https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/169

Nguyo v SGA Mombasa Limited (Civil Case 1516 of 2021) [2026] KEMC 169 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 169 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case 1516 of 2021 EM Mwamuye, SPM June 25, 2026 Between Esther Wamuyu Nguyo Plaintiff and Sga Mombasa Limited Defendant Judgment Background 1.Vide a Plaint filed on 25th September 2021, the Plaintiff prayed for:a.Special damages of Kshs 591,780/=.b.Costs of this suit and interest from the date of the accident. 2.The salient features included that the Plaintiff, is the beneficial owner of motor vehicle KCH 547R. The Defendant, is sued as the driver/beneficial owner of motor vehicle KAV 916M. The claim arises from a road traffic accident on 23rd September 2018 along Old Mombasa-Malindi Road, where the Plaintiff alleges that the Defendant’s vehicle, driven negligently and carelessly, caused it to ram onto the Plaintiff’s motor vehicle. 3.The Plaintiff pleads that the motor vehicle was extensively damaged and claims special damages totalling Kshs. 591,780/= comprising: Kshs. 504,275/= for repair costs, Kshs. 30,000/= for loss of use, Kshs 30,000/= as towing fees, Kshs 18,145/= as tracing fees, Kshs 6,860/= as assessment fees and Kshs 2,500/= as re-inspection fees. 4.The Defendant filed an amended statement of defence dated 20th July 2023 and the salient features included that it denied liability for the accident and disputed the Plaintiff’s account of how the accident occurred. The Defendant contended that it was not its driver who caused the collision but rather that the Plaintiff, while driving motor vehicle KCH 547R, negligently and recklessly drove into the Defendant’s motor vehicle KAV 916M from behind along the Old Mombasa–Malindi Road at Wema Centre on 23rd September 2018. 5.The Defendant further alleged that the Plaintiff was driving under the influence of alcohol and was therefore unable to properly control her vehicle. It attributed the accident entirely to the Plaintiff’s negligence, including excessive speed, failure to keep a safe distance, failure to maintain a proper lookout, failure to brake in time, and driving while intoxicated. 6.The Defendant denied the Plaintiff’s claim for loss and damage, denied having neglected or refused to settle any lawful claim, maintained that no cause of action had been disclosed against it, and prayed for dismissal of the suit with costs. 7.The matter proceeded for hearing on the 8th October 2025 and 11th March 2026 when the Plaintiff called four witnesses, who were cross-examined and the Plaintiff closed its case. The defence called one witness and closed its case and directions given to file written submissions. 8.Parties proceeded to file and serve written submissions; the Plaintiff’s submissions are dated 23rd April 2026. The Defendant’s written submissions are dated 12th May 2026. The salient features are noted by the Court. Issues for Determination 9.Having considered the pleadings, evidence and submissions, the following issues arise for determination:i.Whether the Plaintiff proved negligence against the Defendant.ii.Whether the Plaintiff is entitled to the special damages claimed.iii.Who should bear the costs of the suit. Analysis Liability 10.The burden of proving negligence rests upon the Plaintiff. The Plaintiff was therefore required to establish on a balance of probabilities that the Defendant's driver was negligent and that such negligence caused the accident. 11.The Plaintiff testified that she was lawfully driving along the Old Mombasa–Malindi Road when the Defendant's vehicle, which had been stationary on the roadside, suddenly joined the road and caused the collision. The Plaintiff's evidence was supported by the Police Abstract and police records produced before court. The Police Abstract attributed blame to the driver of motor vehicle registration number KAV 916M. The ownership records produced further confirmed that the Defendant was the registered owner of the said motor vehicle. 12.The Defendant's sole witness was the driver of motor vehicle KAV 916M. He testified that the Plaintiff hit his vehicle from behind and further alleged that she was intoxicated. 13.The Court has carefully evaluated the evidence. 