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Bluaxis Construction Limited & another v Liquid Telecommunications Limited (Civil Appeal E181 of 2025) [2026] KEHC 11233 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 11233 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E181 of 2025 AM Hassan, J July 20, 2026 Between Bluaxis Construction Limited 1st Appellant Benjamin Njuguna 2nd Appellant and Liquid Telecommunications Limited Respondent (Being an Appeal from the judgment of the Learned Magistrate J.K. Tawai, Resident Magistrate/ Adjudicator delivered on 20th June, 2025, at Ruiru Law Courts, in SCCC No. E163 of 2025) Judgment A. Introduction 1.This Appeal arises from the Judgment of Hon. J.K. Tawai, Resident Magistrate/Adjudicator, delivered on 20th June 2025 at the Small Claims Court, Ruiru, in SCCC No. E163 of 2025. 2.The Claimant, who is the Respondent in this Appeal, instituted a claim alleging that on 26th February 2022, motor vehicle registration number KBY 239N, belonging to the Claimant, was lawfully and carefully parked at Kihurungo when the Respondent, through its authorized driver, agent and/or employee, so negligently, carelessly and recklessly drove, managed and controlled motor vehicle registration number KDE 210Q that, while reversing, it rammed into the Claimant’s stationary motor vehicle, thereby causing it extensive damage. 3.The Claimant held the Respondent both personally and vicariously liable for the accident, contending that investigations conducted attributed blame to the Respondent’s driver. The Claimant further averred that, at the time of the accident, motor vehicle registration number KBY 239N was insured by G.A. Insurance Kenya Limited, which fully indemnified the Claimant for the loss suffered. Consequently, the suit was instituted under the doctrine of subrogation on behalf of the insurer. 4.The Respondent filed a Response dated 17th April 2025, denying the occurrence of the accident as pleaded and contending that there existed four differing versions regarding the circumstances under which the accident allegedly occurred. The Respondent further averred that it had no knowledge of the alleged accident and maintained that the Claimant had failed to discharge the requisite burden of proof. Accordingly, the Respondent prayed for the dismissal of the claim with costs. 5.By consent of the parties, the matter proceeded by way of documentary evidence pursuant to Section 30 of the Small Claims Court Act, 2016. 6.On the issues for determination, the trial court identified three issues, namely: liability for the accident, whether the Claimant was entitled to the damages sought, and the quantum of damages payable. In determining liability, the learned Magistrate relied on the Police Abstract dated 28th February 2022 (Cexpt 1), which attributed blame for the accident to the driver of motor vehicle registration number KCV 392M. The Respondents neither objected to the production of the said Police Abstract nor adduced any evidence to rebut the Claimant’s evidence regarding the occurrence of the accident and the attribution of blame. 7.The learned Magistrate further relied on the decision in Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others, as cited in Linus Ng’ang’a Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR, for the proposition that where evidence adduced by a plaintiff is uncontroverted, such evidence remains unchallenged and may be relied upon by the court. Consequently, the trial court found that the 2nd Respondent was liable for the accident and that the 1st Respondent was vicariously liable as the owner of motor vehicle registration number KDE 210Q, as evidenced by the copy of records dated 19th February 2025 (Cexpt. 6). 8.On the issue of quantum, the court noted that the Claimant produced a copy of the Policy Schedule (Cexpt. 2) and supporting documentation (Cexpt. 3), demonstrating that the Claimant was insured by G.A. Insurance Kenya Limited and that the doctrine of subrogation was therefore applicable. The Claimant specifically pleaded special damages in the sum of Kshs. 211,529.52 and produced documentary evidence in support thereof. Upon evaluating the evidence tendered, the court found that the Claimant had proved its claim to the required standard. 9.Consequently, judgment was entered in favour of the Claimant. Liability was apportioned at 100% against the Respondents, jointly and severally. The court awarded the Claimant a sum of Kshs. 170,780 together with interest thereon at court rates from the date of judgment until payment in full, as well as the costs of the suit. 10.The Appellants, being dissatisfied with the judgement of the trial court, filed an appeal, which was canvassed by way of written submissions B. Submissions By Parties Appellant’s Submissions 11.The Appellants submitted that they filed a Statement of Response to the Claim in which they admitted ownership of motor vehicle registration number KDE 210Q but vehemently denied any knowledge of the alleged accident. They further contended that they had highlighted several material contradictions in the Respondent’s account of how the accident occurred. However, the learned trial Magistrate allegedly failed to consider the defence advanced and instead disregarded the inconsistencies on the basis that the Appellants had not called evidence in support of their case. Consequently, the trial court held that the Respondent’s evidence remained uncontroverted and unchallenged. 