Eres Ltd v Rentco Africa Ltd & another (Civil Case E188 of 2024) [2026] KEMC 760 (KLR) (16 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E188 OF 2024** **ERES LIMITED.……....….………………………………………………....................PLAINTIFF** **VERSUS** **RENTCO AFRICA LIMITED………...……………….…………..………….1ST DEFENDANT** **MOMBASA CEMENT LIMITED……………………………………………..2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff instituted this suit through a Plaint dated 09th May 2024 seeking judgment against the Defendants jointly and severally for: 2. *Loss and damages Kshs. 413,160/=* 3. *Costs of the suit* 4. *Interest on (a) and (b) above* 5. The Plaintiff pleaded that the cause of action herein arose on 10th May 2021 at around 1900hrs along Bungoma – Malaba road around Kimwanga area when their driver was driving their motor vehicle registration number KCF 029 G/ZE 8302 (“the Plaintiff’s motor vehicle”) only for the Defendants’ motor vehicle registration number KCF 029 G/ZE 8302 to hit their motor vehicle from behind thereby causing damage to it. 6. Further, the Plaintiff averred the accident was solely caused by the Defendants’ negligent acts and omissions set out in paragraph 8 of the Plaint. They also added that Sanlam General Insurance Limited (“the Plaintiff’s insurer”) made good their loss by expending Kshs. 413,160/= being cash in lieu payment of Kshs. 372,500/=, assessor’s fees of Kshs. 12,760/= and tracing fees of Kshs. 27,900/=. 7. It is against this backdrop that the Plaintiff filed this subrogation suit on behalf of its insurer for the recovery of Kshs. 413,160/= from the Defendants. 8. The 1st Defendant neither entered appearance nor filed a Statement of Defence. The 2nd Defendant entered appearance and filed a Statement of Defence dated 03rd September 2024 putting the Plaintiff to strict proof of all the averments in their Plaint. 9. The 2nd Defendant pleaded in the alternative that if the accident herein occurred, then the same was solely or contributed to by the Plaintiff and the Plaintiff’s negligent acts and omissions pleaded in paragraph 9 of their Statement of Defence. 10. Consequently, this matter was set down for hearing for the Plaintiff and the 2nd Defendant to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 No. 768XXX PC Isaac Kimani Njuguna** of Bungoma Traffic Base produced a police abstract dated 11th May 2021 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 36/11/05/2021 as an exhibit. He stated that the driver of the Defendants’ motor vehicle was blamed for the accident. He added that CPL Kiboi, who proceeded on transfer, investigated the case. 2. He admitted in cross-examination that he did not visit the scene of the accident, and did not participate in investigating the circumstances under which the accident occurred. He also conceded that the OB extract which he was referring to in stating the circumstances of the accident had not been produced as an exhibit before this court. 3. **PW2 Joshua Wachira Macharia** was the Plaintiff’s driver at the time of the accident. He adopted his witness statement dated 09th September 2024 as his evidence in chief. He blamed the Defendants’ motor vehicle for hitting the Plaintiff’s motor vehicle from behind on the date of the accident. He produced the accident claim form and driving licence as exhibits. 4. He added in cross-examination that the Plaintiff’s motor vehicle was damaged in front as a result of the impact from behind occasioned by the Defendant’s motor vehicle. 5. **PW3 Raymond Omondi** a Legal Officer at the Plaintiff’s insurer, produced the Plaintiff’s motor vehicle insurance policy issued by Sanlam as well as a discharge voucher, payment requisitions, and bank remittances showing that the Plaintiff’s insurer made good the Plaintiff’s loss arising from the accident herein. 6. **PW4 Kevin Motaboni,** an investigator at Sunrays Investigators, testified that his former colleague, Lemington Nyamu, conducted investigations in a bid to trace the Defendants’ motor vehicle owner. He produced the investigation report as an exhibit. **2nd** **Defendant’s Case** 1. The 2nd Defendant did not call any witnesses. It thus follows that the averments in the 2nd Defendant’s Statement of Defence remain allegations which this court will not rely on in determining this case. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, and the written submissions filed by the parties herein. 2. The instant suit is a subrogation claim. The doctrine of subrogation was defined in **Egypt Air Corporation v Suffish International Food Processors (U) Ltd and Another [1999] 1 EA 69** as hereunder- *“The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity and gains its operative force from payment under that contract; the essence of the matter is that*subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. *If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.” (emphasis added).