https://new.kenyalaw.org/akn/ke/judgment/scc/2026/179

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT MILIMANI** **CIVIL CASE NO. E613 OF 2025** **KENNETH NJERU IRERI………………………………………………...………CLAIMANT** **VERSUS** **KIMANI NDUACHU…………………………………………………………RESPONDENT** **JUDGMENT** **Introduction** 1. The Claimant instituted this suit vide a Statement of Claim dated 12th February 2026 seeking the following reliefs: a) Special damages in the sum of Kshs. 112,650/=, b) Costs and interests of the Claim from the date of filing the claim. 2. The Respondent filed a response dated 9th March 2026, opposing the Claim. 3. The matter was set down for hearing on 14th April 2026. The matter proceeded by way of viva voce evidence. **Claimant’s Case** 1. The Claimant avers that on or about 14/02/23, he was lawfully and carefully driving Motor Vehicle Registration No. KCZ 903 Q, when the Respondent and/or his driver negligently and/or carelessly drove Motor Vehicle Registration No. KAM 448 D, causing it to hit the Claimant’s Motor Vehicle KCZ 903 Q, thereby causing extensive damage. **Respondent’s Case** 1. The Respondent contends that the accident was solely caused and/or contributed to by the negligence of the Claimant and denied liability. The Respondent therefore prays that the claim be dismissed with costs. **Issues for Determination** 1. The following are the issues for determination: 2. Whether the doctrine of subrogation is applicable in this case; 3. Who is liable for the accident?; 4. What is the quantum of damages awardable to the Claimant if any; and 5. Who bears the costs of the claim **Analysis and determination** 1. **Whether the doctrine of subrogation is applicable in this case** 2. I have considered the evidence on record and the respective well-written submissions filed by the parties. The claimant, in his submissions, raised an issue of whether the Claimant is entitled to compensation under the doctrine of subrogation. 3. For the doctrine of subrogation to be properly invoked, there are conditions that must be satisfied. First, there must be in existence a contract of insurance, secondly the risk must have crystallized and thirdly there must be actual payments made in order to indemnify the insured. The doctrine is explained in the case of **Kenya Power & Lighting Company Limited v Julius Wambale & Another (2019) eKLR**, where the Court rendered 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. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance...”.*** 4. CW-1, a Legal Officer- Jubilee Insurance, testified there is a subrogation clause in the policy and that the insurer fully indemnified the Claimant in respect of the repairs on a cash-in-lieu basis. The payment was disbursed on 06/03/2023, as evidenced by a receipt produced as CEXH-12. By virtue of such indemnification, the doctrine of subrogation duly crystallised. Further, the proceedings have been instituted in the name of the insured. 5. I accordingly find that the doctrine of subrogation was properly invoked in the present matter, hence the Claimant is entitled to compensation. 6. **Who is liable for the accident?** 7. It was CW-2’s testimony that on 14/02/23 at around 8:00 pm, he was lawfully and carefully driving Motor Vehicle Registration No. KCZ 903 Q along Kangundo Road near Total Petrol Station when Motor Vehicle Registration No. KAM 448 D, being carelessly and/or negligently driven, violently hit and/or rammed into Motor Vehicle Registration No. KCZ 903 Q, causing extensive damage. 8. He further stated that he was driving on the correct side of the road, being the left lane. The driver of Motor Vehicle Registration No. KAM 448 D attempted to overtake recklessly and, in the process, collided with his motor vehicle KCZ 903 Q on the right side. He added that he hooted in an attempt to alert the driver of motor vehicle KAM 448 D of the imminent danger of collision but it was too late. 9. CW-3, a police officer, testified confirming the occurrence of the accident on the said date and produced a police abstract indicating that, according to the conclusion of the Investigating officer, Motor Vehicle KAM 448D was to blame for the accident. 10. The Respondent, on the other hand, testified that on the material date, he was driving Motor vehicle registration number KAM 448 D along Kagundo road, while so driving and without any warning whatsoever, motor vehicle registration number KCZ 903 Q, which was being driven by the Claimant or his authorised driver on the opposite direction heading towards Kayole junction, carelessly, recklessly and without any regard to other road users moved from its lane and rammed into the front part of my vehicle occasioning a collision. 11. In cross-examination, the Respondent stated that a bus emerged from a petrol station, forcing him to swerve to the wrong lane. He entered the lane of motor vehicle registration number KCZ 903Q. He further stated that he did not join the owner of the bus as a party to this case. 12. It is trite law that it is not sufficient for either party to merely plead particulars of negligence in the plaint. The Claimant must adduce cogent evidence in proof of those particulars, upon which the Court may properly make a finding on liability. In the instant case, the Respondent did not call any witness or adduce any evidence to prove the particulars of negligence as pleaded. Further, the Respondent did not tender any contrary evidence to rebut the testimony of the police officer and the conclusion of the Investigating officer, indicating that motor vehicle KAM 448 D is to blame. In the case of Moses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal observed: ***“.......the Police Abstract form that indicated the driver of the 1st respondent’s motor vehicle was to blame for the accident. The respondents did not call any evidence to counter this evidence............. In the absence of any evidence from the defence, we are persuaded there was preponderance of evidence by the appellant that amounted to a prima facie case and it required to be countered by the respondent.”*** 13. It suffices to say that the Respondent failed to prove the allegation of negligence on the part of the Claimant in any way. Further, the Respondent admitted in cross-examination that he entered the lane of the Claimant’s motor vehicle, KCZ 903 Q. 14. I am of the considered view in the absence of rebuttal evidence, there can only be one conclusion, that the Respondent is to be blamed for the accident. Consequently, I find the Respondent 100% liable for the accident. 15. **What is the quantum of damages awardable to the Claimant if any** 16. It is trite law that special damages must be specifically pleaded and strictly proven. In the present case, the claimant pleaded special damages of Kshs. 112,650/=. CW-1, a legal officer at Jubilee Insurance, testified that the insurer settled the claim on a cash-in-lieu basis, paying the insured based on the assessment report. The payment was disbursed on 06/03/2023. 17. CW-1 produced a copy of an Invoice from Framtich Breakdown Services in the sum of Kshs. 4,500/= as CEXH-9, a copy of a final payment voucher to the insured in the sum of Kshs. 77, 000/= as CEXH- 12 and a copy of the final payment voucher in favour of Sunrays General Insurance Investigators Ltd in the sum of Kshs. 31,150/= as CEXH- 15 in support of the special damages pleaded. There is no contrary evidence. 18. It is the Court’s finding that the special damages have been proved to the required standards and are hereby allowed. 19. **Who bears the costs of the claim?** 20. It is trite law that costs follow the event, and it is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case. The Claimant shall have the costs of the suit. **Disposition** 1. The upshot of the foregoing, I make the following orders: 2. The Claimant is awarded Special damages in the sum of Kshs. 112,650/=. 3. Costs of the suit. 4. Interest at court rates from the date of filing the claim until payment in full. 5. The execution of this judgment is stayed for 30 days. 6. Right of appeal be exercised within 30 days. 7. Let the file be closed forthwith. 8. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT MILIMANI SMALL CLAIMS COURT THIS 19th DAY OF MAY 2026.** **CHEROTICH MARYLEEN** **ADJUDICATOR/ RESIDENT MAGISTRATE** Judgment delivered in the presence of: Mr. Kinuthia for the Respondent.