Gikonyo v Mburu (Civil Case E936 of 2025) [2026] SCC 181 (KLR) (24 July 2026) (Judgment)

Gikonyo v Mburu (Civil Case E936 of 2025) [2026] SCC 181 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] SCC 181 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Civil Case E936 of 2025 ME Aligula, RM July 24, 2026 Between John Ndirangu gikonyo Claimant and Paul Kiruka Mburu Respondent Judgment 1.The claimant sued the respondent for the following orders:a.Judgment in the sum of ksh 912,050/-b.Costs and interest of the claim from the date of filing suit 2.The cause of action arose on or about 2nd October, 2025 involving the claimant’s authorized driver, servant and/or agent who was lawfully driving the claimant’s motor vehicle registration number KDG 236A along Nakuru- Nairobi road at Delamere area when the respondent’s authorized driver, servant, agent and/or employee so negligently, carelessly and recklessly drove motor vehicle registration number KDQ 248F causing it to ram into the claimant‘s motor vehicle from behind and pushing it towards motor vehicle registration number T825 DSL thereby occasioning the claimant's vehicle extensive damage hence the claimant holds the respondent liable under the tort of negligence directly and/or vicariously liable for the negligent acts and / or omissions of his driver, particularly the negligence on the part of the respondent, his authorized driver, agent and/ or servant are enumerated in paragraph 4.3 of the statement of claim. 3.The claimant avers that it not only suffered loss and damages as a result of the carelessness, recklessness and/ or negligence of the respondent’s driver, servant, and/ or agent but also incurred special damages and monetary losses all of which it holds the respondent vicariously liable for; particular special damages are enumerated in paragraph 4.5 of the same statement of claim. Hence, filed the present claim against the respondent. 4.The respondent filed his response dated 9th February, 2026, he denied the contents of the statement of claim and put the claimant to strict proof thereof. The respondent averred that if at all there was an accident that occurred on 2nd October, 2025 at Delamere along Nakuru- Nairobi Road involving motor vehicle registration number KDG 236A and motor vehicle registration number KDQ 248F as a result of which the claimant sustained loss and damages which is denied, the same was solely caused and / or substantially contributed to by the negligence of the claimant. 5.The claim proceeded by way of viva voce evidence with the claimant calling 3 witnesses and the respondent calling only one witness. 6.CW 1, Kiprono Kipyego, a driver adopted his statement dated 5th December, 2025, as his evidence in chief. He stated that he was the driver of the claimant's vehicle and was following motor vehicle registration number T825 DSL, a Tanzanian vehicle, it stopped and he also stopped and suddenly knocked from behind by motor vehicle registration number KDQ 248F and in the circumstances, he hit the Tanzanian vehicle ahead of him. It was his testimony that he was not charged with any traffic offence and blamed the respondent’s driver for the accident. 7.On cross examination the witness stated that the accident occurred at midnight and he was not overtaking. That he was knocked while on his rightful lane, he was hit on the rear left of the car and the vehicle was damaged in front and at the back. There were also damages on the side as well due to the impact from the back and front and as a result the doors got damaged. The witness blamed the driver of KDQ 248F. He further testified that regardless no traffic charges were not preferred against any of them. He concluded by stating that as per the assessment report the damages were on the left pillar and the rail, he further noted that Tanzanian vehicle was hit by his vehicle. In re-examination, CW 1 clarified that he hit the Tanzanian vehicle because he was hit from behind by KDQ 248F. 8.CW2 John Ndirangu, adopted his statement dated 5th December, 2025 as his evidence in chief. He produced the logbook as C exhibit 2, assessment report and receipt as C exhibit 3 a & b. He stated that his vehicle was repaired and went back on the road. He produced the NTSA copy of records plus the receipt as C exhibit 4 & 5. His driver's license as C exhibit 6, demand notice as C exhibit 7 and WhatsApp screenshot as C exhibit 8. CW 2 stated that he is a business man and his vehicle was carrying on fruits on the day of the accident, that his take home is normally ksh 10,000/- less expenses. He stated that per trip is ksh 60,000/- and the vehicle would make 2 trips a week getting the amount to ksh 120,000/-, the expenses included fueling, driver’s payment and accommodation which is about ksh 50,000/- and the balance is ksh 70,000/- in a week take home is ksh 10,000/- per day. On cross examination, he confirmed that he had no proof that his vehicle was for commercial business on the day of the accident. He stated that his driver's employment was verbal they did not have the employment agreement. The witness confirmed that his driver ‘s name is Kiprono and had produced his Driving license. He further stated that his take home was ksh 10,000/- but had not filed any proof. Further, that his vehicle had taken 20 days to be repaired. 