* 1. Still on what a subrogation claim entails, the court in **Opiss vs Lion of Kenya Insurance Company Civil Appeal No 185 of 1991** stated that- *“The right to subrogate does not create a privity of contract between the insurance company and the third party; it only gives the insurance company the right to take over the rights and privileges of the insured and therefore must be brought in the name of the insured.” From the foregoing there appears to be three issues for consideration in this subrogation claim: whether there was a binding and operative contract of indemnity between the Respondent and the Insurance company in the first instance; whether the insurance company made payment to the claimant pursuant to the original indemnity contract to which they now seek reimbursement; and whether the Respondent is entitled to the sum awarded by the Trial court.”* 1. Lastly, in **Kenya Power & Lighting Company Limited vs Julius Wambale & Another [2019] eKLR**, the court set the conditions whereupon the doctrine of subrogation can be invoked as follows: *“The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party.”* 1. The common thread running through the authorities above is that for a suit brought under the doctrine of subrogation to succeed, the Plaintiff must prove on a balance of probabilities that after their insured motor vehicle was damaged in an accident or an insured risk attaching, their insurer made good their loss, and that the accident or the risk which gave rise to his loss was caused by a third party (“the Defendant”) who ought to indemnify the Plaintiff’s insurer. 2. Having fully appreciated the ingredients of the claim under the doctrine of subrogation, this court will proceed to determine whether the Plaintiff proved their case on a balance of probabilities. 3. The uncontroverted evidence in the police abstract on record is that the accident herein occurred and the same was reported to the police. The police abstract and the copy of records on record for the Defendants’ motor vehicle show that the 2nd Defendant was the registered owner and the beneficial owner for motor vehicle registration number KDB 937 S at the time of the accident. 4. Given this court’s finding in paragraph 21 above, the Plaintiff’s suit against the 1st Defendant cannot be sustained. 5. In addition to the above, nothing on record suggests that the drivers of the Plaintiff’s and the 2nd Defendant’s motor vehicle lacked the said motor vehicles’ owners’ authority to drive the said motor vehicles when the accident herein occurred. It thus follows that in the event either or both drivers are found liable for the accident herein, the Plaintiff and the 2nd Defendant will be vicariously liable for their respective drivers' negligent acts or omissions. 6. The Schedule for Motor Commercial Policy dated 08th September 2020 shows that the Plaintiff’s motor vehicle was insured by the insurer vide an insurance policy number P/101/S1001/2020/01606 (COMP) at the time of the accident. This proves that the insurer was entitled to file this subrogation claim through the Plaintiff. 7. Given the foregoing, it is this court’s considered view that the issues for determination are whether the 2nd Defendant was to blame for the accident, and if so, whether the insurer expended 413,160/= in making good the Plaintiff’s loss, which sum the 2nd Defendant ought to indemnify the insurer. Simply put, the issues for determination are liability and quantum. **Liability** 1. The Plaintiff led evidence from PW1 and PW2 on the circumstances under which the accident occurred. PW1 and PW2 blamed the 2nd Defendant’s driver for causing the accident. 2. However, PW1 admitted that he neither visited the scene of the accident nor investigated the circumstances under which the accident occurred. He also admitted that the OB extract he was relied on to blame the 2nd Defendant’s driver for the occurrence of the accident had not been produced before this court as an exhibit. 3. The foregoing begs the question whether PW1 could speak to the circumstances under which this accident occurred. This question was answered by Majanja J (as he then was) in **Dikir & another v Kimary (Civil Appeal 316 of 2013) [2022] KEHC 12733 (KLR) (Civ)**as follows: *“Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”(Emphasis added)* 1. Guided by the authority above, PW1’s evidence on the circumstances under which the accident occurred is inadmissible hearsay evidence which this court will not rely on apportioning liability in this case. 2. PW2’s evidence was that the accident occurred when the 2nd Defendant’s motor vehicle hit the Plaintiff’s motor vehicle from behind, causing damage to the front and rear part of the Plaintiff’s motor vehicle. 3. It is noteworthy that PW2 witnessed the accident. His evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 4. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 5. In this jurisdiction, direct evidence by a person involved in an accident on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see **Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)).** 6. PW2’s uncontroverted direct evidence is that the 2nd Defendant’s motor vehicle hit the Plaintiff’s motor vehicle from behind. Musyoki J in **Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR)** expressed himself as follows regarding the liability of a driver who hits another motor vehicle from behind:- *A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’* 1. Taking cue from the authority above, it follows that the PW2’s direct uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence against the 2nd Defendant. 