12.The Appellants further submitted that they had no knowledge whatsoever of the alleged accident. They contended that neither their driver nor their directors were ever summoned, interviewed, or questioned by the investigating officer. Further, their motor vehicle was neither inspected nor impounded in connection with the alleged accident, and no documentary evidence was produced to demonstrate any investigations involving the Appellants or their vehicle. 13.The Appellants contended that the learned Magistrate erred in relying on the Police Abstract dated 28th February 2022, which allegedly attributed blame to motor vehicle registration number KCV 392M, notwithstanding that the vehicle alleged to have been involved in the accident was motor vehicle registration number KDE 210Q. 14.According to the Appellants, it was undisputed that their motor vehicle was registration number KDE 210Q, while the Respondent’s motor vehicle was registration number KBY 239N. They argued that it was both baffling and contradictory for the trial court, at paragraph 7 of its judgment, to rely on a Police Abstract that attributed blame to motor vehicle registration number KCV 392M and, in the same judgment at paragraph 9, proceed to hold the 2nd Appellant vicariously liable as the owner of motor vehicle registration number KDE 210Q. The Appellants therefore submitted that the trial court must have relied on a Police Abstract relating to a different and unrelated accident, thereby arriving at an erroneous finding on liability. 15.The Appellants further pointed to what they considered inconsistencies in the Respondent’s case which, in their view, were overlooked by the trial court. They noted that whereas the alleged accident was said to have occurred on 26th February 2022, it was only reported on 27th February 2022 under OB No. 28, as reflected in the Police Abstract dated 28th February 2022. 16.The Appellants submitted that there was no evidence demonstrating that the investigating officer visited the scene of the accident on 26th February 2022. Further, no evidence was adduced to show that statements were recorded from the Appellants’ directors or from the 2nd Appellant, who was allegedly the driver of the motor vehicle at the material time. They maintained that since the date of the alleged accident, neither they nor their driver had ever been summoned by the police to record statements regarding the occurrence of the accident. Additionally, the Appellants’ motor vehicle was never impounded or inspected. They therefore questioned how the investigating officer could have concluded that the Appellants’ vehicle was to blame for the accident without visiting the scene or obtaining a statement from the alleged driver. 17.The Appellants further submitted that the Respondent’s driver admitted that he had parked motor vehicle registration number KBY 239N and proceeded to attend to other duties when the accident allegedly occurred. As such, he was not present at the scene at the material time and did not witness the accident. They argued that upon his return, the Appellants’ vehicle was not at the scene and, therefore, his evidence regarding the occurrence of the accident was not based on direct knowledge but amounted to hearsay evidence. 18.The Appellants identified what they described as the first version of the accident from the Respondent’s evidence before the trial court. According to the Respondent’s driver, motor vehicle registration number KDE 210Q allegedly reversed and rammed into an unspecified part of motor vehicle registration number KBY 239N, thereby causing damage. 19.The Appellants submitted that a second version emerged from the Respondent’s demand letter dated 6th February 2025, which stated that motor vehicle registration number KDE 210Q was being driven recklessly and at speed before ramming into the rear of motor vehicle registration number KBY 239N. 20.The Appellants further contended that a third version emerged from the Motor Accident Claim Form submitted to G.A. Insurance Kenya Limited. In that report, the Respondent’s driver allegedly stated that motor vehicle registration number KDE 210Q reversed and damaged the left-hand side door, window, and side mirror of motor vehicle registration number KBY 239N. They noted that the report made no reference to damage to the rear portion of the vehicle, thereby contradicting the contents of the demand letter. 21.According to the Appellants, a fourth version emerged from the sketch plan contained in the Motor Accident Claim Form submitted to G.A. Insurance Kenya Limited. They submitted that the sketch depicted an unidentified vehicle, and not motor vehicle registration number KDE 210Q, reversing into what appeared to be the rear section of the Respondent’s parked vehicle. 22.The Appellants submitted that a fifth version emerged from the trial court’s judgment itself. They argued that at paragraph 7 of the judgment, the court appeared to rely on a Police Abstract attributing blame to motor vehicle registration number KCV 392M, which was neither owned by nor associated with the Appellants. 