https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10804

Collins Sirumba Holo t/a Business Time v Otolo (Civil Appeal E043 of 2025) [2026] KEHC 10804 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10804 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E043 of 2025 DK Kemei, J July 17, 2026 Between Collins Sirumba Holo t/a Business Time Appellant and Joshua Okoth Otolo Respondent (Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Siaya (Hon Mkala Jacob Punga (RM)) dated 20th June 2025 in Siaya CMCC No. E008 of 2025) Judgment 1.This is an appeal arising from the judgment and decree of the Resident Magistrate’s Court at Siaya (Hon. Mkala Jacob Punga, RM) delivered on 20th June 2025 in Siaya CMCC No. E008 of 2025. In the said judgement the trial magistrate entered judgement on liability at 70% and 30% between the Appellant and Respondent respectively, as well general damages for the Respondent at Kshs 1,200,000/, future medical expenses of Kshs 200,000/, Special damages of Kshs 300,866/ as well as costs of the suit and interest in favour of the Respondent. The trial court also dismissed the Appellant’s counterclaim. 2.Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 20th June 2025 wherein they raised the following grounds of appeal namely; -a.That the learned trial Magistrate erred in law and in fact by finding the Appellant 70% vicariously liable for the occurrence of the accident when the weight of the evidence on record clearly demonstrated that the Respondent was the sole author of his own injuries.b.That the learned trial Magistrate erred in law and in fact by failing to properly evaluate the testimony of the Appellant's witnesses (DW1 to DW5) who consistently established that the Appellant’s motor vehicle registration number KCT 758J Mitsubishi Fuso was stationary and completely off the road at the material time.c.That the learned trial Magistrate misdirected himself in law by finding that the driver of the Appellant's motor vehicle contributed to the accident merely by keeping the engine running thereby misinterpreting the provisions of the Traffic Act (Cap 403).d.That the learned trial Magistrate erred in law and in fact by awarding the Respondent the sum of Kshs. 300,866.00/= as Special Damages in total disregard of the strict proof rule, by relying on an unreceipted hospital invoice of Kshs. 297,316.00/= which did not constitute proof of actual expenditure.e.That the learned rial Magistrate erred in law and in fact by awarding the Respondent a specific liquidated sum of Kshs. 200,000.00 for future medical expenses when the same was never specifically pleaded, itemized or quantified in the body of the Plaint.f.That the learned rial Magistrate erred in law by dismissing the Appellant's Counterclaim for material damage and loss of business totaling Kshs. 266,500.00/= despite the Appellant having produced valid repair receipts and established the damage caused by the Respondent's negligent riding.g.That the learned trial Magistrate erred in law and fact by failing to find that the Respondent was guilty of gross contributory negligence by carrying three pillion passengers on a single motorcycle (registration number KMEE 386Y Boxer) which directly compromised his control and braking capacity.h.That the learned trial Magistrate’s judgment was against the weight of the evidence, the law and the established principles of equity. 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123. 4.This matter arises from a road traffic accident that occurred on 20th October 2023 along the Siaya–Nyadorera Road at the K’Ochieng A area. The Respondent herein (then the Plaintiff) was riding a motorcycle registration number KMEE 386Y Boxer when a collision occurred involving a motor vehicle registration number KCT 758J Mitsubishi Fuso owned by the Appellant (then the Defendant) and driven by his servant or agent. 5.Via a Plaint dated 6th February 2025, the Respondent instituted suit in the lower court seeking general damages for pain and suffering, special damages of Kshs 318,866.00/= future medical expenses and costs asserting that the collision was solely occasioned by the negligent management of the Appellant’s motor vehicle. The Respondent suffered a fracture of the left proximal femur, a head/brain injury and multiple soft tissue injuries. 6.The Appellant robustly resisted the claim via a Statement of Defence and Counterclaim dated 10th February 2025 wherein he denied liability in toto and asserted that the Respondent was 100% to blame for the accident. The Appellant counterclaimed for Kshs 266,500.00/= as special damages for material damage to his lorry and loss of business. 7.After a full trial, the learned trial Magistrate delivered judgment on 20th June 2025 finding the Appellant 70% liable and the Respondent 30% contributorily liable. The trial court consequently awarded the Respondent:I.General damages: Kshs 1,200,000.00/= (less 30% contribution = Kshs 840,000.00/=)II.Special damages: Kshs 300,866.00/=III.Future medical expenses: Kshs 200,000.00/=IV.The Appellant's Counterclaim was dismissed with costs. 8.Joshua Okoth Otolo (PW1) The Plaintiff testified under oath that on 20th October 2023 at approximately 2:00 PM, he was riding his motorcycle registration number KMEE 386Y Boxer along the Siaya–Nyadorera Road traveling from Siaya town toward Nyadorera. He stated that he was maintaining a reasonable speed on the proper left side of the road behind a large funeral procession that was following a hearse. 9.The witness further testified that upon reaching the K’Ochieng A area, a large tipper lorry registration number KCT 758J Mitsubishi Fuso approached from the opposite direction (Nyadorera towards Siaya) at a high speed. He alleged that the lorry was driven right in the middle of the road while attempting to navigate past the funeral procession, failed to yield and entered his lane causing a severe head-on collision. He further stated that he was rendered unconscious by the impact and woke up at the Siaya County Referral Hospital where he discovered he had sustained a fractured left proximal femur, a head injury and multiple soft tissue cuts and bruises. He testified that he underwent surgical intervention to install orthopedic metal implants. On cross-examination, PW1 denied carrying three pillion passengers or riding recklessly. He admitted that while he had produced a comprehensive hospital financial invoice totaling Ksh 297,316.00/=, he did not have corresponding individual cash receipts for the treatment expenditure, though he maintained it reflected his accrued medical liability. He also noted that he would require a future surgical procedure to extract the metal implants from his thigh. 10.Collins Sirumba Holo (DW1) The Defendant testified that he was the registered owner of the motor vehicle registration number KCT 758J Mitsubishi Fuso which operated under the business name 'Business Time'. He disclosed to the court that he was a serving traffic police officer. DW1 explicitly recanted a portion of his verified witness statement dated 10th February 2025 in which he had stated that he was the driver of the vehicle at the material time. He clarified under oath that he was not the driver and was not present at the scene during the accident explaining that the vehicle was actually under the control of his employed driver, Fred Omondi (DW2). 11.He testified that his lorry sustained extensive front-end structural damage to the bumper, grille and radiator incurring repair expenses totaling Kshs 266,500.00/= alongside business losses while the vehicle was grounded. On cross-examination, DW1 admitted that he did not engage an independent motor vehicle assessor to inspect the damage or compile a valuation report prior to undertaking repairs. 12.Fred Omondi (DW2) The Driver testified that he was an employee of the Defendant and was the driver in control of the Mitsubishi Fuso lorry on the material date traveling from Nyadorera toward Siaya town. He stated that upon reaching the K’Ochieng A area, he encountered a dense and chaotic funeral procession blocking the highway. He asserted that he steered the lorry completely off the tarmac lane onto the left earthen shoulder, brought the vehicle to a halt and activated his hazard lights to await the passage of the crowd though he left the engine running. He testified that while stationary, he observed the Plaintiff’s motorcycle emerge from behind the hearse at an excessive speed carrying three pillion passengers. He alleged that the overloaded motorcycle began swaying in a zig-zag manner, lost control, veered off the tarmac lane and crashed directly into the front of his stationary lorry. 13.DW3, DW4, and DW5 Eyewitnesses were local residents who formed part of the funeral procession. They corroborated the testimony of DW2 in material terms testifying that the Defendant’s tipper lorry had pulled completely off the tarmac onto the side road and was stationary with flashing hazard lights. They further observed that the Plaintiff was riding at an unsafe speed, was heavily overloaded with three pillion passengers behind him and lost balance before veering out of his lane and colliding with the parked lorry. 