2. The Plaintiff having established a prima facie case of negligence against the 2nd Defendant, it was incumbent upon the 2nd Defendant to dislodge the prima facie case of negligence established against them through evidence. The 2nd Defendant did not do so. The 2nd Defendant deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 3. In **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR,** the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: *“ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:* *‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’* *Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”* 1. In the circumstances, it follows that the failure by the 2nd Defendant to adduce evidence on the circumstances under which the accident occurred only leads to the inevitable conclusion that had the 2nd Defendant led evidence on the circumstances under which the accident occurred, that evidence would have been adverse to their case. 2. The foregoing does not in any way mean that this court has shifted the burden of proof to the 2nd Defendant. This simply means that upon the Plaintiff establishing a prima facie case of negligence against the 2nd Defendant, the evidential burden shifted to the 2nd Defendant to dislodge the prima facie case of negligence established against them. 3. The upshot of the above is that this court finds the 2nd Defendant 100% liable for the occurrence of the accident. **Quantum** 1. The Plaintiff’s insurer seeks to recover Special Damages of Kshs. 413,160/= cash in lieu of payment of Kshs. 372,500/=, assessor’s fees of Kshs. 12,760/= and tracing fees of Kshs. 27,900/=. 2. PW3 produced a demand notice, a statutory notice, a discharge voucher for Kshs. 413,160/=, payment requisitions, bank remittances, and the insurance policy between the Plaintiff and his insurer in support of this case. He also marked for identification the Plaintiff’s motor vehicle assessment report dated ….and receipt for assessment of the Plaintiff’s motor vehicle dated….for Kshs….. 3. This court has already stated earlier on that the pleaded sum of Kshs. 413,160/= can only be recovered from the 2nd Defendant upon the insurer proving on a balance of probabilities that they expended the said sum of money in making good the Plaintiff’s/insured’s loss. 4. The said sum of money claimed by the Plaintiff is Special Damages which, as a matter of law, must be specifically pleaded and strictly proved (see **David Bagine Vs Martin Bundi [1997] eKLR).** 5. The foregoing requires this court to determine whether the insurer strictly proved that they expended the pleaded sum of Kshs. 413,160/= in making good its insured’s loss. 6. The only documents produced by the Plaintiff to prove the Special Damages are a discharge voucher for Kshs. 413,160/= dated 07th June 2021, payment requisitions, and bank remittances, and the investigations report dated 07th April 2025. 7. The receipt of the documents the Plaintiff sought to rely on including the Plaintiff’s motor vehicle assessment report dated ….assessors fees receipt for Kshs….were only marked for identification. The tracing fees receipt of Kshs…..was also not produced as an exhibit. 8. The law in this jurisdiction is that documents marked for identification but not produced as exhibits do not form part of the court record and search documents cannot be relied upon by a court in determining a case. This court draws inspiration from **Mwige v Kiguta & 2 others (Civil Appeal 140 of 2008) [2015] KECA 334 (KLR),** where the Court of Appeal held thus: *‘In the instant case, we are of the view that the failure or omission by the respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondents’ case. The documents did not become exhibits before the trial court; they had simply been marked for identification and they have no evidential weight. The record shows that the trial court relied on the document “MFI 2” that was marked for identification in its analysis of the evidence and determination of the dispute before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.’* 1. In the circumstances, the documents filed by the Plaintiff but not formally produced as exhibits cannot be used in determining quantum in this matter. 2. In subrogation cases arising from material damage claims, discharge vouchers, payment requistions, and bank remittances are not stand alone documents. Those documents owe their origin from a motor vehicle assessment report, a re-inspection report where applicable, and receipts or invoices endorsed with the word ‘paid’ from service providers who assessed, repaired and reinspected the insured’s motor vehicle after the accident. 3. The reasons above incline this court to find that the failure by the Plaintiff to produce the Plaintiff’s motor vehicle’s assessment report, re-inspection report, and receipts or invoices endorsed with the words paid from service providers who reportedly helped in making good the Plaintiff’s loss was fatal to this subrogation claim. 