14.While the Defendant relied heavily on the proposition that a driver who collides with another vehicle from behind is ordinarily presumed negligent, that presumption is rebuttable and each case must be determined on its own facts.In the present case, the Plaintiff's evidence regarding the manner in which the accident occurred remained consistent throughout the proceedings. 15.More importantly, the police investigations culminated in a finding attributing blame to the Defendant's driver. Although a police abstract is not conclusive proof of liability, it remains relevant evidence which the court is entitled to consider alongside the totality of the evidence. 16.The allegation that the Plaintiff was intoxicated at the time of the accident was not supported by any documentary evidence, breathalyser results, medical report, toxicology report or independent witness testimony. It remained a mere allegation by the Defendant's driver. Courts have consistently held that allegations of intoxication must be supported by evidence. 17.The Defendant did not call the investigating officer or produce any investigation report contradicting the police findings. Neither did the Defendant produce any independent evidence demonstrating that the Plaintiff was speeding, intoxicated or otherwise negligent. 18.The Court therefore finds that the Plaintiff's evidence was more probable and better supported by the documentary record than the Defendant's version. 19.Consequently, I find that the Plaintiff has proved on a balance of probabilities that the accident was caused by the negligence of the Defendant's driver. 20.Liability is therefore entered against the Defendant at 100%. Quantum 21.The Plaintiff seeks special damages amounting to Kshs. 591,780/= particularized as follows:Particulars Amount (Kshs.)Repair costs 504,275Loss of use 30,000Towing charges 30,000Tracing fees 18,145Assessment fees 6,860Re-inspection fees 2,500Total 591,780 22.Repair Costs – Kshs. 504,275/=: The Plaintiff produced assessment reports, repair invoices, receipts and payment documentation demonstrating that the vehicle underwent repairs at a cost of Kshs. 504,275/=. The Court is satisfied that this item was specifically pleaded and strictly proved. Awarded: Kshs. 504,275/=. 23.Towing Charges – Kshs. 30,000/=: Receipts and supporting documentation were produced demonstrating payment for towing services following the accident. Awarded: Kshs. 30,000/= 24.Tracing Fees – Kshs. 18,145/=: The Plaintiff produced a Payment Requisition Voucher from Liaison Insurance and supporting invoice from PIN Eye Insurance Investigators showing tracing expenses. However, the documentary evidence produced supports payment of Kshs. 17,095/=. 25.Special damages: must be proved with precision and the court can only award what was strictly proved. Awarded: Kshs. 17,095/=. 26.Assessment Fees- Kshs. 6,860/=: Assessment reports and supporting receipts were produced. Awarded: Kshs. 6,860/= 27.Re-inspection Fees – Kshs. 2,500/=: The Plaintiff produced evidence of re-inspection expenses. Awarded: Kshs. 2,500/= 28.Loss of Use – Kshs. 30,000/=: The Plaintiff testified that the vehicle was used as a taxi and that she hired another vehicle during the repair period. However, no documentary evidence was produced showing actual earnings, business records, daily returns, hiring agreements, or receipts evidencing loss suffered. 29.The Court of Appeal in David Bagine v Martin Bundi [1997] eKLR emphasized that claims for loss of use constitute special damages which must be specifically pleaded and strictly proved. 30.Although the Plaintiff testified that she incurred loss during the repair period, the evidence presented falls short of the strict proof required. Accordingly, this head of claim is declined. 31.The Plaintiff is awarded:Head of Claim Award (Kshs.)Repair costs 504,275Towing charges 30,000Tracing fees 17,095Assessment fees 6,860Re-inspection fees 2,500Loss of use 0Total 560,730 Disposal 32.Judgment is hereby entered for the Plaintiff against the Defendant as follows:a.Liability is apportioned at 100% as against the Defendant.b.The Plaintiff is awarded special damages of Kshs. 560,730/=.c.Interest on the special damages shall accrue at court rates from the date of filing suit until payment in full.d.The Plaintiff shall have the costs of the suit.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE