https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/490

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E1694 OF 2022** **DEVYANI FOOD INDUSTRIES (KENYA) LIMITED** **(Formerly Sameer Agriculture & Livestock (K) Limited).................................PLAINTIFF** **VERSUS** **AMAL HAULIERS LIMITED.....................................................................DEFENDANT** **JUDGMENT** **Background** 1. The Plaintiff instituted this suit by a Plaint dated 28th November 2022 seeking judgment against the Defendant for: 2. Special damages of Kshs. 216,408/=; 3. Interest; 4. Costs of the suit; and 5. Any other relief this Court deems fit. 6. The Plaintiff's claim arises from damage occasioned to a consignment of Daima whole milk which the Defendant had contracted to transport from Nairobi to the Plaintiff's distributor in Mombasa. It is pleaded that during transportation, the consignment was damaged through the negligence and breach of contract by the Defendant, thereby occasioning loss which was subsequently indemnified by the Plaintiff's insurer, Mayfair Insurance Company Limited, under the doctrine of subrogation. 7. The Defendant entered appearance and filed a Statement of Defence denying liability. Although the Defendant admitted the existence of the transportation agreement and the Court's jurisdiction, it denied negligence, breach of contract and liability for the alleged loss and prayed for dismissal of the suit with costs. 8. The Plaintiff thereafter filed a Reply to Defence reiterating the averments contained in the Plaint and maintaining that the suit had been properly instituted under the doctrine of subrogation. **Hearing** 1. The matter proceeded for hearing on 20th May 2026.The Plaintiff called two witnesses: PW1 – Paul Chege, an adjuster from Independent Adjusters Kenya Limited trading as McLarens Chartered Loss Adjusters & Surveyors. PW2 – Lawrence Kegicha Momanyi, a Legal Officer from Mayfair Insurance Company Limited. The witnesses adopted their respective witness statements and produced the Plaintiff's documentary evidence. 2. Although the Defendant had entered appearance and filed a Statement of Defence, it failed to attend the hearing despite being duly served with the hearing notice. No witness testified on its behalf and no documentary evidence was produced in rebuttal. Consequently, the Plaintiff's evidence remained uncontroverted. The Plaintiff subsequently filed written submissions. **Plaintiff's Case** 1. The Plaintiff's case is that on or about 29th November 2019 it entered into an agreement with the Defendant whereby the Defendant undertook to transport a consignment of Daima whole milk from Nairobi to the Plaintiff's distributor, Finsbury Trading Limited, situated in Mombasa. The consignment comprised 684 cartons of 200ml milk packets and 3,100 cartons of 500ml milk packets valued at Kshs.1,181,165.42. The goods were loaded onto motor vehicle registration KBS 488N/ZC 4509 belonging to the Defendant. 2. According to the Plaintiff, the Defendant was contractually obligated to transport and deliver the goods safely and in merchantable condition. However, upon offloading on 3rd December 2019, it was discovered that the milk packets forming the bottom tiers had ruptured, causing extensive spillages inside the container. 3. The Plaintiff pleaded that the loss resulted from the Defendant's negligence and breach of contract, particulars of which included improper packing, careless transportation, excessive speed, failure to observe the contractual obligations and failure to exercise reasonable care while transporting the consignment. 4. The Plaintiff further pleaded that it had insured the consignment under a Goods-in-Transit Policy issued by Mayfair Insurance Company Limited. Following assessment of the loss, the insurer settled the Plaintiff's claim and consequently instituted the present proceedings in the Plaintiff's name under the doctrine of subrogation. Evidence of PW1 1. PW1, Paul Chege, testified on behalf of Independent Adjusters Kenya Limited trading as McLarens Chartered Loss Adjusters & Surveyors.He produced the preliminary and final survey reports concerning the damaged cargo. According to the investigations, the Plaintiff had entrusted the Defendant with transporting 684 cartons of 200ml milk packets and 3,100 cartons of 500ml milk packets valued at Kshs.1,181,165.42. 2. The goods were loaded onto the Defendant's motor vehicle registration KBS 488N/ZC 4509 on 29th November 2019. Although the vehicle arrived in Mombasa on 30th November 2019, unloading only took place on 3rd December 2019, when it was discovered that the bottom tiers had ruptured causing spillages throughout the container. 3. PW1 testified that investigations established there had been no road traffic accident or other incident during transit. The truck driver confirmed that no unusual occurrence had taken place during the journey. 4. Upon inspection, the container itself was found intact without any perforations capable of allowing rainwater into the cargo compartment. The investigators therefore ruled out water ingress as the cause of damage. 