fact when he unjustifiably held that interest on the special damages was to run from the date of judgment instead of from the date of filing of the suit notwithstanding the fact that this was a liquidated claim and therefore subject to the principles set out in Section 26 of the Civil Procedure Act, 2010.6.THAT the learned trial magistrate erred in failing to consider the submissions made by the plaintiff/applicant while wholly adopting the submissions of the defendant without proper justification’’. Submissions 5.Upon admission of the appeal, the court directed that the appeal be canvassed by way of written submissions. The Appellant’s submissions dated 24th September, 2025 condense and address grounds 1-4 and 6 together, in demonstrating that the trial court erred in holding that the Appellant had not proved repair costs amounting to Kshs. 405,460/- on a balance of probabilities. And separately regarding the 5th ground, that the trial court erred in directing that interest on special damages would accrue from the date of judgment rather than from the date of filing suit. 6.On the issue of proof of cost of repairs, the Appellant argued that the trial court misapprehended the law governing special damages in material damage claims. Counsel submitted that a claimant seeking the cost of restoring damaged property is not required to prove that repairs were actually undertaken. Reliance being placed on several authorities including Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya 2010 [Eklr] and Murage v Equity Bank Ltd (Civil Appeal 125 of 2023 [2024] KEHC 325), where the courts held that a motor vehicle assessor’s report constitutes sufficient proof of repair costs even in the absence of related receipts. The Appellant pointing out that the assessor’s evidence including his report were admitted without challenge and sufficiently established the extent of the damage and the estimated cost of repairs, thereby proving the claim on a balance of probabilities. 7.Regarding interest on special damages, the Appellant submitted that the trial court erred by awarding interest from the date of judgment rather than from the date of filing suit. Citing Section 26 of the Civil Procedure Act and decisions such as Sharrif Salim & Another v Malundu Kitakya [1989] eKLR and Fredrick Mageria Githinji v Charles Mwangi Muriithi [2021]eKLR, counsel argued that special damages constitute a liquidated claim and ordinarily attract interest from the date of filing because the claimant had already incurred the loss by that time. It was submitted that postponing interest until judgment unjustly deprived the Appellant of compensation for the loss of use of money that had become due at the time of institution of the suit. 8.The Appellant therefore urged the Court to find that the trial magistrate erred both in rejecting the claim for repair costs and in awarding interest from the date of judgment. The court was consequently urged to allow the appeal, set aside the impugned findings, award the proved repair costs of Kshs. 405,460/-, and order that interest on the special damages run from the date of filing the suit until payment in full. 9.The Respondents did not file submissions despite being granted time to do so. Analysis and Determination 10.The court has considered the record of appeal, as well as the parties’ respective submissions. This is a first appeal. The Court of Appeal for East Africa spelt out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:-“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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 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 allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 11.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278. 12.In considering the issue of damages, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. The same court stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] 1 KAR 5 that:-“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”. 13.During the trial, the Appellant testifying as PW1, had stated that on 24th February 2014 he was driving motor vehicle registration number KBM 946W from Isinya towards Kitengela when the Respondent’s vehicle, a pickup which was travelling behind him attempted to overtake at a point where there was an oncoming lorry. According to him, the pickup driver in a bid to avoid collision, squeezed between his vehicle and another vehicle, hence rammed into the right side of his vehicle and forced it into a ditch. Police visited the scene and conducted investigations. He produced the Vehicle Inspection Report (Exh.1) and Police abstract (Exh.2). PW1 stated that the Respondent’s vehicle driver was blamed for the accident. 14.Further testifying that damage to his vehicle was assessed, PW1 produced the following documents: the assessment receipt dated 21st January 2015 for the sum of Kshs. 3,500(Exh. 3(b)); the motor vehicle assessment report (Exh. 3(a); repair receipts from Old Work Motors (Exh. 4(a) and Exh. 4(b); a Copy of Records (Exh.5); Logbook (EXH.6); and Demand Letter dated 31 August 2014 (Exh. 7). Asserting that the driver of the Respondent’s motor vehicle was to blame for the accident, PW1 prayed for compensation and costs. 