https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11146

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **HCCA NO. E049 OF 2024.** **DHL EXCEL SUPPLY CHAIN KENYA LIMITED .... APPELLANTS** **VERSUS** **VERONICA MASILI .......................................... RESPONDENT** ***(Being an appeal arising from the judgment of Hon. Edward Oboge delivered on 11th March, 2024 in Nakuru SCCC No. E564 of 2023)*** **JUDGEMENT** 1. In his statement of claim dated 31st July, 2023 the appellant averred that on 30th December, 2023 its driver one Catherine Okoth was lawfully driving its motor vehicle registration number, KCC 745Y, CRV Honda along Nakuru–Nairobi Highway, when the respondent negligently drove, managed and/or controlled motor vehicle registration number KBH 281D Toyota causing it to crush on the left-hand rear side of the claimant’s motor vehicle causing it extensive damages. The appellant, further, averred that the loss and damage it suffered amounted to Ksh. 272,900, borne by the claimant’s insurer, Britam Insurance Co. (K) Limited. 2. The particulars of the aforesaid damages were outlined by the appellant as follows: - **Cash in lieu Ksh. 210,000** **Assessment fee Ksh. 6,380** **Loss of use Ksh. 30,000** **Investigation fee Ksh. 26,520** **Total Ksh. 272,900** 1. In response, the respondent denied the appellant’s claim. The respondent also averred subject accident herein was solely or substantially caused by the appellant’s careless, recklessness and negligence. The respondent, further avered that cost for repairs of motor vehicle KCC is exaggerated and or inflated. 2. CW1, No. 58456 CPL Jane Wanjiru Nderitu confirmed that an accident occurred involving motor vehicles registration numbers KBH 781D and KCC 745Y along Nakuru – Nairobi Road near Pipeline and that KBH 781 D was blamed for the accident. She produced police abstract of the accident as an exhibit. On cross-examination, she stated that the claimant’s vehicle was hit on the rear bumper. 3. CW2, George Kego, is a motor vehicle assessor. He has worked for Integrated Motor Assessors for 16 years. He holds a Diploma in Motor Vehicle Engineering. CW2, further, stated that they were instructed to assess motor vehicle registration number KCC 745Y Honda CRV by Britam Insurance and he found that the vehicle suffered various damages. He produced his assessment report as an exhibit. CW2 also stated the claimant’s vehicle was hit from the rear side. On re-examination, he confirmed that the estimate price is consistent with price marked at that time of the accident. 4. CW3, Catherine Okoth, stated at the time of the subject accident herein, DHL Excel supply chain Limited was registered and/or beneficial owner of motor vehicle registration KCC 745Y CRV Honda. On 30th December, 2020, CW3 stated, at around 12 noon she lawfully drove motor vehicle registration number KCC 745 Y CRV Honda as she travelled from Kisumu to Nairobi along with her sister and daughter. Upon reaching Nakuru town, CW3 stated, he encountered heavy traffic and was forced to slow down. Suddenly, CW3 stated, she was hit from behind by motor vehicle registration number KBH 281D. Due to the impact, CW3 stated, the rear of her vehicle was damaged as evidenced in motor vehicle assessment report dated 12th January, 2020. 5. On 30th December, 2020, CW3 stated, she reported the accident at Nakuru Central Police station and thereafter, to her insurer’s M/s Britam General Insurance Company. On authorization by the insurance DHL Excel Supply Chain Kenya Limited, CW3, stated he was issued with a discharge voucher of a total amount of Ksh.210,000 for the loss herein. 6. CW3, further, stated a re-inspection report was conducted by an internal assessor at Britam General Insurance who ascertained that the claimant’s car had been restored to its original form. 7. A tracing investigation, CW3 stated, was later carried out by Third Eye Assessors, who established the registered owner/beneficiary of motor vehicle registration number KBH 281 D. 8. CW4, Peterscott Mutua is a Legal Officer at Britam Insurance Company Limited. CW4, further, stated Britam Insurance Company (Kenya) Limited is the insurer of motor vehicle registration number KCC 745 Y, CRV Honda owned by the appellant at the time of the accident. Upon fulfilling insurance requirements, CW4 stated, the insured was issued with policy number NRB/MPRV/POL/2181840 and a comprehensive insurance cover commencing 31/5/2020 to 31/5/2021. On 30/12/2020, CW4, stated, the insured reported to their offices that their motor vehicle registration number KCC 745Y, CRV Honda was involved in an accident along Nairobi – Nakuru highway leading to extensive damage and filled motor vehicle accident claim form. 9. Further, CW4 stated, they instructed Integrated Motor Assessors Limited to assess the extent of the subject motor vehicle’s damage and they gave them an assessment report dated 12/1/2021 and they were paid Ksh.6,380 as assessment fees by the insurer. 10. Thereafter, CW4 stated, they issued Catherine Susan Atieno Okoth an authorization by their insured, the appellant a discharge voucher of a total of Ksh.210,000. They also instructed assessors, CW4 stated, to re-inspect the repaired motor vehicle to ensure it was repaired as per the assessment report gave a re-inspection report dated 28th January, 2021. PW4, further, stated they paid Starcar Rental & Recovery Limited Ksh.30,000 for charges of car hire services of motor vehicle registration number KCG210 M. They also instructed Third Eye Assessors, PW1 stated, to investigate the whereabouts of negligent third party and paid them Ksh.26,520 as investigation fees. In all, CW4, the insurer spent Ksh.272,900 in settling their insured claim. To support the alleged payments the CW4 produced: 11. A copy of policy scheme document marked “DESC 3”. 