4. Ordinarily, a finding that a court lacks jurisdiction to hear and determine a matter requires a court to down its tools. However, this court’s finding on its lack of jurisdiction to hear and determine this matter has been made at judgment stage. This means that for completeness of the record and for appeal purposes, this court, being the trial court, must assess the quantum of damages as elucidated by the Court of Appeal in **Nyeri Civil Appeal No. 181 of 2011 Andrew Mwori Kasaya vs. Kenya Bus Service (2016) eKLR,** as follows: - *Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No. 124 of 1993 (UR). The court made the following observations on this issue:* *The judge was clearly under a legal to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this Court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”.* *This principle has religiously been followed by the courts below. We highlight a few of such decisions on the point by way of illustration. In Pamela Misiga Okelo versus Odero O. Alfred [2011] eKLR the following observation were made:* *“With regard to grounds 3 this court is satisfied that although the plaintiff’s claim had been dismissed it was imperative on the trial magistrate to make an assessment of damages the appellant would have been awarded had she succeeded.”* *In Lei Masaku versus Kalpama Builders Ltd [2014] eKLR it was observed thus:* *There is the issue of failure to assess damages. It has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issues of damages in this case is a serious indictment on the part of the trial court.* *Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know theview by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.”* *See also Gladys Wanjiru Njaramba versus Globe Pharmacy and another [2014]EKLR for the observations that:-* *“It is trite law that the trial court was under duty to assess the general damages payable to the plaintiff even after dismissal of the suit. This position is confirmed by the Court of Appeal in the case of Mordekai Mwangi Nandwa versus Bhogals garage CA No. 124 of [1993](UR)Where the court held that the that damages be assessed even if the case is dismissed does not imply writing an alternative judgment.”* *And in the case of Mayiya Byaba Loma & Another versus Uganda Transport Co Ltd. Uganda Supreme Court Appeal No. 10 of 1993IV KALR 138 where the court held that:-* *“The judge erred in not assessing the damage (sic) he would have awarded had the appeal court been successful in her claim.”* *Lastly in Masinga Ndonga Ndonge versus Kualam Limited [2016]EKLR, in which the High Court reviewed the above decisions and reiterated the principle enunciated above.* *The above case law is sufficient demonstration that the appellant was genuinely aggrieved and the respondent rightly conceded ground 2 of the appeal that both courts below fell into error when they abandoned their role to assess damages payable to the appellant had he succeeded in his claim.* 19. In line with the above authorities, this court proceeds to assess the quantum of damages. 1. The authority above leaves no doubt in this court’s mind that the documents marked for identification by PW3 but not produced as an exhibit cannot be relied upon by this court in determining this case. **Repair costs** 1. The Plaintiff relied on a discharge voucher and tax invoice for Kshs. 1,363,015/= dated 03rd July 2024 from Wootton Automotive Limited, a Payment Requisition Voucher for Kshs. 681,507/= dated 13th August 2024, and two printed documents christened ‘Proof of Payment’ to prove that the insurer paid Kshs. 1,363,015/= in repairing the Plaintiff’s motor vehicle. 2. A perusal of the court proceedings reveals that when PW6 testified before this court, he only produced the complainant’s P3 form (Pexh.2) as an exhibit. He thereafter marked PW1’s treatment notes from Bungoma County Referral Hospital for identification. This was for good measure since PW6 was not the maker of the said treatment notes. 3. This begs the question of whether documents marked for identification form part of the court’s record. This question was answered by the Court of Appeal in On the part of the Defendant, they conceded that the Plaintiff had proved that the insured expended Kshs. 1,339,515/= in repairing the Plaintiff’s motor vehicle. However, they termed the spare part costs claimed by the Plaintiff as exorbitant since the said spare parts could easily have been sourced locally cheaply as opposed to being imported as was done by Wootton Automotive Limited. The Defendant submitted that a sum of Kshs. 1,000,000/= was sufficient for the repair costs. 4. On the issue raised by the Defendant that the cost of the Plaintiff’s motor vehicle’s spare parts was exorbitant, it should be remembered that the spare parts costs herein were informed by the motor vehicle assessment report dated 19th June 2024, prepared and produced by PW2, whose competence was not impeached by the Defendant. 5. It has been held times without number in this jurisdiction that an uncontroverted motor vehicle assessor’s report is sufficient proof of damage to a motor vehicle and the cost of repairing such a damaged motor vehicle. This legal position can be gleaned from **Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya ( 2010) eKLR,** where the Court of Appeal stated thus: *“ 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.”