9.The witness was referred to the assessment report and confirmed that the figures thereon were as per the market value but had not filed in court the quotation of the market value. He concluded by testifying that he had not filed in court proof of expenses he incurred. In re- examination, the witness clarified that his vehicle was in business at the time of the accident, and after the accident and during the repair it was not on the road. He confirmed that he had not been shown a different report from the assessment report he had filed. 10.CW3, Corporal Joseph Chacha, attached at Naivasha police station doing traffic duties testified that on 2nd October, 2025 at 0015hours, at Delamere area along Nakuru- Nairobi road highway an accident occurred involving motor vehicle registration number KDQ 248F and T825 DSL as per the police abstract. That one Omari was driving motor vehicle registration number T825 DSL from Nakuru towards Nairobi on reaching the accident scene was hit from behind by unknown vehicle which did not stop at the scene and due to emergency break the vehicle was hit from behind by Motor vehicle registration number KDG 236A which was also hit from behind by Motor vehicle registration number KDQ 248F, that all vehicles were damaged, the accident scene was visited and the vehicles were towed to the police station. That KDG 236A was hit from behind and moved towards the Tanzanian vehicle. He produced the police abstract as C exhibit 1. 11.On cross- examination, CW 3 confirmed that he was not the investigating officer in the matter. Neither did he visit the accident scene nor have the police file with him but confirmed that he had the occurrence book. He indicated that motor vehicle KDQ 248F was hit by unknown vehicle which did not stop and further stated that if he had not been hit and had he kept proper distance the accident would not have happened. Cw3 was not aware if any traffic charged were preferred. In re- examination he clarified that as per the OB, there was no Motor vehicle behind KDQ 248F, he concluded by stating that KDG 236A was extensively damaged. The claimant's case was closed at this point. 12.Respondent on the other hand, called one witness, Eliud Kiboi, who adopted his statement dated 28th May, 2026 as his evidence in chief. He produced a copy of his Identification card and Driving license as R exhibit 1 and 2. He blamed the claimant's driver for the accident and confirmed that has never been charged with any traffic case. On cross - examination, the witness stated that his vehicle was damaged but have not sued the claimant for damages. He did not have a police abstract blaming the claimant's driver for the accident. He confirmed that the claimant’s vehicle was the one in front of him when the accident occurred and had not called an eye witness to confirm the circumstances of the accident. He further concluded by testifying that when the police came at the accident scene, the claimant’s vehicle was between his vehicle and another. In re-examination, he stated that there was a bus that caused the accident but did not stop. That KDG 236A moved on to his lane when he saw the bus and caused the accident. The respondent's closed its case at this point. Parties were directed to file submissions which was done, the claimant's submissions are dated 14th July, 2026 whereas the respondent’s submissions are dated 17th July, 2026. This court has considered them while writing this judgment. The issues for determination are:a.Who is liable for the accident?b.The quantum payable if any? 13.On liability, I find the evidence of CW1 is supported by the evidence of CW 3 who actually confirmed that Motor vehicle registration number T825 DSL being driven by one Kebaya Omari was hit by unknown motor vehicle which did not stop at the scene and due to the emergency break the Tanzanian vehicle was hit by KDG 236A being driven by CW 1 who was also hit by KDG 248F. That the OB did not indicate any other vehicle behind KDG 248F. It was CW3's testimony that if the respondent’s driver had kept proper distance the accident would not have occurred. RW 1 confirmed before this court that the claimant's vehicle was sandwiched between two vehicles, he stated that KDG 236A moved on to his lane when he saw the bus and caused the accident, no other witness came to testify in support of the respondent’s version. A look at the police abstract, the same does not indicate any other vehicle save for the three that were involved in the accident. The respondent stated that there was a bus that caused the accident but did not stop, he further stated that he blames the claimant's driver but had not sued him for causing the accident. 14.I do also find that the claimant’s motor vehicle sustained material damage which was assessed a repair cost of ksh 705,500/- Vide the assessment report dated 9th October, 2025, produced as exhibit 3a. I further confirm that the claimant filed his driver’s driving license which confirms he had a valid driving license and as such, he was competent and qualified driver. 15.I further find that the police abstract produced by CW 2 as exhibit 1 clearly blames motor vehicle registration number T825DSL for causing the accident. The police abstract produced is merely proof that an accident was reported. It is not disputed by both parties that an accident happened, what is in contention is liability. As such, a party seeking to rely on the abstract in question must go a step further and prove that the accident actually occurred and the person they are pursuing was to blame for the same, I rely on the case of Kennedy Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR), where Honourable Lady Justice Njoki Mwangi held as follows, a position I agree with; ‘In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.” 