https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/295

Ndambuki v Bahari Forwarders Ltd (Civil Case E185 of 2023) [2026] KEMC 295 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEMC 295 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E185 of 2023 YA Shikanda, SPM July 2, 2026 Between Charles Nzioka Ndambuki Plaintiff and Bahari Forwarders Limited Defendant Judgment The Claim 1.Charles Nzioka Ndambuki (hereinafter referred to as the plaintiff) filed this suit on 6/10/2023 vide a plaint dated 3/10/2023. The plaintiff sued Bahari Forwarders Limited (hereinafter referred to as the defendant) on account of a road traffic accident that allegedly occurred on 19/5/2023 at Mtito Andei area along Nairobi-Mombasa highway. The plaintiff averred that on the material day, the plaintiff’s motor vehicle registration number KAB 210X was being driven along the aforementioned road when the defendant’s driver so recklessly and/or negligently controlled and/or managed motor vehicle registration number KBN 495P/ZD 5284 that he allowed the motor vehicle to abruptly enter the road without indication and as a result, the plaintiff’s driver veered off the road to avoid a collision but unintentionally rammed into motor vehicle registration number KCF 250K/ZF 4860. That the plaintiff’s motor vehicle sustained extensive damage. 2.The defendant was sued as the registered owner of motor vehicle registration number KBN 495P/ZD 5284. The plaintiff averred that the said accident was solely caused by the negligence of the defendant’s driver, in the manner in which the defendant’s motor vehicle was driven, managed and/or controlled. The plaintiff pleaded particulars of damage and those of negligence. I will not reproduce the particulars of damage and negligence since the parties entered into a consent on liability. The plaintiff further averred that he incurred losses for a period of three months as he was unable to carry out his water supply business, which earned him an average income of Ksh. 10,000/= per day, amounting to Ksh. 300,000/= per month. 3.The plaintiff thus prays for judgment against the defendant for:a.Special damages of Ksh. 318,152/=;b.General damages for loss of amenities;c.Loss of income for three months in the sum of Ksh. 300,000/= per month;d.Costs of this suit;e.Interest on the above;f.Any and/or further relief that this Honourable court may deem fit and just to grant. The Defence 4.The defendant filed a notice of appointment of Advocates on 21/11/2023 and filed a statement of defence on 14/12/2023. The defendant averred that the plaintiff’s suit was incompetent and an abuse of the process of court. It denied being the registered owner of motor vehicle registration number KBN 495P/ZD 5284. The defendant further denied that the said motor vehicle was negligently driven and denied the occurrence of the accident as pleaded in the plaint. The defendant denied the particulars of negligence pleaded by the plaintiff and averred in the alternative that if the accident occurred, then the same was solely caused and/or substantially contributed to by the negligence of the plaintiff in his manner of driving motor vehicle registration number KAB 210X. The defendant pleaded several particulars of negligence and prayed that the plaintiff’s suit be dismissed with costs. Consent on Liability and Evidence 5.On 11/11/2025 when the matter came up for hearing, the parties recorded a consent on liability, in which the plaintiff was to shoulder 15% whereas the defendant was to bear 85%. The parties further agreed to adopt their documents filed in court as evidence without calling the makers thereof and to file written submissions on quantum. The consent was adopted by the court. Main Issues for Determination 6.In my opinion, the main issues for determination are as follows:i.Whether the plaintiff suffered loss and damage as a result of the alleged accident;ii.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;iii.Who should bear the costs of this suit? The Plaintiff’s Submissions 7.The plaintiff relied on his evidence on record and submitted that it incurred a total of Kshs. 318,152/=. For loss of income, the plaintiff submitted that he had produced evidence on the same and asked for Ksh. 900,000/=. The Defendants’ Submissions 8.The defendant submitted that there was no evidence to support the claims for certificate of motor vehicle search, police abstract and drafting and serving of statutory notice. That the cost for certificate of motor vehicle search should be Ksh. 550/=. The defendant submitted that it was inappropriate to claim police abstract fees and that drafting and serving of statutory notice should be part of costs of the suit and not special damages. The defendant further submitted that the plaintiff had not filed any evidence to show that he incurred the costs for repairs. It was argued that the plaintiff had failed to adduce evidence on the loss of income for three months as claimed. The defendant urged the court to award claims that meet the legal threshold. It relied on the following authorities:a.Kimitei v Tuitoek [2025] KEHC 2332 (KLR);b.Auren v Director General of Police & another [2023] KEHC 2931 (KLR). 9.There was a mix up on the list of authorities and those actually filed. Analysis and Determination 10.I have carefully considered the evidence on record. The plaintiff pleaded special damages amounting to Ksh. 318,152/=. The plaintiff produced an assessment report which clearly shows that its motor vehicle was damaged as a result of the accident. I am satisfied that the plaintiff suffered loss and is thus entitled to damages as against the defendant. The plaintiff's claim is basically one for special damages. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said:“It has time and again been held by the Courts in Kenya that a claim for each particular type of special damage must be pleaded” 11.In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L.J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of 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.” 