https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13116

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. 17 OF 2022** **DK RONO, J** **29 JULY 2026** **BETWEEN** **DORCAS GAICHUGI.................................................................................APPELLANT** **AND** **FREDRICK GATOBU.....................................................................1ST RESPONDENT** **SPEED DRIVE LIMITED..............................................................2ND RESPONDENT** *(Being an appeal from the Judgment and Decree of the Resident Magistrate’s Court at Meru (Hon. E. Tsimonjero, RM) delivered on 28th January 2022 in Meru CMCC No. E37 of 2020)* **JUDGMENT** 1. This is an appeal against the judgment of the Resident Magistrate’s Court at Meru delivered on 28th January 2022 dismissing the Appellant’s claim for damages arising from a road traffic accident that occurred on 2nd February 2020 along the Embu–Nairobi Highway. 2. The Appellant, who was the Plaintiff before the trial court, instituted a suit against the Respondents seeking compensation for damage occasioned to her motor vehicle registration number **KBF 297D**, following a collision with motor vehicle registration number **KCW 734U**, which was owned by the 2nd Respondent and driven by the 1st Respondent. 3. The Appellant pleaded that the accident was solely caused by the negligence of the 1st Respondent and that the 2nd Respondent was vicariously liable as the owner of the offending motor vehicle. She claimed special damages for the value of the damaged vehicle, assessment charges and towing expenses together with damages for loss of user. 4. The Respondents entered appearance and filed a Defence denying liability. However, despite filing a Defence, they neither attended the hearing nor called any evidence to support the averments contained therein. The matter consequently proceeded by way of formal proof. 5. The Appellant testified as the sole witness and produced, among other documents, the Police Abstract, motor vehicle search, assessment report and receipts for assessment and towing charges. 6. The learned trial magistrate dismissed the suit on the basis that the Appellant had failed to prove negligence sufficiently. The court was of the view that the evidence did not provide adequate details regarding the circumstances of the accident, including the speed of the vehicles, weather conditions and point of impact. 7. The court further expressed the view that the Appellant may have already been compensated by her insurer and that allowing the claim could result in double compensation. Aggrieved by that decision, the Appellant lodged the present appeal. 8. The Appellant challenged the decision of the trial court on the grounds that the learned magistrate erred in dismissing an uncontroverted claim, misapprehended the burden of proof in civil proceedings, relied on speculation regarding insurance compensation and failed to award damages that had been pleaded and proved. 9. This being a first appeal, the duty of this Court is to reconsider, re-evaluate and independently assess the evidence presented before the trial court and reach its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 10. In *Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*, the Court of Appeal for East Africa stated that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though making allowance for the fact that it did not observe the witnesses. 11. Similarly, in *Peters v Sunday Post Ltd [1958] EA 424,* the Court emphasized that an appellate court is entitled to review the evidence to determine whether the conclusions of the trial court should stand, but must exercise caution where findings are based on the credibility of witnesses. 12. Having considered the record of appeal, the submissions and the judgment appealed from, the issues for determination are: 13. Whether the Appellant proved negligence against the Respondents; 14. Whether the Appellant proved entitlement to damages. *Whether the Appellant Proved Negligence* 1. The burden of proof in civil proceedings rests upon the party who alleges. Sections 107, 108 and 109 of the Evidence Act place the obligation upon a claimant to prove the facts upon which liability is founded. 2. The standard of proof is, however, on a balance of probabilities. In *Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, t*he Court of Appeal stated that a plaintiff succeeds where the evidence presented makes his or her version more probable than not. 3. The Appellant testified that the accident occurred due to the negligent driving of the 1st Respondent. Her evidence was supported by a Police Abstract confirming the occurrence of the accident and identifying the vehicles involved and the 1st Respondent as the driver of the Respondents’ vehicle. 