https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7215

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E698 OF 2023** **JAMES MWANGI NJUGUNA……………….……...…APPELLANT** **VERSUS** **WILFRED WAWERU MIRIE…………………..…..RESPONDENT** *(Being an Appeal from the Judgment of Hon. S.G. Gitonga Delivered on 30th June, 2023 in the Small Claims Court in SCCC E1139 of 2023)* **JUDGMENT** 1. In a judgment delivered on 30th June 2023, the appellant sued the respondent seeking special damages to his motor vehicle caused by an accident on 21st December 2021, alleging that the respondent drove negligently and rammed into the appellant’s vehicle. 2. The respondent failed to appear or file a response despite being served, leading to a default judgment on 18th April 2023, which determined liability in the appellant’s favor. 3. The trial court then proceeded to assess quantum, specifically special damages of Kshs. 148,980 claimed as repair costs. 4. The appellant produced an assessment report dated 7th February 2023 showing the damage, but provided no receipts, payment vouchers, or notes to prove the amount was actually spent. 5. The trial court noted that the assessment report was only an estimate, not conclusive proof of payment. 6. Citing the principle that special damages must be specifically pleaded and strictly proved, the trial court found that while the damages were pleaded, they were not strictly proved. 7. Consequently, the trial court found that the appellant had failed to establish the claim on a balance of probabilities, and the suit was dismissed with no orders as to costs. 8. The appellant has appealed against the said judgment on the following grounds; 9. ***THAT the learned trial magistrate erred in law and in fact in her determination that special damages were not specifically proved by the claimant.*** 10. ***THAT the learned trial magistrate erred in law and in fact by failing to consider the documentary evidence in support of the appellants claim.*** 11. ***THAT the learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions in support of his claim.*** 12. The parties filed written submissions in the appeal as follows; The appellant, James Mwangi Njuguna, submitted that the original dispute stemmed from a road traffic accident involving both parties' motor vehicles, which led the appellant to file a claim for loss and damage totalling Kshs 148,980. 13. Although an interlocutory judgment was entered after the respondent failed to respond or enter an appearance, the trial magistrate ultimately dismissed the suit on the grounds that special damages for repair costs must be specifically proven by receipts showing actual expenditure. 14. Aggrieved by this decision, the appellant appealed on the primary grounds that the trial court erred in fact and law by failing to consider the documentary evidence, particularly the expert motor vehicle assessor's report, and by wrongly determining that the special damages had not been proven. 15. The main issue presented for the High Court's determination is whether the appellant sufficiently proved his claim at the trial stage. 16. To support the contention that the damages were specifically proved, the submissions point to the assessor's report, which quantified the repair costs at Kshs 133,980, alongside an assessor's fee of Kshs 5,000 and legal costs of Kshs 10,000 for a demand letter, which cumulatively sum up to the claimed amount. 17. The appellant argues that because the respondent conceded liability and never challenged the valuation report, the trial magistrate erred by ignoring this uncontested expert evidence. 18. To anchor this position in law, the submissions rely extensively on established Kenyan jurisprudence to demonstrate that the production of financial receipts is not a mandatory prerequisite for recovering material damages. 19. The appellant cites the Court of Appeal and High Court decisions in **Gerda Maria Simon v Global Trucks Ltd, David Bagine v Martin Bundi**, and **Scarce Commodities Limited v Augustus Wafula Wambati,** which altogether affirm that a motor vehicle assessor's report serves as acceptable and sufficient proof of the value of material damage. 20. Furthermore, the submissions draw **from Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya** and **Silas Mutua Mberia v Muthoni Njue Veronica** to emphasize that special damages in a material damage claim do not need to be shown as already incurred. 21. Rather, a claimant is merely required to establish the extent of the damage and the estimated cost required to restore the property to its pre-accident state on a balance of probabilities. 22. Based on these authorities, the appellant maintains that the lack of repair receipts is not fatal to the claim. 23. Consequently, the appellant prays that the High Court allow the appeal, set aside the trial court's judgment dismissing the suit, award the principal sum of Kshs 148,980, and grant the costs of the suit for both courts. 24. The following three issues fall upon this court for determination in this appeal; 25. ***Whether this appeal is competent as being grounded strictly on points of law, given that appeals from the Small Claims Court (SCCC) are restricted by statute.