12.Similarly, in the case of Hahn v Singh [1985] KLR 716, it was held that:“… special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences 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 the nature of the act themselves.” 13.In the authority of Jonathan Njenga v Hassan Faraj Aboud [1987] KECA 17 (KLR), the Court of Appeal (per Platt JA) was of the view that in cases of material damage, the victim would be entitled to compensation for depreciation of his motor vehicle. The compensation is arrived at by getting the pre-accident value of the car less the scrap value. Similarly, in Herbert Hahn v Amrik Singh [1985] KECA 68 (KLR), the Court of Appeal observed:“The appellant was, nevertheless, entitled to the depreciation in the value of his vehicle resulting from the accident. That depreciation is calculated by deducting the post-accident estimated market value from the estimated pre-accident market value of the motor vehicle and getting the difference, if any, which represents the loss the plaintiff will suffer at the time of resale of his vehicle and which is recoverable. But this loss has to be proved by evidence and is not automatic.” 14.The position was also alluded to in the authority of David Bagine v Martin Bundi [1997] KECA 54 (KLR) in which the court of Appeal held:“We come now to the issue of special damages award for Kshs. 277,750/= for repair costs. Counsel for the appellant argued that the respondent could properly only have claimed such sum as he actually spent towards repair of his lorry and that he could not have claimed on the basis of an estimate of costs of parts to be replaced…………………No evidence by any expert was called to prove the exact repair costs. Nor was there any evidence to show what was the pre-accident value of the lorry and the salvage value (if the lorry was indeed a wreck). There was nothing to show if the sum of Kshs. 277,750 could have properly been spent to put the lorry back on the road……..The best evidence in this respect could have been supplied by an automobile assessor.” 15.In Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR, the Court of Appeal had this to say:“In our view special damages in a material damage claim need not be shown to have actually been incurred. 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………………………………Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are common items and any price which the assessor might have given could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence. The court had the right to accept or reject his opinion if the circumstances so dictated. The respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate courts in the concurrent decision they came to. Indeed the decision of David Bagine v Martin Bundi Civil Appeal No. 283 of 1996 which Mr.Kaburu cited to us, does state that a motor vehicle Assessor’s report would provide acceptable evidence to prove the value of material damage to a motor vehicle.” 16.The foregoing reveals that there are three ways in which a claimant may be compensated for damages for material damage;a.Where the property is repaired and repair costs are proven. In this case, the claimant must prove loss incurred in terms of repair costs by production of receipts for payment of the costs;b.Where the property is beyond repair and written off, the claimant may be paid the pre-accident value thereof. If the property can be salvaged, compensation is reached by deducting the salvage value from the pre-accident value;c.Where there is an expert’s assessor’s report showing the damage and the estimated costs of repair. 17.In this case, the plaintiff produced an assessment report and further produced receipts in evidence. The receipts are dated 20/8/2023 and 30/8/2023. These are receipts for the purchase of parts and labour charge, respectively. The total amount as per the receipts is Ksh. 264,850/=. The plaintiff pleaded Ksh. 264,712/= as total repair costs. I will award Ksh. 264,712/= as pleaded, although a higher figure was proven. There is no evidence to support the claim for the police abstract. The proven claim for the motor vehicle search is Ksh. 550/=. I agree with the defendant that the claim for drafting and serving of the statutory notice cannot be termed as special damages. That can be claimed as part of costs of the suit upon conclusion of the matter. I will disregard the claim. There is a receipt for Ksh. 40,000/= for towing charges. There is also proof of payment of Ksh. 6,000/= for the assessment/valuation report. Consequently, the total award under special damages is Ksh. 311,262/=. 18.The plaintiff also claims Ksh. 900,000/= being loss of income owing to the accident. In the authority of David Bagine (supra), the Court of Appeal held:“We must and ought to make it clear that damages claimed under the title “loss of user” can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase “doing the best I can”. These damages as pointed out earlier by us must be strictly proved.” 19.Similarly, in Unga Limited & another v James Njuguna Njoroge [2012] KECA 96 (KLR), the Court of Appeal observed:“We now turn to the issue of loss of user and the issue before us is whether it falls under the heading of special or general damages. The plaint sought for: “general damages for non-user of the plaintiff’s motor vehicle.” However, during the hearing, there was no evidence to support the contention that the plaintiff used to get KShs.2, 000/- per day after all the deductions. He had no documents to prove that the vehicle was a PSV vehicle and no records like bank statements or ledger books to show the nature of the business. We agree with Mr Kagucia that the learned trial judge must have overlooked and failed to re-evaluate this aspect which falls under the heading of special damages that must not only be pleaded but proved strictly. The loss of user is a specific loss that a claimant has incurred by getting an alternative means of livelihood either through hire of another vehicle; or the amount lost due to the loss of the user if no alternative vehicle was hired should be proved through records of previous earnings by the same vehicle.” 