23.In light of the foregoing, the Appellants framed the issues for determination as whether the Respondent had proved its case on a balance of probabilities and whether the Respondent was entitled to the remedies awarded by the trial court. They argued that the numerous inconsistencies and contradictions in the Respondent’s evidence were sufficient to demonstrate that the claim had not been proved to the requisite standard. In support of their submissions, the Appellants relied on the decisions in Mary Wambui Kabugu v Kenya Bus Services Ltd, Civil Appeal No. 195 of 1995; Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR; Nickson Muthoka Mutavi v Kenya Agricultural Research Institute [2016] eKLR; Nandwa v Kenya Kazi Ltd [1988] KLR 488; and Regina Wangeci v Eldoret Express Co. Ltd [2008] eKLR. Respondent’s Submissions 24.The Respondent submitted that the issue before the trial court was whether negligence had been proved. It was argued that instead of rebutting the evidence presented by the Respondent, the Appellants merely denied the occurrence of the accident and failed to tender any evidence challenging the Respondent’s driver’s testimony, the police findings, or the investigator’s report. According to the Respondent, the Appellants sought to create artificial inconsistencies and alternative versions of events that did not displace the evidence establishing liability. 25.The Respondent relied on the evidence of its driver, Daniel Ngugi Kamau, who stated that on 26th February 2022 he had parked motor vehicle registration number KBY 239N off the road when motor vehicle registration number KDE 210Q, while reversing, lost control and rammed into his vehicle. It was submitted that this account was consistent with the handwritten statements recorded immediately after the accident, the Police Abstract, and the Claim Form. The Respondent maintained that its driver was an eyewitness to the accident and had never stated that he was away from the vehicle. Consequently, the Appellants’ contention that there was no eyewitness was said to be speculative and unsupported by evidence. 26.Further, the Respondent argued that the evidence consistently identified motor vehicle registration number KDE 210Q as the vehicle involved in the accident. The registration number was recorded in the witness statements, the Claim Form, the Police Abstract, and the Tracing Report. It was therefore contended that there was no uncertainty regarding the identity of the offending vehicle and that the Appellants had not produced any evidence to challenge that identification. 27.On the issue of reporting the accident, the Respondent submitted that the accident occurred at about 6.30 p.m. on 26th February 2022 and that the police attended the scene, took statements, and subsequently advised the parties to record particulars at the police station. An Occurrence Book entry was then made the following morning under OB No. 28 of 27th February 2022. The Respondent argued that there was nothing unusual about reporting the matter the next morning and that such circumstances did not undermine the occurrence of the accident. 28.The Respondent further submitted that the point of impact was clearly established by the documentary evidence. It was stated that the damage was on the left-hand side of motor vehicle KBY 239N, particularly the left side mirror and the left front door. Reference was made to the Claim Form, the Assessment and Technical Report prepared by Nordics Assessors, photographs annexed to the assessment report, and the repair invoice from LogiTech Ltd, all of which were said to confirm the location and nature of the damage. Any pre-accident damage identified on the vehicle was distinguished from the damage arising from the accident and was not included in the claim for indemnification. 29.The Respondent also argued that the Appellants’ reliance on discrepancies in a demand letter was misplaced. It was submitted that a demand letter is merely a pre-litigation communication intended to notify a party of a claim and that any errors contained therein were technical in nature. According to the Respondent, the issues before the court were governed by the pleadings filed and the evidence adduced during trial rather than correspondence exchanged before the institution of the suit. 30.The Respondent further relied on the Police Abstract dated 28th February 2022, which indicated that following investigations, the police found motor vehicle KDE 210Q to blame for causing the accident. It was contended that the Appellants’ witness simply denied the occurrence of the accident and disputed the police findings without producing any evidence to contradict the conclusions reached by the investigating officer. 31.The Respondent maintained that its evidence remained uncontroverted and that it had proved its case on a balance of probabilities. It was submitted that the Claim Form, witness statements, Police Abstract, assessment report, photographs, and repair documents consistently established both the occurrence of the accident and the Appellants’ liability. The Respondent therefore urged the court to uphold the trial court’s finding on liability and dismiss the appeal. 32.The Respondent submitted that the Appellants are now relying on their submissions which are not part of the case and relied on the case of Daniel Torotoich Arap Moi v Mwangi Stephen Muriithi & Another (2014) eKLR and the case of Riziki Fresh Limited & Another v JKM (suing next of kin and on behalf of the Dependent’s and the Estate of JNK-Deceased (2020) eKLR. 33.The Respondent also makes refence to the Statement of Claim by the Respondent and its Amendment thereto, the findings of the Investigating officer as per the Police Abstract dated 28/02/2022 who got to the scene, took details and after investigations, blamed the Appellant’s vehicle KDE 210Q lorry for causing the accident to testament the issue of liability. The Respondent submitted that the culpable motor vehicle, KDE 210Q belongs to the 1st Appellant and therefore, the 2nd Appellant is personally liable while the 1st Appellant is vicariously liable. C. Issues