https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/774

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI** **MILIMANI COMMERCIAL COURT** **MCCC CASE NO E1455 OF 2026** **JULIUS LONGEL..........................................................................PLAINTIFF** **VERSUS** **CITY STAR SHUTTLE ...............................................................DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff commenced this suit by way of an Amended Plaint amended on 9th April,2026. The claim is a material damage arising from a road traffic accident which occurred on 13th July 2024 along North Airport Road within Nairobi City County. The accident involved the Plaintiff’s Motor Vehicle Registration Number KBG 546M, Mercedes Benz, and the Defendant’s motor vehicle registration number KCC 202B, Isuzu Bus. The Plaintiff pleaded that the accident was caused solely by the negligence of the Defendant’s driver, who drove, managed and/or controlled the Defendant’s motor vehicle in a negligent manner, thereby causing it to collide with the Plaintiff’s vehicle. 2. The particulars of negligence pleaded against the Defendant’s driver included entering into the lawful path of the Plaintiff’s vehicle, failing to slow down, stop or keep a proper lookout, failing to give way, causing an obstruction and driving without due care and attention. The Defendant was consequently pleaded to be vicariously liable for the acts and omissions of its driver. 3. The Plaintiff further pleaded that his motor vehicle was extensively damaged in the accident and was subsequently declared a **total loss**. He claimed **Kshs.1,288,880** as special damages, being principally the pre-accident value of the vehicle less salvage value, together with expenses relating to assessment, towing, courtesy hire, investigation, auctioneering and tracing. **Interlocutory Judgment** 1. The Defendant failed to enter appearance and/or file a defence within the prescribed period. Interlocutory Judgment was consequently entered against the Defendant on 17th June ,2026 and the matter proceeded for formal proof hearing on 15th July ,2026 . 2. Although interlocutory judgment had been entered, the Plaintiff was still required to place before the Court sufficient evidence to establish the facts necessary for the assessment of the reliefs sought. In particular, the Plaintiff bore the evidential burden of demonstrating the nature and extent of the loss for which compensation was claimed. 3. The Plaintiff accordingly called three witnesses and produced documentary evidence in support of his claim. **The Plaintiff’s Evidence** 1. PW1, Julius Longel, was the Plaintiff. He testified that he was the registered owner of motor vehicle registration number KBG 546M, Mercedes Benz. He stated that on 13th July 2024, while the vehicle was being driven along North Airport Road, it was involved in a collision with the Defendant’s Isuzu Bus registration number **KCC 202B**. 2. PW1 testified that the accident was reported to his insurer, NCBA Insurance Company, and that the vehicle was subsequently inspected and assessed. According to his evidence, the damage was extensive and the vehicle was declared a total loss. He testified that the pre-accident value of the vehicle was Kshs.1,400,000, while the salvage value was Kshs.255,000.00 3. PW1 further testified regarding the expenses arising from the accident and the subsequent processing and recovery of the vehicle. He relied on the relevant documentary evidence in support of the claim, including the motor vehicle records, insurance documents, assessment report, photographs, invoices, receipts and other documents contained in the Plaintiff’s bundle. 4. PW2, an eyewitness to the accident, testified regarding the circumstances in which the collision occurred. His evidence was that the Defendant’s bus entered into the path of the Plaintiff’s motor vehicle without adequate warning, resulting in the collision. He further testified concerning the circumstances immediately surrounding the accident and the subsequent involvement of the police. 5. PW2’s evidence was consistent with the Plaintiff’s account that the collision was occasioned by the manner in which the Defendant’s bus was driven and controlled. His evidence was not controverted by any evidence from the Defendant. 6. PW3, Vincate Macharia, an officer in the claims department of NCBA Insurance, testified concerning the Plaintiff’s insurance claim. She confirmed that the accident had been reported to the insurer and that the vehicle was subjected to assessment by Safety Surveys Limited. 7. PW3 referred to the Motor Vehicle Assessment Report dated 22nd July 2024, which established the extent of the damage and concluded that the vehicle was uneconomical to repair and was therefore a total loss. She confirmed the pre-accident value of Kshs.1,400,000.00 and the salvage value of Kshs.255,000. She also testified regarding the expenses associated with the assessment, towing, investigation, recovery and processing of the claim. 8. The Plaintiff produced, among other documents, the Police Abstract dated 17th July 2024, the Motor Vehicle records, insurance documentation, assessment report, photographs of the damaged vehicle, invoices, receipts, towing documents, investigator’s report and correspondence relating to the settlement of the insurance claim. 