4. Although a police abstract is not conclusive proof of negligence, it constitutes relevant evidence of the occurrence of an accident unless displaced by contrary evidence. In *Lake Flowers Limited v Cila Francklyn Onyango Ngonga & Another [2008] eKLR,* the Court of Appeal recognised the evidential value of a police abstract in establishing the occurrence of an accident. 5. In this case, the Police Abstract and the Appellant’s testimony were never challenged. More importantly, the Respondents did not call evidence to controvert the Appellant’s account. 6. The failure by the Respondents to adduce evidence did not automatically entitle the Appellant to judgment, since the burden of proof remained upon her. This principle was stated in *Kirugi & Another v Kabiya & 3 Others [1987] KLR 347*, where the Court of Appeal held that the burden of proof remains with the plaintiff throughout the proceedings. 7. This court, having evaluated the evidence on record, is satisfied that the Appellant established a prima facie case which remained unanswered. With respect, the learned trial magistrate adopted an overly restrictive approach by requiring the Appellant to provide every minute detail surrounding the accident. The law requires proof on a balance of probabilities, not proof beyond reasonable doubt. 8. The absence of details such as the precise point of impact or weather conditions did not, in the circumstances of this case, render the Appellant’s evidence incapable of belief. The essential question was whether the evidence before the court demonstrated that the Respondents’ vehicle was more likely than not negligently driven. 9. The Respondents, being the parties who possessed direct knowledge of the circumstances under which their vehicle was being driven, had the opportunity to present their version of events but elected not to do so. 10. Having reconsidered the evidence, I find that the Appellant proved negligence against the Respondents on a balance of probabilities. The trial court therefore erred in dismissing the claim on that basis. *Whether the Appellant Proved Damages* 1. Special damages must be specifically pleaded and strictly proved. This principle was affirmed by the Court of Appeal in *Hahn v Singh [1985] KLR 716.* 2. The Appellant pleaded the value of the damaged vehicle, assessment charges and towing expenses. The assessment report prepared by Elite Automobile Valuers & Assessors Limited established that the vehicle had suffered damage beyond economical repair. The report assessed the pre-accident value at **Kshs.450,000** and salvage value at **Kshs.150,000**, resulting in a net loss of **Kshs.300,000**. 3. The Appellant further produced receipts proving assessment charges of **Kshs.5,000** and towing charges of **Kshs.33,000**. 4. The Respondents did not challenge the assessment report or produce any contrary valuation. 5. I therefore find that the Appellant strictly proved special damages amounting to: 6. Net value of vehicle – Kshs.300,000; 7. Assessment charges – Kshs.5,000; and 8. Towing charges – Kshs.33,000. 9. The total proved special damages are therefore **Kshs.338,000**. 10. With regard to loss of user, the Appellant claimed Kshs.4,300 per day. However, no evidence was produced to demonstrate how that figure was arrived at or that the vehicle generated such income. 11. Loss of user is a claim in the nature of special damages and must be strictly proved. In *David Bagine v Martin Bundi [1997] eKLR and Ryce Motors Limited & Another v Elias Muroki [1996] eKLR*, the Court of Appeal emphasised that such claims must be supported by evidence of actual loss. 12. In the absence of documentary evidence establishing the alleged daily income, this Court is unable to award damages under that head. 13. Having reconsidered the entire record, this Court finds that the learned trial magistrate erred in dismissing the Appellant’s claim. The Appellant proved negligence against the Respondents and strictly proved special damages. 14. The appeal is therefore allowed in the following terms; 15. The judgment and decree of the Resident Magistrate delivered on 28th January 2022 in Meru CMCC No. E37 of 2020 are hereby set aside and substituted with judgment in favour of the Appellant. 16. Judgment is entered for the Appellant against the Respondents jointly and severally as follows: 17. Special damages – **Kshs.338,000**; 18. Interest on special damages at court rates from the date of filing suit until payment in full. 19. The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 29th DAY OF July, 2026. DK RONO **JUDGE OF THE HIGH COURT**