16.CW3 read to the court what had been written in the Occurrence book but this court did not have a chance to look at the same and he confirmed that he was not the investigating officer. The respondent has submitted that the inconsistencies in the CW3's evidence weakened the claimant's version of events and calls this court to hold that the respondent cannot be said to be liable for the damage occasioned to the claimant's motor vehicle. 17.In In David Mwangi Kariuki & another v Stephen Mwangi & another [2017] eKLR, it was held that a police abstract proves the occurrence of an accident but not how it occurred or who was to blame. The police abstract’s remark “deferred to insurance” or blaming the Plaintiff is an opinion, not a judicial finding. The trial court erred by treating the abstract as binding on the issue of liability. 18.RW1 confirmed that the claimant's vehicle was sandwiched between two vehicles and he knocked the claimant's vehicle from behind. To that extend, i find that the accident happened and T825 DSL was to blame for the accident as per the police abstract, however, the respondent did not dispute knocking the claimant's vehicle from behind yet it ought to have kept reasonable distance and be cautious to other road users. The claimant also elected to file the present case against only one party which in my view was partially to blame for the accident. It was held in the case of Mwangi & Another – Vs – Wambugu [1983] 2 KCA 100 cited in Ndiritu – Vs – Ropkoi EALR (205)1 that whereas the burden of proof lay with the party who alleges, however, also the evidential burden cast upon both parties to prove any particular fact which they desired the court to believe in its existence, concluding that both parties were liable for contributory negligence at the ratio of 50:50 on account that each party failed to exercise the reasonable degree of care and skill reasonably expected of a person who drives a vehicle on a public highway. In the circumstances, liability is apportioned in the ratio of 70%: 30% in favour of the claimant as against the respondent. 19.On quantum, the claimant produced the assessment report dated 9th October, 2025 for a sum of ksh 705, 500/-. The report shows the parts damaged, the repair parts to be replaced and the estimated value. I have not seen any receipts produced in this court particularly for the repairs save for the receipt of ksh 6,000/- which was paid to the assessor for the exercise undertaken, and a receipt of ksh 550 for doing a search on Ntsa portal. However, there is no doubt that the suit was based on a material damage claim. The recovery of repair costs arising from motor accidents was settled by the Court of Appeal in Nkuene Dairyn Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR) in the following rendition: - .... In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value...The Court further went on to state that: -In the result we agree with Mr. Charles Kariuki that the Assessor’s report was sufficient proof and the failure to produce receipts for any repairs done was not fatal to the respondent’s claim...... 20.I associate myself with the binding case above, despite the claimant not producing receipts before this court, it is undisputed that the vehicle was damages and it is confirmed by the assessment report and the same was to be repaired as per the estimated quotation. The above position was held by Justice A. C Mrima in Shah v Ndumia & another (Civil Appeal E725 of 2024) [2026] KEHC 9439 (KLR) (Civ) (23 June 2026) (Judgment) 21.Further, the claimant also sought for ksh 200,000/- for loss of user, Cw 2 testified that the vehicle was on a commercial business at the time of the accident and his take home has been ksh 10,000/- per month after all expenses. The vehicle was off the road for 20 days and sought the above amount. I have not seen any proof to support the claimant's case under this head. 22.In the case of Justice Ngaah Jairus held in Equity Bank Ltd v Gerald Wang’ombe Thuni [2015] KEHC 2474 (KLR) that “It is trite law that a party is bound by his pleadings. A claim for loss of user is a claim for special damages and claim must be pleaded and particulars given.” With the forgoing explicit pronouncement on the law it is unnecessary to belabour that point that a claim for loss of user is a claim in special damage and it can only be awarded where the pleadings in which it sis sought meets the threshold for such a claim. The claimant particularized his earnings while testifying, but failed to prove on a balance of probabilities. I further rely in the case of the court of Appeal in Civil Appeal no. 283 of 1996, (David Bagine versus Martin Bundi) stated that damages which are claimed under the title “loss of user” are special damages which must be proved. The Court stated as follows:- “We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can”. These damages as pointed out earlier by us must be strictly proved.” 23.In light of the above and in the absence of any evidence by the claimant the award under this head should wobble and fall. 24.In the circumstance the court makes the following orders:a.Liability 70%: 30% in favour of the claimant as against the respondent.b.Claimant is entitled to damages of ksh 712,050/- less 30% ksh 498,435/-.c.The claimant is awarded costs and interest of the suit.Stay of 30 days grnated. JUDGMENT DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026.M. E. ALIGULARMIn the presence of C/A Mr.LepatoiyeMr Kinyanjui for the claimantN/A for the respondnet