9. The Plaintiff's evidence was not challenged by any evidence from the Defendant. The Defendant did not call any witness or produce any contrary assessment, valuation or other evidence disputing either the occurrence of the accident, the manner in which it occurred or the extent of the damage. **Liability** 1. The first issue for determination is whether the Plaintiff established liability against the Defendant. 2. The Plaintiff relied on the Police Abstract dated 17th July 2024, which he submitted attributed blame for the accident to the Defendant’s driver. He further submitted that the Police Abstract, together with the oral evidence of the Plaintiff and the eyewitness, established the occurrence of the accident and the responsibility of the Defendant’s driver. 3. A Police Abstract is prima facie evidence of the occurrence of the accident and the matters recorded therein. It is not, standing alone, conclusive proof of negligence. In the present case, however, the Plaintiff did not rely on the Police Abstract in isolation. There was oral evidence from PW1 and PW2 regarding the circumstances of the accident, which evidence remained unchallenged. 4. The evidence before the Court is therefore that the Defendant’s bus entered the path of the Plaintiff’s Motor Vehicle and collided with it. There is no competing version of the accident because the Defendant did not participate in the hearing by adducing evidence to rebut the Plaintiff’s case. 5. I have considered the pleadings, the oral evidence and the documentary evidence. I find that the Plaintiff established, on a balance of probabilities, that the accident was caused by the negligent driving, management and/or control of Motor Vehicle Registration Number KCC 202B. 6. The Defendant, being vicariously liable for the acts of its driver committed in the course of employment, is liable for the consequences of that negligence. 7. I therefore find the Defendant **100% liable** for the accident. **Quantum** 1. The next issue is the amount payable to the Plaintiff as compensation for the material damage to his motor vehicle and the consequential expenses. The Plaintiff claimed **Kshs.1,288,880.00** as special damages. The claim was particularised as follows: 1. Pre-Accident Value Kshs. .........................................1,400,000.00 Less: Salvage value Kshs.............................................. 255,000.00 **Total ..................................................................Kshs. 1,145,000.00** 2. Assessment Fees Kshs........................................................6,380.00 3. Insured Towing Refund Kshs.......................................... 16,000.00 4. Courtesy Car Hire Charges Kshs................................... 48,000.00 5. Investigator Charges Kshs............................................. 25,750.00 6. Towing Charges Kshs....................................................... 5,000.00 7. Auctioneer Fees Kshs..................................................... 20,300.00 8. Tracing Charges Kshs......................................................21,950.00 **TOTAL Kshs.......................................................................1,288,880** 9. The first question is whether the Plaintiff established the loss occasioned by the damage to the motor vehicle. 10. The Plaintiff relied upon the assessment report prepared by Safety Surveys Limited dated 22nd July 2024. The report established that the vehicle had sustained extensive damage and was uneconomical to repair. It therefore assessed the vehicle as a total loss. The report gave the vehicle a pre-accident value of Kshs.1,400,000.00 and a salvage value of Kshs.255,000.00. 11. The evidential value of an assessor's report in a material damage claim is well settled. In **Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] eKLR**, the Court of Appeal considered a claim for material damage to a motor vehicle and held that special damages in a material damage claim need not necessarily be shown to have actually been incurred. The claimant is required to establish the extent of the damage and what it would cost to restore the damaged item as nearly as possible to its pre-accident condition. The Court accepted the assessor’s report as sufficient proof where the report particularised the damaged parts and assigned values to them. 12. The principle in **Nkuene Dairy Farmers** is particularly apposite to the present case. The Plaintiff’s vehicle was not merely damaged and repaired; it was assessed and declared a **total loss**. In such circumstances, there can be no requirement that the Plaintiff produce receipts for repairs which were never undertaken. The relevant evidence is the assessment and valuation demonstrating the vehicle's pre-accident value, the extent of the damage and the salvage value. 13. The same principle has subsequently been applied by the High Court. In **Njoroge v Nyagisera [2024] KEHC 5163 (KLR)**, the Court reaffirmed the principle in **Nkuene Dairy Farmers**, noting that an assessor's report may sufficiently establish a material damage claim where it gives the extent of the damage and the cost of restoration with reasonable certainty. 14. Likewise, in **Ishmail Kimutai Tarus & Another v Mark Kipyego [2019] KECA 334 (KLR)**, the Court of Appeal recognised the evidential value of an assessment report in a material damage claim and rejected the argument that production of receipts for every repair expenditure was necessarily required where the assessment evidence sufficiently established the loss. 15. In the present case, the assessment report was produced in evidence and was supported by photographs and the testimony of PW3 from the insurer's claims department. There was no alternative valuation or assessment placed before the Court by the Defendant. The assessment evidence therefore remains uncontroverted. 