15.No. 75708 Corporal Bernard Bonyo of Isinya Police Station testified as PW2. He produced police records of the accident, including the summons (Exh.8) and confirmed that the accident involved motor vehicles KBM 946W (Ford) and KBV 685S (Nissan Navara). Further stating that according to police investigations, the Respondent’s motor vehicle was overtaking when it encountered an oncoming vehicle, and on swerving back rammed into the Appellant’s motor vehicle, causing it to veer off the road and hit a pedestrian. He confirmed that police had issued an abstract and that the driver of the Respondent’s motor vehicle was blamed for causing the accident. 16.A motor vehicle assessor with Kenya Pride Automobile Valuers and Assessors, one Julius Kaburu Waweru (PW3) for his part testified that he personally assessed the Appellant’s motor vehicle KBM 946W at Nyabwa Garage in Nairobi following the accident. He thereafter prepared the assessment report and concluded that repair of the vehicle was economically viable. He identified his Assessment Report (Exh. 3(a)) and the assessment fee receipt for Kshs. 3,500 Exh.3(b). He explained that the report detailed the damage sustained and the estimated cost of repairs, including replacement and repair of damaged components such as the front bumper and grille. 17.During cross-examination, he stated that his report was a repair estimate prepared after inspection and that he did not know whether the vehicle was eventually repaired. He acknowledged that actual repair receipts would be proof of the amount ultimately spent on repairs, but maintained that his assessment accurately reflected the damage observed. In re-examination, he confirmed that he personally carried out the assessment and remained of the opinion that the vehicle was economical to repair. 18.The defence called their sole witness, Suminder Siya (DW1), who adopted his witness statement dated 19 October 2016 as his evidence-in-chief. He testified that he was the driver of the Respondent’s motor vehicle and denied causing the accident. According to him, it was the driver of the Appellant’s motor vehicle who in a bid to overtake his vehicle, had collided into his vehicle. 19.During cross-examination, he maintained that the offending vehicle was overtaking and that he merely hit the Appellant’s vehicle from the side. In re-examination, DW1 stated that the driver of the Appellant’s vehicle was overtaking around a corner and swerved back into his lane to avoid an oncoming vehicle, thereby causing the collision. He further testified that he had never been charged with any traffic offence arising from the accident and maintained that he was not to blame 20.This appeal challenges the quantum of damages and interest as awarded by the trial court. Specifically, the finding of the trial court regarding proof of special damages in respect of material damage to the Appellant's motor vehicle and the commencement date for interest. Thus, liability is not an issue here, the trial court having found the Respondent wholly liable for the accident. The key question is whether the Appellant proved the pleaded special damages of Kshs. 405,460/- and whether interest thereon ought to run from the date of filing suit or from the date of judgment. 21.It is trite that special damages must not only be specifically pleaded but must also be strictly proved. The Court of Appeal reiterated this principle in Hahn v Singh [1985] KLR 716. And the standard of proof is on a balance of probability The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:-“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under Section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue,Section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 22.Hence, the duty of proving the averments contained in the plaint lay squarely on the Appellant. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added) 23.In claims involving material damage to motor vehicles, courts have acknowledged that the cost of repairs may be proved through an assessor's report where such report is prepared by a qualified motor vehicle assessor, and produced in evidence. The court must therefore examine whether the evidence tendered by the Appellant met the required threshold. 24.The record shows that the Appellant produced an assessment report prepared by PW3, a qualified motor vehicle assessor from Kenya Pride Automobile Valuers and Assessors. PW3 testified that he personally inspected the Appellant’s motor vehicle and prepared the assessment report estimating the repair costs at Kshs. 401,360/-. The report was produced as Exh. 3(a) together with the assessment fee receipt produced (Exh. 3(b). His testimony was to the effect that the vehicle had sustained extensive damage but could be economically repaired. On its part, the Respondent did not call any assessor to rebut the assessment report or produce any contrary expert evidence regarding either the nature of the damage or the estimated cost of repairs. 25.The learned trial magistrate nevertheless declined to award the assessed repair costs on the basis that the Appellant had failed to demonstrate that he had actually incurred the repair expenses. With respect, that approach amounted to a misapprehension of the law relating to material damage claims. The Appellant's claim was for the cost of restoring the vehicle to its pre-accident condition. Such loss is ascertainable through expert assessment and need not necessarily be supported by evidence that the repairs were actually subsequently undertaken. To insist on proof of actual repairs in every case would unjustly deny compensation to a claimant who probably lacked the financial means to repair his damaged vehicle from pursuing recovery from the tortfeasor. 