20.Both parties agree, rightly so, that the claim for loss of income is in the nature of special damages. The plaintiff creates the impression that it took him three months to repair the motor vehicle. It is trite law that a person who suffers injury owing to a breach of contract or a tort has the duty to mitigate the loss. In African Highland Produce Limited v John Kisorio [2001] KECA 364 (KLR), the Court of Appeal held:“The guiding principle of law in mitigation of losses is as follows. It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues, and he cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintiff realizes that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those of the defendant. He is, however, under no obligation to injure himself, his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to minimise the damages, or embark on dubious litigation. The question what is reasonable for a plaintiff to do in mitigation of his damages is not a question of law, but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.” 21.The assessment report produced in evidence by the plaintiff indicates that the repair works would have taken three days. The receipt for the purchase of parts indicates that the same were bought on 20/8/2023. That was a period of three months from the date of the accident. The final receipt was issued on 30/8/2023. The plaintiff claims to have been earning an average of Ksh. 10,000/= per day. It is expected that he would not have taken that long to repair the motor vehicle, given that the cost of repairs was less than Ksh. 300,000/=. The plaintiff relies on work tickets which indicate the amount received on a daily basis. 22.In Wambua v Patel & Another [1986] KLR 336, the High Court (Apaloo, J as he then was), was faced with the problem of quantification of loss of earnings of a cattle trader who had been severely injured in a road traffic accident. Although the court in that case found that the evidence of the plaintiff’s earnings to be very poor and that he had kept no books of account nor business books and had never paid any tax, the court said at p.346 para 25:“Nevertheless, I am satisfied that he was in the cattle trade and earned his livelihood from that business. A wrong doer must take his victim as he finds him. The defendants ought not to be heard to say the plaintiff should be denied his earnings because he did not develop more sophisticated business method” ….and added at p. 347 para 1 “But a victim does not lose his remedy in damages because the quantification is difficult.” 23.In Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR, the Court of Appeal was grappling, inter alia, with a claim for loss of butchery business which the plaintiff closed after sustaining injuries in a road traffic accident. The claim was opposed on the grounds, amongst other things, that account books, income, tax returns or audited accounts were not produced. Nevertheless, the Court computed the claim on the basis of the evidence available. In the case of Chinese Technical Team for Kenya National Sports Complex & 2 others v Chabari M’Ingaruni – Court of Appeal Civil Appeal No. 293 of 1998 (unreported) quoted with approval by the Court of Appeal in the authority of Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR), a claim for loss of use of a vehicle (Matatu) apparently written off in an accident, was allowed for a period of six months although no supporting documentary proof by way of books of accounts was produced upon the court being satisfied that the vehicle was used as a means of earning income for the deceased plaintiff. 24.In Peter Njuguna Joseph & Another v Ann Moraa, Civil Appeal No. 23 of 1991 (unreported), the Court of Appeal assessed the loss of user of an immobilized matatu by estimates of the net income and period under which it should have been repaired even though not a single document was produced. Being guided by the above authorities and bearing in mind that parties agreed to have the plaintiff’s documents admitted in evidence without calling the makers, I find that the work tickets would be sufficient to provide an acceptable estimate of the plaintiff’s earnings. From the work tickets, it would appear that the plaintiff used to earn an average of Ksh. 10,000/= per day from the water business. 25.As already indicated, the plaintiff had a duty to mitigate the loss. Three months is such a long period for a person who was in business and earning such an amount on a daily basis. The assessment report relied upon by the plaintiff estimated a period of three days for repairs. Since the plaintiff did not testify, it is not known why it took him that long to have the motor vehicle repaired. It actually took the plaintiff three months to cause the motor vehicle to be repaired. It did not take three months to repair the motor vehicle. From the receipts that were produced in evidence, it would appear that it took ten (10) days to repair the motor vehicle. Parts were bought on 20/8/2023 and the plaintiff was finally billed on 30/8/2023. Doing the best that I can, I will award the plaintiff damages for loss of user for 10 days at Ksh. 10,000/= per day. The total award would be Ksh. 100,000/=. Disposition 26.In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendant. Consequently, I proceed to award the plaintiff as follows:a.Special damages…………………………………………………………Ksh. 311,262/=;b.Damages for loss of income/user……………………………….Ksh. 100,000/=Total…………………………………………………………………………..Ksh. 411,262/=Less 15% contribution……………………………………………….….Ksh. 61,689.30/=Balance due to the plaintiff………………………………………...Ksh. 349,572.70/= 27.The plaintiff is also awarded interest on the damages as well as costs of the suit. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” 28.In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” 29.Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows:“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied) 30.From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on both damages shall accrue at court rates from the date of filing suit to the date of judgment/decree. DATED, SIGNED AND DELIVERED VIA CTS THIS 2ND DAY OF JULY, 2026.Y. A. SHIKANDASENIOR PRINCIPAL MAGISTRATE.