16. I accordingly find and accept the pre-accident value of the motor vehicle as **Kshs. 1,400,000.00** and its salvage value as **Kshs. 255,000.00**. The resultant net loss occasioned by the total loss of the Motor Vehicle is therefore **Kshs. 1,145,000.00**, being the difference between the pre-accident value and the salvage value. 17. The Plaintiff also claimed Assessment Fees of Kshs.6,380.00 insured towing refund of Kshs.16,000.00, courtesy hire charges of Kshs.48,000.00, investigator’s charges of Kshs.25,750.00, towing charges of Kshs.5,000.00, Auctioneer’s Fees of Kshs.20,300.00 and tracing charges of Kshs.21,950.00. These items were specifically pleaded and the Plaintiff submitted that they were supported by invoices, receipts, credit notes and other documentary evidence. 18. The general rule is that special damages must be specifically pleaded and strictly proved. That principle is settled by authorities including **Hahn v Singh [1985] KLR 716**. The requirement, however, must be applied with regard to the nature of the particular claim. In material damage claims, **Nkuene Dairy Farmers** recognises that an assessment report may constitute sufficient evidence of the loss where it provides the necessary degree of certainty. 19. I have considered the individual items claimed against the documentary evidence and the testimony of PW3. The assessment fees are directly attributable to the assessment of the damaged vehicle. The towing and investigation expenses are connected with the accident and the processing of the claim. The auctioneer's and tracing charges relate to the recovery and disposal of the damaged vehicle. The courtesy hire claim is pleaded as an expense arising from the Plaintiff's inability to use the vehicle following the accident. 20. On the evidence before me, I find that the said consequential expenses have been sufficiently established. I therefore allow them as prayed. 21. There is, however, an arithmetical discrepancy in the Plaintiff's claim. The pleaded total is Kshs**.1,288,880.00** whereas the individual heads of claim, when added together, amount to **Kshs.1,288,380.00** The Court cannot award an amount unsupported by the individual pleaded and proved heads. 22. I therefore find that the Plaintiff has proved special damages in the sum of **Kshs.1,288,380.00** **Interest** 1. The Plaintiff sought interest at 14% per annum from the date of filing suit until payment in full. 2. Interest is discretionary under section 26 of the Civil Procedure Act. The Court must consider the nature of the award and the circumstances of the case. The loss in the present case was quantified and arose from the date of the accident and the consequent declaration of the vehicle as a total loss. 3. I consider it appropriate to award interest on the special damages at court rates from the date of filing suit until payment in full. I decline to award the specific rate of 14% per annum sought by the Plaintiff in the absence of a demonstrated basis for departing from the prescribed court rate. **Costs** 1. The Plaintiff has succeeded in establishing liability and the substantial part of his claim. He is therefore entitled to the costs of the suit. There is no sufficient reason on the record to depart from the ordinary rule that costs follow the event. **Conclusion** 1. Having considered the pleadings, the evidence of the three Plaintiff’s witnesses, the documentary evidence, the submissions and the applicable law, I find that the Plaintiff has proved his claim on a balance of probabilities. 2. I find that the Defendant’s driver was negligent in the manner in which he drove and/or controlled Motor Vehicle Registration Number **KCC 202B**, thereby causing the collision with Motor Vehicle Registration Number **KBG 546M** on **13th July 2024**. 3. I further find that the Plaintiff's Motor Vehicle was extensively damaged and was properly assessed as a total loss. The assessment evidence established its pre-accident value at **Kshs.1,400,000.00** and its salvage value at **Kshs.255,000.00**, resulting in a net vehicle loss of **Kshs.1,145,000.00** 4. The Plaintiff has also proved the consequential expenses pleaded in respect of assessment, towing, courtesy hire, investigation, auctioneering and tracing. The total proved special damages are therefore Kshs.1,288,380.00 **Disposition** 1. Judgment is hereby entered for the Plaintiff against the Defendant in the following terms: 2. ***Liability Defendant 100% Liable .*** 3. ***The Plaintiff is awarded Kshs.1,288,380 as special damages.*** 4. ***The said sum shall attract interest at court rates from the date of filing suit until payment in full.*** 5. ***The Plaintiff shall have the costs of the suit.*** 6. For avoidance of doubt, the award is **Kshs.1,288,380.00** being the aggregate of the individual heads specifically pleaded and proved, notwithstanding the figure of **Kshs.1,288,880.00** appearing as the total in the Plaintiff's submissions. 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **26.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH DAY OF AUGUST,2026** In the Absence of parties Court Assistant: Phoebe.