26.The foregoing position was adopted by the Court of Appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR where it stated :-“In our view special damages is a material damage ………..The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty. In Ratcliffe v. Evans [1892]2QB 524 Bowen L.J. said:“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 27.Similarly, the Court of Appeal in Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR, observed that although special damages must be specifically pleaded and proved, the nature of proof required depends on the circumstances of the case and the character of the loss suffered. The Court emphasized that documentary evidence and expert evidence may constitute sufficient proof where the loss is capable of ascertainment and has been properly quantified. 28.Further, in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR, the Court of Appeal reiterated that the law does not require proof beyond reasonable doubt in civil claims and that damages are proved on a balance of probabilities. The Court further held that where a claimant places before the court credible evidence quantifying loss and such evidence is not rebutted, the court ought not to reject the claim merely because a different mode of proof was not produced. 29.In the present case, the assessor's report was produced without objection and its contents were not challenged during cross-examination. Although PW3 acknowledged that actual receipts would show the actual eventual sum expended on repairs, he maintained that the report represented a professional estimate of the cost required to restore the vehicle. The trial court therefore erred in disregarding the report solely because proof of actual expenditure had not been tendered. In so doing, the court imposed a higher standard of proof than that required in civil proceedings and failed to properly evaluate the expert evidence before it. 30.Consequently, the court is satisfied that on the evidence tendered, in particular Exh. 3(a), the Appellant proved the assessed repair costs of Kshs. 401,360/- on a balance of probabilities. The Appellant further produced receipts and documentary evidence in support of the related expenses pleaded, namely the police abstract fee, search charges and assessment charges which were allowed by the trial court, as specifically pleaded and proved. Accordingly, in the court’s view, the Appellant established to the requisite standard, the entire pleaded special damages to the tune of Kshs. 405,460/-, 31.Regarding the commencement date of interest on special damages, Section 26 of the Civil Procedure Act grants the court discretion to award interest at such rate and for such period as it deems reasonable. However, in practice the courts consistently make a distinction between interest concerning awards in general damages and special damages. Whereas interest on general damages ordinarily runs from the date the damages are adjudged, that is at judgment, interest on special damages generally runs from the date of filing suit because the loss is taken as having crystallized by the filing date of the claim. 32.The Court of Appeal in Sharrif Salim & Another v Malundu Kitakya [1989] eKLR observed that interest on special damages should normally be awarded from the date of filing suit where the loss claimed had already been incurred before commencement of proceedings. The rationale being that a plaintiff having been deprived of money which was ascertainable and due at the time the suit was instituted ought to be compensated for that deprivation. Moreover, interest is ordinarily awarded to facilitate prompt payment of decretal sums. 33.The material damage claim and related expenses in this case qualified as a liquidated claim and the trial court did not assign any reason for departing from the general principle that interest on special damages should run from the date of filing suit. In the absence of any special circumstances justifying such departure, the court finds that the learned magistrate erred in directing that interest would run from the date of judgment. 34.The court having reconsidered and re-evaluated the evidence on record, is satisfied that the appeal is merited. Having proved the pleaded special damages to the required standard, the Appellant was entitled to a full award of special damages and interest thereon with effect from the date of filing suit until full payment, as sought in his plaint. Therefore, the contrary findings of the trial court cannot stand. 35.Accordingly, the appeal has succeeded in toto. The judgment of the trial court is hereby set aside and substituted with judgment for the Appellant against the Respondent for special damages in the sum of Kshs. 405,460/-. The said sum shall attract interest at court rates from the date of filing suit until payment in full. The Appellant is awarded the costs of the suit in the lower court and on this appeal. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 18TH DAY OF JUNE 2026.C. MEOLIJUDGEIn the presence ofFor the Appellant: Mr. MureithiFor the Respondent: Mr. NdegwaC/A: Lepatei