5. Instead, the adjusters concluded that the damage was occasioned by head pressure exerted by cartons stacked above the bottom tiers, compounded by the normal rigours of road transportation and prolonged storage inside the hot container before offloading. 6. PW1 confirmed that after assessment: 42 packets of 200ml milk were damaged; 6,877 packets of 500ml milk were damaged; and that the adjusted loss after application of the policy excess amounted to Kshs.159,858.05. PW1 also produced the official search confirming that motor vehicle KBS 488N belonged to the Defendant. Evidence of PW2 1. PW2, Lawrence Kegicha Momanyi, a Legal Officer of Mayfair Insurance Company Limited, testified regarding the insurance aspect of the claim. 2. He confirmed that: the Plaintiff maintained a valid Goods-in-Transit insurance policy with Mayfair Insurance Company Limited; premiums had been duly paid; following the incident, the Plaintiff lodged a claim under the policy; Independent Adjusters Kenya Limited assessed the loss; Mayfair Insurance Company Limited settled the adjusted claim of Kshs.159,858.05; Mayfair further paid Kshs.56,550 being the loss adjusters' fees. 3. PW2 produced the remaining documentary exhibits including the insurance policy, endorsement, claim approval note, discharge voucher, invoices, receipts and payment documents evidencing settlement. **Defendant's Case** 1. The Defendant filed a Statement of Defence denying negligence and breach of contract. It admitted only the existence of the parties, the transportation agreement and the Court's jurisdiction while denying responsibility for the damaged cargo and disputing the Plaintiff's entitlement to the amounts claimed. It further challenged the Plaintiff's reliance on the doctrine of subrogation. 2. However, despite having filed the Defence, the Defendant neither attended the hearing nor tendered evidence to support the pleaded denials. Consequently, the Defence remained a statement of unproved allegations. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether the Plaintiff has locus standi to institute the suit under the doctrine of subrogation. 3. Whether the Defendant was in breach of the transportation agreement and/or negligent in transporting the Plaintiff's consignment. 4. Whether the Plaintiff proved its claim for special damages. 5. Who should bear the costs of the suit. **Analysis** Whether the suit is properly before the Court under the doctrine of subrogation 1. The Defendant pleaded that no claim founded upon subrogation lay against it. However, beyond that pleading, no evidence was adduced in support of that position. PW2 produced documentary evidence establishing the existence of a valid Goods-in-Transit insurance policy issued by Mayfair Insurance Company Limited in favour of the Plaintiff. He further produced the claim approval note, discharge voucher and payment documents demonstrating that the insurer settled the Plaintiff's loss in the sum of Kshs.159,858.05 following assessment of the damaged cargo. 2. The Plaintiff relied on Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] eKLR (Plaintiff's authority), wherein the Court of Appeal explained that upon indemnifying an insured, an insurer steps into the shoes of the insured and acquires the insured's rights against the party responsible for the loss. The Plaintiff also relied on Leli Chaka Ndoro v Maree Ahmed & S.M. Lardhi [2017] eKLR (Plaintiff's authority) in support of the same principle. 3. I respectfully agree with that exposition of the law. The documentary evidence produced before this Court establishes that the Plaintiff was insured, the loss occurred during the currency of the policy, and the insurer indemnified the Plaintiff. Consequently, the insurer became entitled to pursue recovery through proceedings instituted in the Plaintiff's name. 4. The Defendant having produced no evidence to challenge the policy, the settlement or the insurer's right of subrogation, I find that the present proceedings are properly before the Court. **Analysis and Determination** Whether the Defendant is liable for breach of contract and negligence 1. The Plaintiff's claim is founded both in contract and negligence. It was incumbent upon the Plaintiff to establish, on a balance of probabilities, that the Defendant failed to discharge its contractual obligations and duty of care as a carrier of the Plaintiff's goods. 2. There is no dispute that the parties entered into a contract for the transportation of the Plaintiff's milk consignment from Nairobi to Mombasa. Indeed, the Defendant admitted paragraphs 3, 4 and 5 of the Plaint which pleaded the existence of the transportation agreement, the terms thereof and the loading of the consignment onto motor vehicle registration number KBS 488N/ZC 4509. The only dispute relates to whether the Defendant was responsible for the damage to the cargo. 3. PW1, an independent loss adjuster, gave detailed evidence regarding the investigations undertaken following the incident. His testimony was corroborated by the Final Report dated 15th September 2020, which was produced as an exhibit. 