14.The Appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 3rd March 2026. The Respondent despite service, failed to file any submissions. 15.Counsel for the Appellant submitted that the learned trial Magistrate erred fundamentally in fact and in law by finding the Appellant 70% vicariously liable for the accident. It was contended that the weight of the evidence on record overwhelmingly demonstrated that the Respondent was the sole author of his own misfortune and injuries. 16.It was submitted that the trial court failed to properly evaluate the consistent testimonies of five defense witnesses (DW1 to DW5) who clearly established that the Appellant’s motor vehicle, a Mitsubishi Fuso lorry registration number KCT 758J had been driven completely off the tarmac and was stationary on the earthen shoulder with its hazard lights flashing. Counsel argued that a vehicle that is legally and safely parked off the driving lane cannot be held causative of a collision. 17.Counsel further argued that the trial Magistrate misdirected himself by placing undue legal weight on the fact that the driver (DW2) left the engine running. It was submitted that keeping an engine running while temporarily stopped off the road to allow a chaotic crowd to pass does not constitute a statutory infraction or negligence under the Traffic Act (Cap 403). 18.On contributory negligence, Counsel urged the court to find that the Respondent was guilty of gross negligence. It was submitted as uncontroverted fact that the Respondent was riding a single-seat motorcycle while carrying three pillion passengers. Counsel submitted that this statutory violation directly compromised the motorcycle's stability, balance and braking capacity forcing the Respondent to ride in a zig-zag manner, lose control and ram into the Appellant’s stationary lorry. Counsel urged the court to shift liability 100% to the Respondent or, alternatively drastically reduce the Appellant's share. 19.Regarding the award of Kshs 300,866.00/= for special damages, Counsel submitted that the trial court acted in total disregard of the strict proof rule governing special damages in Kenya. Counsel placed reliance on the locus classicus Court of Appeal decision in Hahn v. Singh [1985] KLR 716 submitting that special damages must be specifically pleaded and strictly proved. It was argued that the Respondent failed this test by relying entirely on a hospital financial invoice from Siaya County Referral Hospital totaling Kshs 297,316.00/= 20.Counsel submitted that under Kenyan law, a financial invoice is merely a statement of an unliquidated account or a bill and does not constitute proof of actual expenditure or pecuniary loss. In the absence of official cash receipts demonstrating that the bill was paid or incurred, Counsel submitted that the trial court had no legal basis to award the said sum. The court was urged to disallow the invoice amount entirely. 21.Counsel strongly contested the trial court's award of Kshs 200,000.00/= for future medical expenses. It was submitted that this award was legally unsustainable because the Respondent failed to specifically plead, itemize or quantify the projected costs within the body of the Plaint. 22.Citing the seminal decision in Kenya Bus Services Ltd v. Gituma [2004] 1 EA 91 Counsel submitted that while future medical expenses are a component of general damages, they must be pleaded with reasonable particularity including an approximate cost to give the defense fair notice and an opportunity to challenge the claim. Counsel argued that a mere unquantified prayer at the tail end of the Plaint cannot validate a specific, liquidated judicial award and requested that the entire Kshs 200,000.00/= be set aside. 23.Finally, Counsel submitted that the trial Magistrate erred in dismissing the Appellant's Counterclaim for material damage and loss of business totaling Kshs 266,500.00/= Counsel argued that the Appellant had successfully demonstrated the extent of the physical damage to the lorry's bumper, grille and radiator caused by the impact of the motorcycle and had produced genuine garage repair receipts (Exhibit D2). 24.Invoking the principle in Nkuene Dairy Farmers Co-operative Society Ltd & Another v. Ngacha Ndeiya [2010] eKLR Counsel submitted that in claims for material damage to property, special damages need not be shown to have been fully paid out, provided the fact and extent of the damage are established. It was argued that the lack of an independent accident assessor's report was not fatal to the claim as the structural damage and mechanical expenditure were sufficiently proved by oral and documentary evidence. Counsel prayed for the Counterclaim to be allowed in full with costs. 