*** 26. ***Whether a claim for liquidated damages ought to go for formal proof.*** 27. ***Whether the appellant sufficiently proved his claim for special damages in the absence of financial receipts or proof of actual expenditure.*** 28. As a preliminary matter, this court must determine whether it has the requisite jurisdiction to entertain this appeal. 29. Under Section 38 of the Small Claims Court Act, an appeal from a decision of the Small Claims Court to the High Court lies only on points of law or on a ground of a flagrant denial of justice. It does not lie on questions of pure facts. 30. The appellant’s primary grievance challenges the trial court's application of the legal standard of proof required for special damages. 31. Specifically, the trial court held as a matter of law that the absence of financial receipts is fatal to a claim for special damages. 32. The misinterpretation and misapplication of a legal standard, as well as the complete disregard of uncontroverted expert evidence, are classic points of law. 33. Therefore, this court finds that the appeal satisfies the statutory threshold of Section 38 and is fully competent. 34. The second issue is whether a claim for liquidated damages requires a hearing for formal proof where a defendant fails to respond. 35. Under the civil procedure rules, where a claim is for a liquidated demand only (a specific, pre-determined, or mathematically ascertainable sum) and the defendant fails to file an appearance or defence, the plaintiff is generally entitled to apply for judgment by default without the necessity of formal proof. 36. However, a claim arising from a motor vehicle accident for the cost of repairs, even when quantified by an assessor, is intrinsically a claim for unliquidated damages or material special damages. 37. It requires the court to judicially assess and verify the reasonableness of the valuation. 38. Even if it were categorized as a liquidated sum by virtue of a precise assessment, where a court directs that the matter proceeds to formal proof to satisfy its conscience on quantum, the plaintiff must tender evidence. 39. While purely liquidated contractual debts may bypass formal proof, claims rooted in tortious material damage properly require formal proof to ascertain the precise extent of the loss. 40. The trial court was therefore in order to schedule the matter for formal proof, shifting the focus to whether the evidence tendered during that formal proof was sufficient. 41. In considering the final issue as to Whether the appellant sufficiently proved his claim for special damages, this court notes that the respondent failed to file an appearance or response at the trial stage, leading to a default judgment on liability in the appellant's favor, and further failed to participate or oppose this appeal. 42. While the trial court dismissed the suit on the ground that special damages must be specifically pleaded and strictly proved by way of receipts showing actual expenditure, the strictness of proof is always a matter of degree depending on the circumstances of each case. 43. The production of financial receipts is not an absolute or mandatory prerequisite for recovering material damages resulting from a motor vehicle accident. 44. This position is firmly anchored in established jurisprudence. As held by the Court of Appeal in **Gerda Maria Simon v Global Trucks Ltd and subsequent decisions like David Bagine v Martin Bundi** and **Scarce Commodities Limited v Augustus Wafula Wambati** (supra),a professional motor vehicle assessor’s report serves as acceptable, credible, and sufficient proof of the value and extent of material damage. 45. Furthermore, as emphasized in **Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya and Silas Mutua Mberia v Muthoni Njue Veronica**(supra), special damages in a material damage claim do not need to be shown as already incurred or paid for. 46. A claimant is merely required to establish the extent of the damage and the estimated cost required to restore the property to its pre-accident state on a balance of probabilities. 47. The lack of repair receipts or payment vouchers is not fatal to the claim, especially where the expert valuation and assessment report remains unchallenged and uncontroverted by the respondent. 48. The trial magistrate therefore erred in law and fact by ignoring the uncontested expert evidence and holding that the special damages were not strictly proved. 49. Accordingly, this appeal is allowed. The judgment of the trial court dismissing the suit is hereby set aside, and this court substitutes it with an order entering judgment for the appellant against the respondent. 50. The appellant is hereby awarded special damages in the sum of Kshs. 148,980 plus interest on the principal sum at court rates from the date of filing suit in the lower court until payment in full. 51. The costs of the suit for both this Court and the lower court are awarded to the appellant. 52. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 20th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** Mr Okebiro for the Applicant No appearance the Respondent Ubah – Court Assistant