4. The report established that: the consignment was delivered to the Defendant in good condition; the vehicle arrived safely in Mombasa; no road traffic accident or other untoward incident occurred during transit; upon offloading, substantial quantities of milk packets on the bottom tiers had ruptured; the damage resulted from excessive pressure exerted by the upper tiers coupled with the rigours of road transportation and prolonged storage inside the container before offloading. 5. The Court notes that the Defendant neither challenged nor rebutted this expert evidence. Although a Statement of Defence was filed, no witness was called to explain the circumstances under which the damage occurred or to contradict the adjuster's findings. 6. The Defendant equally failed to call the driver of motor vehicle registration number KBS 488N/ZC 4509, despite the fact that the circumstances surrounding the transportation of the goods lay peculiarly within its knowledge. 7. Section 107(1) of the Evidence Act places the burden of proof upon the party asserting a fact. The Plaintiff discharged that burden by producing oral and documentary evidence demonstrating that the consignment was delivered to the Defendant in good condition but reached the consignee in a damaged state. 8. Once that evidence was tendered, the evidential burden shifted to the Defendant to explain how the damage occurred notwithstanding the exercise of reasonable care. No such explanation was forthcoming. 1. The Defendant merely filed general denials but elected not to adduce evidence. It is settled law that pleadings are not evidence. Allegations contained in a defence remain mere assertions unless supported by evidence at trial. 2. Further, I agree with the Plaintiff's submission that the Defendant, as a bailee entrusted with transporting the Plaintiff's goods, owed a contractual and common law duty to transport and deliver the goods in the same condition in which they were received. 3. The evidence before Court demonstrates that: the goods were delivered to the Defendant intact; they were returned damaged whilst in the Defendant's exclusive custody; the damage was attributable to improper stacking and handling during transportation. I therefore find that the Defendant breached both its contractual obligations and duty of care owed to the Plaintiff.Accordingly, I find the Defendant 100% liable for the loss suffered. Whether the Plaintiff proved special damages 1. The Plaintiff seeks special damages amounting to Kshs. 216,408/=, particularised as follows: 2. Adjusted insurance claim – Kshs. 159,858/= 3. Loss adjusters' fees – Kshs. 56,550/= 4. Special damages must not only be specifically pleaded but must also be strictly proved. The Plaintiff relied on China Wu Yi Limited & Another v Irene Leah Musau [2022] eKLR (Plaintiff's authority), wherein the Court reiterated the principles stated in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177 (authority referred to by the Plaintiff) that special damages must be specifically pleaded and proved. The Plaintiff also relied on Joseph Kipkorir Rono v Kenya Breweries Limited & Another, Kericho HCCA No. 45 of 2003 (Plaintiff's authority), where the Court held that special damages relate to actual pecuniary loss already incurred and must therefore be specifically pleaded and proved. 5. I respectfully adopt those legal principles.In the present case, the Plaint specifically pleaded the amount of Kshs. 216,408/=. The Plaintiff further produced: the insurance policy; the Claim Approval Note; the Final Loss Adjuster's Report; the Discharge Voucher; invoices; receipts; payment voucher; proof of payment by Mayfair Insurance Company Limited. 6. The Claim Approval Note shows that the adjusted loss payable after deduction of the policy excess amounted to Kshs.159,858.05, which was subsequently settled by the insurer. 7. PW2 further testified that the insurer paid Kshs.56,550/= as the loss adjusters' fees and produced supporting invoices and receipts. The Defendant neither objected to the production of those documents nor challenged their authenticity.I am therefore satisfied that the Plaintiff has proved, on a balance of probabilities, the entirety of the special damages claimed. Accordingly, I award the Plaintiff Kshs.216,408/=. Interest 1. The Plaintiff prayed for interest from the date of filing suit.The principal claim is one for special damages. The law is settled that interest on special damages ordinarily runs from the date of filing suit because the loss is ascertainable at that point.I therefore award interest on the sum of Kshs.216,408/= at court rates from the date of filing suit until payment in full. Costs 1. Costs ordinarily follow the event under Section 27 of the Civil Procedure Act. The Plaintiff has substantially succeeded in its claim and there is no reason to depart from the general rule. The Plaintiff is therefore awarded the costs of the suit. **Disposition** 1. In the result, judgment is entered for the Plaintiff against the Defendant as follows: 2. Liability is entered against the Defendant at 100%. 3. The Plaintiff is awarded special damages in the sum of Kshs.216,408/=. 4. The said sum shall attract interest at court rates from the date of filing suit until payment in full. 5. The Plaintiff shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**