25.Having meticulously scrutinized the Record of Appeal, the trial court's proceedings, the impugned judgment and the Appellant's submissions, I find that the singular overarching issue for determination is whether this appeal has merit. 26.The Appellant contends that the Respondent was solely to blame for the accident. The defense witnesses (DW1 to DW5) stated that the Appellant’s lorry had been driven off the road and safely parked with hazard lights on because a chaotic funeral procession had occupied the highway. They testified that the Respondent emerged from behind the convoy at an excessive speed riding in a zig-zag manner while carrying three pillion passengers lost control and rammed into the stationary lorry. Conversely, the Respondent (PW1) testified that he was riding along the highway following the hearse when the Appellant's oncoming lorry collided with him head-on in the middle of the road. 27.In evaluating the issue, the trial Magistrate noted glaring material inconsistencies in the Appellant's case. DW1 Collins Sirumba Holo the owner of the vehicle verified a witness statement indicating he was the driver on the material date. Yet during cross-examination, he admitted he was not the driver and was not present. DW2 (Fred Omondi) claimed to be the actual driver. Such misrepresentations touch on the core of credibility. Furthermore, the trial Magistrate noted that the Police Abstract and Occurrence Book (OB) extracts were inconsistent and inconclusive, with indicators that there was an attempt by the Appellant (who was noted to be a traffic police officer) to manipulate the accident records. While the Appellant argued the lorry was stationary, DW2 admitted his engine was still running on the highway when facing a heavy funeral procession. A driver of a heavy commercial vehicle must exercise a higher degree of vigilance when approaching a crowd or procession on a public highway as mandated under Sections 47 and 49 of the Traffic Act (Cap 403). 28.Concurrently, it is uncontroverted that the Respondent was carrying more than one pillion passenger which heavily compromised the stability, braking capacity and management of the motorcycle. This constitutes a clear statutory infraction and contributory negligence. 29.An appellate court will not lightly interfere with a trial court’s apportionment of liability unless it is demonstrated that the trial court misapprehended the facts, applied the wrong law or is clearly wrong .The trial Magistrate weighed these factors balanced against the evidence and apportioned liability at 70:30. I find no misdirection or error in the trial Magistrate's reasoning on this point. The finding on liability is hereby upheld. 30.The trial court awarded special damages to the tune of Kshs 300,866.00/= comprising medical expenses of Kshs 297,316.00/=, a medical report fee of Kshs 3,000.00/= and a copy of records fee of Kshs 550.00/=. The Appellant argues that the sum of Kshs 297,316.00/= was backed only by a hospital financial invoice but no corresponding receipts were produced to prove that the said sum was actually paid or incurred. 31.The law on special damages is deeply entrenched in our jurisprudence. Special damages must not only be specifically pleaded but they must also be strictly proved. In the locus classicus case of Hahn v. Singh [1985] KLR 716, the Court of Appeal held:“Special damages must be specifically pleaded and strictly proved... the court cannot make an award on a matter that has not been proved before it." 32.The legal distinction between an invoice and a receipt in the context of special damages has been heavily litigated. A medical financial invoice is merely a bill or a statement of account; it indicates an intention to charge or an outstanding liability but it does not constitute conclusive proof of expenditure or actual pecuniary loss suffered. Without receipts or absolute proof of payment or discharge of the bill, the threshold of "strict proof" required under Kenyan law is not satisfied (See Tracom Limited & Another v. Hassan Mohammed Adan [2009] eKLR). 33.Because the Respondent failed to produce valid receipts confirming expenditure of the invoice amount, the trial court erred in awarding the sum of Kshs 297,316.00/=. However, the fees for the medical report Kshs 3,000.00/= and search certificates Kshs 550.00/= were sufficiently verified. The award for special damages must therefore be scaled down to Kshs 3,550.00/=. 