(Emphasis added)* 1. What this court gathers from the authority above is that the contents of a motor vehicle assessment report prepared by a competent motor vehicle assessor can only be disregarded by a court if evidence to controvert the contents of such a report is placed before a court. Such evidence may include another motor vehicle assessor’s report at variance with the report relied on by a party. The Defendant did not adduce before this court such evidence. 2. It thus follows that the Defendant cannot purport to impeach the contents of the motor vehicle assessment report on record through submissions since submissions are not evidence. 3. Be that as it may, PW2 gave a good and plausible explanation of why the Plaintiff’s motor vehicle’s spare parts were costly. Therefore, this court finds and holds that the spare part costs of Kshs. 1,363,575/= cannot be termed as exorbitant. 4. The next question to be answered under this head is whether the Plaintiff strictly proved that the insurer expended Kshs. 1,363,575/= for repairing the Plaintiff’s motor vehicle. 5. This court has had the benefit of perusing the KRA tax invoice for Kshs. 1,363,015/= dated 03rd July 2024 from Wootton Automotive Limited, the insurer’s Payment Requisition Voucher for Kshs. 681,507/= dated 13th August 2024, and two printed documents christened ‘Proof of Payment’ adduced before this court in support of the insurer’s claim for Kshs. 1,363,015/= from the Defendant. 6. From the onset, it is imperative to note that a KRA tax invoice is not proof that a transaction took place or that money exchanged hands between a service provider and the contracting party (see **Osho Drappers Limited v Commissioner of Domestic Taxes (Tax Appeals Tribunal Appeal No. 159 of 2018)).** A KRA VAT invoice only records a transaction and its corresponding tax obligations. It is simply a declaration of tax expected from supplied goods or services. This explains why the KRA Tax invoice herein is dated 03rd July 2024, while the insurer’s Payment Requisition Voucher herein for part of the amount in the said KRA Tax invoice is dated 13th August 2024. Therefore, the KRA Tax invoice herein cannot be used as proof that the insurer expended Kshs. 1,363,015/= in repairing the Plaintiff’s motor vehicle. 7. Turning to the insurer’s Payment Requisition Voucher dated 13th August 2024 on record, this court notes that the said voucher was for a request for payment of Kshs. 681,507/= to Wootton Automotive Limited, not Kshs. 1,363,015/= pleaded in the further further amended Plaint on record. 8. This begs the question of whether the Payment Requisition Voucher dated 13th August 2024 on record is sufficient proof that the insurer expended Kshs. 681,507/= for repairing the Plaintiff’s motor vehicle. 9. The evidential value of a Payment Requisition Voucher in proving payments was well explained by the Court of Appeal in **Abdi Ali Dere v Firoz Hussein Tundal & 2 Others (2013) eKLR,** where the court held as follows: *“In our opinion it is not correct to say, as the trial court did, that in all and sundry cases a payment voucher cannot be evidence of payment. The term “voucher” derives from the word “vouch”, meaning “to confirm or assure”. The term “voucher”, in regard to payment, has at least two distinct meanings. It can mean a written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue in acknowledgement of payment. They merely counter sign the payment voucher to signify payment. This is particularly the case where the payees are casual workers engage to undertake short term assignments…”(Emphasis added)* 1. A reading of the authority above shows that a Payment Requisition Voucher can either be proof of authority to pay money or confirmation of payment, depending on the circumstances of a case. The authority also shows that a Payment Requisition Voucher can only be used as proof of payment where it is countersigned by the payee to signify payment. 2. A Payment Requisition Voucher can also be used as proof of payment where it is endorsed with the word “Paid.” This court draws inspiration from **Richard v Njeru (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR)** where Mwangi J held inter-alia: *“From the record, it is evident that the insurer indemnified the insured after the accident. This can be seen from plaintiff exhibit No 7, which is a letter dated 21st January, 2016 addressed to the insurer from the insured, requesting them to submit the payment of Kshs 3,036,800/= directly to Toyota Kenya Mombasa Branch. The respondent produced a payment voucher dated March 14, 2016, bearing a stamp from the insurer endorsing the word ‘Paid EFT/RTGS” on March 22, 2016’ as plaintiff exhibit No 8 which shows that the said amount of Kshs 3,036,800/= was credited into Toyota Kenya’s account on behalf of the insured under policy No 087-HO-132204-15. As such, I find that indeed the insurer did indemnify its insured, the respondent herein for the loss he suffered.”