For Determination 34.Having considered the Memorandum of Appeal, the Record of Appeal, the Judgment of the trial court and the parties’ respective submissions, the following issues arise for determination:-a.Whether the Respondent proved, on a balance of probabilities, that motor vehicle registration number KDE 210Q was involved in the accident that occurred on 26th February 2022 and that the Appellants were liable for the same.b.Whether the alleged inconsistencies and contradictions in the Respondent’s evidence were material and sufficient to vitiate the trial court’s findings on liability.c.Whether the learned trial Magistrate erred in relying on the Police Abstract and in finding that the Respondent had proved its claim.d.Whether the award made by the trial court ought to be interfered with by this court. D. Analysis Of The Issues For Determination Issue 1: Whether the Respondent proved, on a balance of probabilities, that motor vehicle registration number KDE 210Q was involved in the accident and that the Appellants were liable 35.This being a first appeal, this court is duty bound to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify as was stated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123: 36.The burden of proof in civil proceedings is governed by Sections 107, 108 and 109 of the Evidence Act. The legal burden rests upon the party who asserts a fact and remains throughout the proceedings. In Koisikir (suing as the Administrator of the Estate of Partoti Koisir (deceased)) v Diplomatic Housing and Co-operative Society Limited; District Land Registrar, Kajiado County & another (Third party) (Environment & Land Case 800 of 2017) [2022] KEELC 13773 (KLR) (24 October 2022) (Judgment)”, the court heId “I have borne in mind the burden on the plaintiff to prove his case on a balance of probabilities and also the burden on the defendant to prove its counterclaim to a similar standard”. 37.The issue for determination is therefore whether the Respondent discharged that burden. The record shows that the Respondent produced a Police Abstract dated 28th February 2022, witness statements, a Motor Accident Claim Form, an Assessment Report, photographs of the damaged vehicle, repair documents and proof of indemnification by G.A. Insurance Kenya Limited. 38.Upon re-evaluating the evidence, this court notes that the witness statement of Lorna Malosoy, the Legal Officer of G.A. Insurance Kenya Limited, consistently identified motor vehicle registration number KDE 210Q as the vehicle involved in the accident. Similarly, Daniel Ngugi Kamau, the driver of motor vehicle KBY 239N, stated that while his vehicle was parked, motor vehicle KDE 210Q reversed and rammed into it. The Motor Accident Claim Form equally records that motor vehicle KDE 210Q reversed and damaged the insured vehicle. 39.The court therefore finds that the documentary evidence consistently identified motor vehicle registration number KDE 210Q as the offending vehicle and consistently described the accident as having occurred while the said vehicle was reversing into the Respondent’s stationary motor vehicle. 40.Although the Appellants filed a Statement of Response denying liability, they did not call any witness or tender any documentary evidence to rebut the Respondent’s evidence. The law is settled that pleadings are not evidence. In CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) [1978] eKLR, the court held that:- “Pleadings contain the averments of the three parties concerned until they are proved or disproved. They are not evidence and no decision could be founded upon them.” 41.Likewise, in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Anothe r [2014 ] eKLR , the Court of Appeal emphasized that: “Submissions cannot take the place of evidence.” The court went on to state that: “Submissions, we reiterate, do not constitute evidence at all.” 42.Consequently, the Appellants' denials contained in their pleadings and submissions remained mere allegations unsupported by evidence. In the absence of rebuttal evidence, the Respondent's documentary evidence remained substantially unchallenged. 43.Having independently re-evaluated the entire record, this court is satisfied that the Respondent proved on a balance of probabilities that motor vehicle registration number KDE 210Q was involved in the accident and that the Appellants were liable for the damage occasioned to motor vehicle registration number KBY 239N. Issue 2: Whether the alleged inconsistencies and contradictions in the Respondent's evidence were material and sufficient to vitiate the trial court's findings 44.The Appellants' principal complaint is that the Respondent advanced several inconsistent versions of the accident. The court has carefully examined the witness statements, the demand letter, the Motor Accident Claim Form and the other documentary evidence relied upon before the trial court. 