12. A copy of payment voucher for Ksh.6380 to Integrated Motor Assessors Limited for assessment fees marked Exhibit “DESC 9”. 13. A copy of payment voucher as cash in lieu Ksh.63,000 paid to Catherin Susan Atieno Okoth marked Exhibit “DESC 14”. 14. A copy of Star Car Rental & Recovery Limited invoice for car hire charges of Ksh.30,000 marked “DESC 15”. 15. A copy of payment voucher for Ksh. 30,000 to Star Car Rental & Recovery Limited for loss of use marked “DESC 16”. 16. A copy of invoice for Ksh.26,520 from Third Eye Assessors marked “DESC 18”. 17. A copy of payment voucher for Ksh.26,520 to Third Eye Assessors for investigation fees. 18. On the other hand, the respondent Veronica Masila, RW1, stated that motor vehicle registration number KBH 218 D is registered in her name. On 30th December, 2020, RW1 stated, the vehicle was driven from Kitale to Nairobi by one Patrick Sunguti. 19. As the the driver of her motor vehicle drove on dual carriage towards Nairobi, near Nakubreeze Hotel, RW1 stated, motor vehicle registration no. KCC 745Y CRV Honda entered in front of their lane and their driver applied brakes and allowed the motor vehicle to enter the lane. The driver, however, RW1 stated went further and tried to join the lane on their right but since she was straddling the white lane and could not join the lane to the right because of the slow traffic, she suddenly and without warning veered back to their lane. Its left side of the bumper, RW1 stated, brushed against the front grill of the respondent’s vehicle partially dislodging the grill. The force of the brushing impact, RW1 stated, also partially dislodged the left side of the bumper for motor vehicle registration number KCC 745Y removing about four clips. 20. RW2, Patrick Sunguti, stated that on the subject date herein he drove to Nairobi from Kitale with his family in motor vehicle registration No. KBH 281D. Slightly past Nakuru town, RW2 stated, traffic started building up and vehicles moved at slow pace. RW2, further, stated he drove on the left lane. As they approached Nakubreeze Hotel, RW3 stated, motor vehicle registration No. KCC 745Y CRV Honda entered the lane Infront of them and he applied brakes and allowed the said motor vehicle to enter the lane. Instead of remaining on their lane, RW2 stated, the driver of the said vehicle went further and tried to join the lane on their right but since she was straddling the white lane and could not join the lane on their right because of the slow traffic, she suddenly and without warning veered back to their lane and the left side of her vehicle’s bumper brushed against the front their grill partially dislodging it. 21. In its judgement, the trial court found that the police abstract does not have the name of the claimant as the owner of motor vehicle registration number KCC 745 Y. The court also found this omission to be fatal because there was nothing to show the claimant was the owner of motor vehicle registration number KCC 745Y at the time of the accident. The trial court, therefore, found liability was not proved by the appellant on a balance of probabilities in this matter and dismissed the suit with costs. 22. Being dissatisfied with the judgement and order of trial court this appellant preferred this appeal. The appeal is based on 9 grounds which can be summarised as follows: - 23. **That the learned trial magistrate erred and exercised its discretion wrongly when it struck out the claimant’s suit against the respondent by failing to consider the claimant’s statement of claim, claimant’s supporting documents adduced during the hearing and in particular the police abstract in determining the issue of liability.** 24. **That the learned trial magistrate erred by unfairly striking out the claimant’s suit without the respondent challenging the particulars of ownership of the appellant’s motor vehicle as the same were not raised by the respondent in her pleadings and during hearing at the trial court.** 25. **Whether the respondent is entitled to special damages amounting to Kshs.272,000 claimed in the trial court.** 26. The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (**see: Selle vs Associated Motor Boat Company (1968) EA).**. 27. Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified four issues for determination The issue for determination in this matter is whether there was proof that the appellant was the owner of the subject motor vehicle herein. The police abstract produced by CW1 Jane Wanjiru Nderitu does not indicate the owner of motor vehicle registration No. KCC 745Y, which the appellant claims ownership. The appellant also did furnish any other proof of ownership of the vehicle. This court, therefore, agrees with the finding of the trial court that the appellant failed to prove ownership of motor vehicle registration no. KCC 745Y on balance of probabilities. Consequently, the trial court was right in finding that the respondent was not liable in this matter. 28. In their submissions, the appellant sought their insurer to be paid the special damages claimed herein. This court, however, notes that the appellant relied only on copies of vouchers and invoices to support its claim for special damages of Kshs.272,000. Even if the appellant claim on liability was proved, this court finds that vouchers and invoices do not constitute sufficient proof for special damages claimed herein. There is no evidence that that appellants insurer actually paid the amount claimed. This appeal lacks merit and the same is dismissed with costs. 29. The upshot of my findings above is this appeal lacks merit and the same is dismissed. As costs follow the event, the respondent is costs of appellant and lower court costs payable by the appellant. **Dated, signed and delivered online via MS Teams platform this 14th day of July 2026.** **Hon. P. K. Rotich** **JUDGE** **In the presence of:** Onuonga for Appellant Andati for the Respondent CA - Kipchirchir