34.The trial Magistrate awarded Kshs 200,000.00/= for future medical expenses based on a medical report compiled by Dr. Victor Achayo which indicated that the Respondent would require future procedures to remove the orthopedic metal implant in his thigh. The Appellant takes issue with this award on the ground that future medical expenses were never specifically pleaded or quantified in the Plaint. A cursory glance at the Respondent's Plaint dated 6th February 2025 reveals that under the "Particulars of Special Damages", future medical expenses are completely absent. However, in the prayer section prayer (c) explicitly seeks "Future medical expenses". 35.The Court of Appeal in Kenya Bus Services Ltd v. Gituma [2004] 1 EA 91 settled the position that although future medical care falls under the broad rubric of general damages, the need for it is a special asset that must be specifically pleaded and an approximate sum must be provided to avoid spring boarding surprises on the defense. 36.In the more recent decision of Oracle Engineering Limited & Another v. Muliro (Civil Appeal E006 of 2024) [2025] KEHC 5409 (KLR), it was re-emphasized that a court cannot award a specific liquidated sum for future medical treatment if the claimant failed to itemize or give fair notice of the nature and approximate cost of that treatment within the body of their pleadings. By leaving the claim unquantified and un-itemized in the body of the pleadings, the Respondent left the Appellant without a proper opportunity to challenge the medical projection at trial. The trial Magistrate therefore erred in law by awarding a specific sum of Ksh 200,000.00/= that lacked foundational grounding in the particulars of the pleadings. This award is hereby set aside. 37.The Appellant counterclaimed for Ksh 266,500.00/= being repair costs and loss of business and produced repair receipts. The trial Magistrate dismissed the Counterclaim on the basis that the Appellant failed to produce an expert accident assessor/valuation report to establish the exact pre-accident condition, the nexus of the damage and the fairness of the repair costs. 38.The Appellant relies on Nkuene Dairy Farmers Co-operative Society Ltd & Another v. Ngacha Ndeiya [2010] eKLR to argue that in material damage claims, special damages need not be shown to have actually been incurred provided the extent of damage is established. 40.While the principle in Nkuene Dairy Farmers is correct, it highlights that the claimant must still prove the extent of the damage and the reasonable cost of restoration. An assessor's report bridges the gap between raw mechanics' receipts and judicial proof of causation. Without an independent motor vehicle inspection or assessment report, a court cannot verify whether the parts listed in repair receipts were damaged due to the specific accident or due to normal wear and tear of a commercial tipper lorry. The trial Magistrate's decision to dismiss the Counterclaim for lack of proper evidentiary nexus is legally sound and is sustained. 41.The upshot of the foregoing analysis is that this appeal succeeds partially on the issues of special damages and future medical expenses, but fails on the grounds of liability and the counterclaim 42.Accordingly, the decree of the trial court dated 3rd September 2025 is hereby set aside and substituted with the following orders:(a)Liability remains apportioned at 70% against the Appellant and 30% against the Respondent.(b)General Damages for pain and suffering are upheld at Ksh 1,200,000.00/=. Less 30% contribution, the net award is Ksh 840,000.00/=.(c)Special Damages are reduced from Ksh 300,866.00/= to Ksh 3,550.00/=. Less 30% contribution, the net award is Ksh 2,485.00/=(d)The award of Ksh 200,000.00/= for future medical expenses is entirely set aside.(e)The dismissal of the Appellant's Counterclaim is upheld.(f)Total decretal sum payable by the Appellant to the Respondent is Ksh 842,485.00/= together with interest at court rates from the date of the lower court's judgment 20th June 2025 until payment in full.(g)As this appeal has succeeded in substantial part regarding quantum, the Appellant shall have half (50%) of the costs of this appeal. The costs of the lower court remain awarded to the Respondent.It is so ordered. DATED AND DELIVERED AT SIAYA, THIS 17TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:Oduol………………………….for the AppellantOkanda………………………….for the RespondentMaureen……………………….Court Assistant