45.The court has carefully examined the documents relied upon. The first alleged inconsistency relates to the witness statement of Daniel Ngugi Kamau, which states that motor vehicle registration number KDE 210Q reversed into the Respondent's vehicle. The second relates to the demand letter, which states that the vehicle was being driven recklessly and while speeding before ramming into the rear of the Respondent's vehicle. The third concerns the Motor Accident Claim Form, which states that the offending vehicle reversed and damaged the left-hand side door, mirror and window of motor vehicle registration number KBY 239N. The fourth relates to the sketch plan contained in the Claim Form, which depicts the offending vehicle colliding with the Respondent's vehicle while it was parked. The fifth concerns the reference in paragraph 7 of the trial court's judgment to motor vehicle registration number KCV 392M instead of KDE 210Q. 46.This court has carefully considered the alleged inconsistencies. Even accepting the contents of the demand letter as presented by the Appellants, the demand letter nevertheless identifies motor vehicle registration number KDE 210Q as the offending vehicle and motor vehicle registration number KBY 239N as the vehicle that sustained damage. Significantly, the demand letter, the witness statements and the Motor Accident Claim Form all consistently state that motor vehicle KBY 239N was stationary when it was rammed into by motor vehicle KDE 210Q. Whether the offending vehicle reversed into the Respondent's vehicle or drove forward into it, the common thread running through all the documents is that motor vehicle registration number KDE 210Q collided with motor vehicle registration number KBY 239N while the latter was stationary, thereby causing damage. 47.In the court's view, the distinction between a vehicle reversing into a stationary vehicle and driving into a stationary vehicle does not affect the substance of the Respondent's claim. The material issue is whether motor vehicle registration number KDE 210Q collided with and damaged motor vehicle registration number KBY 239N. On this issue, the witness statements, the Motor Accident Claim Form, the Assessment Report, the photographs and even the demand letter are substantially consistent. 48.The consistent and material facts emerging from all the documents are:a.An accident occurred on 26th February 2022.b.Motor vehicle registration number KBY 239N was stationary at the time of the accident.c.Motor vehicle registration number KDE 210Q was identified as the offending vehicle.d.Motor vehicle registration number KDE 210Q collided with motor vehicle registration number KBY 239N; ande.Motor vehicle registration number KBY 239N sustained damage as a result of the collision. 49.The court therefore finds that the alleged discrepancies concern only the precise manner in which the collision occurred and not the occurrence of the accident itself. They neither create doubt as to the identity of the offending vehicle nor undermine the evidence establishing that motor vehicle registration number KDE 210Q rammed into the Respondent's stationary motor vehicle. Consequently, the inconsistencies are minor, not material, and do not vitiate the Respondent's case. Issue 3: Whether the learned trial Magistrate erred in relying on the Police Abstract 50.The Appellants strongly relied on paragraph 7 of the trial court's judgment where reference was made to motor vehicle registration number KCV 392M. 51.However, upon examining the entire record, this court notes that the pleadings, witness statements, tracing records, claim documents, assessment reports and the Police Abstract itself consistently identify the offending vehicle as motor vehicle registration number KDE 210Q. The Police Abstract does not mention motor vehicle registration number KCV 392M at all. 52.The court is therefore satisfied that the reference to KCV 392M was merely a typographical or accidental error. Elsewhere in the judgment, the learned Magistrate correctly identified motor vehicle KDE 210Q as the offending vehicle and correctly found the 1st Appellant vicariously liable as its registered owner. 53.Such an accidental slip cannot override the totality of the evidence on record nor can it be used to defeat an otherwise properly founded claim. 54.Further, the Police Abstract was produced without objection and its contents were never rebutted by any evidence from the Appellants. The trial court was therefore entitled to consider it together with the other documentary evidence in arriving at its findings on liability. Issue 4: Whether the findings and award of the trial court ought to be interfered with 55.The principles upon which an appellate court may interfere with findings of fact are well settled. In Peters v Sunday Post Ltd [1958] EA 424, the court stated that “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution.” 56.Having independently re-evaluated the evidence on record, this court finds that the learned Magistrate properly directed himself on both the law and the evidence before him. The Respondent proved its case on a balance of probabilities and the Appellants failed to tender any evidence capable of displacing that proof. 57.The court therefore finds no error of principle, misapprehension of evidence or erroneous finding that would justify interference with the judgment of the trial court. 58.Consequently, no basis has been established upon which this court can interfere with either the findings on liability or the award made by the trial court. E. Disposition 59.In the result, this court finds that the appeal lacks merit.Accordingly: -a.The Appeal is hereby dismissed in its entirety.b.The Judgment of the Small Claims Court at Ruiru in SCCC No. E163 of 2025, delivered on 20th June 2025, is hereby upheld.c.The Award of Kshs. 170,780/- together with interest and costs as granted by the trial court is hereby affirmed.d.The Respondent shall have the costs of this Appeal.It is so ordered. SIGNED BY/FOR:THE JUDICIAR Y OF KENYAHON. JUSTICE ABDI M. HASSANThika High Court High Court Div Date: 2026-07-20 22:56:57The Judiciary of KenyaDoc IDENTITY: 392189328359208800698324706784Tracking Number:OOC2F82026