* 1. Turning to the circumstances of this case, the Payment Requisition Voucher on record was not countersigned by the payee (Wootton Automotive Limited) to signify payment of the sum of Kshs. 681,507/= set out therein. Further, the Payment Requisition Voucher herein lacks an endorsement of whether the sum of Kshs. 681,507/= therein was paid by the insurer to Wootton Automotive Limited. 2. The analysis above shows that the Payment Requisition Voucher herein cannot be relied upon by the Plaintiff to prove on a balance of probabilities that the insurer expended Kshs. 1,363,015/= for repairing the Plaintiff’s motor vehicle. 3. It would appear that, in acknowledgment of the fact that the KRA Tax invoice and the Payment Requisition Voucher on record were not sufficient proof of payment by the insurer of the claimed Kshs. 1,363,015/=, the Plaintiff filed two printed documents christened ‘Proof of Payment’ in a bid to prove that the insurer paid Wootton Automotive Limited for the repair of the Plaintiff’s motor vehicle. 4. A perusal of the said documents shows that the claimed sum of Kshs. 1,363,015/= was reportedly paid to Wootton Automotive Limited in two transactions on 28th June 2024 and 13th August 2024 through Electronic Funds Transfer (EFT). 5. It is a matter of public notoriety that EFT transactions are evidenced by digital banking receipts. If at all the said payments were made by the insurer to Wootton Automotive Limited through EFT, nothing prevented the insurer from adducing before this court a digital banking receipt setting out the payments’ payer, payee, transactions reference codes, and the transactions narratives. 6. Further, if at all Wootton Automotive Limited was paid the claimed sum of money by the insurer, nothing prevented Wootton Automotive Limited from placing before this court an ordinary receipt or an ETR receipt evidencing receipt of the money claimed to have been paid to them by the insurer. 7. In the absence of a digital banking receipt(s) to evidence the alleged EFT transactions between the insurer and Wootton Automotive Limited and in the absence of a receipt or an ETR receipt from Wootton Automotive to confirm receipt of the money claimed by the insurer, this court takes the position that the ‘proof of payment” documents on record do not prove on a balance of probabilities that the insurer paid any money to Wootton Automotive Limited. 8. One may be tempted to argue that, given that the Defendant’s counsel conceded through written submissions that the Plaintiff ought to be awarded repair costs of Kshs. 1,000,000/=, this court should proceed and make that award. 9. That argument sounds and looks attractive on the face of it. However, it should be remembered that a concession in written submissions is not a consent that a court is expected to adopt as the party’s position regarding an issue. 10. An analysis of the Plaintiff’s documentary evidence above shows that the Defendant’s counsel’s concession for an award of Kshs. 1,000,000/= to the Plaintiff was founded on a misapprehension of the law on the evidential value of the Plaintiff’s exhibits herein on the insurer’s alleged payment to Wootton Automotive Limited of the sum of money claimed herein. A court is entitled to disregard a concession in a party’s written submissions based on a misapprehension of the law or facts. 11. The upshot of the foregoing is that the Plaintiff failed to prove on a balance of probabilities that the insurer expended Kshs. 1,363,015/= for repairing her motor vehicle. **Motor Vehicle Search Fees** 1. The Plaintiff for an award of motor vehicle search fees of Kshs. 560/=. The NTSA receipt on record dated 16th September 2024 proved motor vehicle search fees of Kshs. 550/=. 2. In the circumstances, this court makes an award of Kshs. 550/= under this head. **Witness Expenses** 1. The Plaintiff submitted that this court ought to make an award of Kshs. 5,000/= to them being witness expenses reportedly paid to PW1 to attend court. 2. It is well settled in this jurisdiction that parties are bound by their pleadings. The Plaintiff did not plead an award of witness expenses in their further further amended Plaint herein. Therefore, the Plaintiff cannot seek a remedy or an award not pleaded through written submissions. 3. In any event, this court is of the considered view that witness expenses are costs of a suit which ought to be claimed during assessment of costs as disbursements. 4. It is against this backdrop that this court declines the Plaintiff’s invitation to award witness expenses of Kshs. 5,000/=. **DETERMINATION** 1. Given the reasons above, judgment is entered against the Defendant in the following terms:- 1. *Liability - 50%:50%* 2. *Motor Vehicle Search Fees – Kshs. 550/=* *Total Award - Kshs. 550 /=* *Less 50%* ***Net Award - Kshs. 225/=*** 1. The award above, being special damages, will accrue interest at court rate from the date of filing this claim till payment in full. 2. The Plaintiff will also have the costs of this suit subject to the ratio of liability herein. 3. It is so ordered. **Read, signed, and delivered in open Court at Bungoma this 16th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** In the presence of: Ms. Ateka for the Plaintiff Ms. Chesanai for the Defendant C/A: Mr. Rioba