https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/527

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI** **MILIMANI COMMERCIAL LAW COURTS** **CIVIL SUIT NO.8284 OF 2019** **JUSTIN MANGOKA MWOLOLO ……………………….………..PLAINTIFF** **-VERSUS-** **JINSING ENTERPRISES COMPANY LIMITED………….…..1ST DEFENDANT** **EPHRAMI BABU OBAGA ……………………….…………2ND DEFENDANT** **JUDGEMENT** **Introduction** 1. The Plaintiff instituted this suit by a Plaint dated 22nd October 2019, seeking recovery of Kshs.1,551,400.00 from the Defendants jointly and severally. The claim arises from a road traffic accident which occurred on 12th November 2016 along Thika Road, involving motor vehicles registration numbers KBX 334D and KBC 621G. The claim is brought under the doctrine of subrogation, following indemnification of the insured by its insurer. 2. The Plaintiff's case is that Motor Vehicle Registration Number KBX 334D was being lawfully driven along Thika Road when motor vehicle registration number KBC 621G, owned by the 1st Defendant and driven by the 2nd Defendant or its authorised driver, servant and/or agent, was so negligently, carelessly and recklessly driven that it collided with KBX 334D. 3. The Plaintiff alleges that, as a consequence of the accident, KBX 334D sustained extensive damage and was assessed as a total loss. The Plaintiff therefore seeks to recover the loss and consequential expenses amounting to Kshs.1,551,400, together with costs and interest. The pleaded computation comprises total loss of Kshs.1,980,000; assessment fees of Kshs.6,300; investigation fees of Kshs.29,900; towing charges of Kshs.15,000; loss of use of Kshs.30,000; Police Abstract charges of Kshs.200; less salvage recovery of Kshs.510,000. 4. The Defendants filed a Defence dated **28th August 2020**, denying liability and the alleged negligence. In the alternative, they pleaded that if the accident occurred, it was caused solely by the negligence of the driver of KBX 334D. They denied the material loss and put the Plaintiff to strict proof. 5. The matter proceeded to hearing and the parties subsequently filed written submissions. The Plaintiff's submissions are dated 30th June 2026, while the Defendants' submissions are dated 13th July 2026. **The Plaintiff's Case** 1. The Plaintiff relied principally on the evidence of Miriam Wambui, a claims officer and insurance representative. She testified that the vehicle was comprehensively insured and was involved in the accident on 12th November 2016 along Thika Road. Following the accident, the vehicle was assessed by **Integrated Assessors Limited**. 2. The Plaintiff's evidence was that the insurer incurred a total of **Kshs.1,551,400.00** in consequence of the accident and sought recovery of that amount under the doctrine of subrogation. The claim comprised the alleged total loss, assessment fees, investigation fees, towing charges, loss of use and police abstract charges, less salvage recovery. 3. The Plaintiff relied upon the police abstract, assessment documentation, insurance documents and other documentary evidence to establish liability and quantum. Its position was that the police abstract attributed blame to the Defendants' vehicle and that the Defendants had not produced sufficient evidence to displace that evidence. 4. On quantum, the Plaintiff submitted that special damages had been specifically pleaded and strictly proved. It relied on **Hahn v Singh [1985] KLR 716**, for the established proposition that special damages must be specifically pleaded and strictly proved. The Plaintiff also relied upon **Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] eKLR**, in relation to proof of material damage through assessment evidence. The principle in *Hahn v Singh* remains settled law. 5. The Plaintiff further relied on **Mukabi v Odongo & Another [2024] KEHC 16829 (KLR)** on subrogation, submitting that upon indemnifying the insured, an insurer steps into the shoes of the insured and may pursue the rights and remedies available against the third-party tortfeasor. 6. The Plaintiff therefore urged the Court to find the Defendants **100% liable**, enter Judgment for **Kshs.1,551,400**, and award costs and interest. **The Defendants' Case** 1. The Defendants denied liability. Their evidence was that motor vehicle KBC 621G was being driven from Kasarani towards the City Centre when its wheel came off and the vehicle entered the opposite lane. They nevertheless attributed the accident to the driver of KBX 334D, whom they alleged was travelling at excessive speed and failed to avoid the collision. 2. The Defendants submitted that the Plaintiff failed to prove negligence on a balance of probabilities. They challenged reliance upon the Police Abstract, contending that it was not conclusive proof of negligence in the absence of the investigating officer, investigation report and sketch map. 3. On quantum, the Defendants challenged the assertion that KBX 334D was a write-off. They pointed to what they described as an inconsistency between the evidence that the vehicle had been repaired and the insurance evidence that it had been declared a total loss. 4. They further challenged the assessment report, stating that it did not sufficiently explain the repair costs, was unsigned and did not identify its author, and that the assessor was not called to testify. They submitted that if the vehicle was a write-off, the proper measure was its pre-accident value less salvage value. 5. The Defendants also disputed the pre-accident value of **Kshs.1,980,000.00** contending that the assessment evidence placed it at approximately **Kshs.1,900,000**. They further challenged the claim for loss of use, arguing that the claim had not been strictly proved and that awarding loss of use together with the value of a written-off vehicle would amount to double compensation. 6. Finally, the Defendants challenged the assessment, investigation, towing and police abstract charges on the ground that invoices and payment vouchers, without satisfactory evidence of actual payment, did not amount to strict proof of special damages. They relied on, among others, **Coop Bank Fleet Africa Ltd v Lang'at [2024] KEHC 9509 (KLR)** and **Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR**. **Analysis and Determination** 1. Having considered the pleadings, evidence and submissions, I find the following issues arise for determination: 1. Whether the Defendants are liable for the accident of 12th November 2016; 2. Whether the Plaintiff has established the claim under the doctrine of subrogation; 3. Whether the Plaintiff has proved the special damages of Kshs.1,551,400; and 4. What orders should issue as to interest and costs. **Liability** 1. The burden of proof in a civil claim rests upon the party who asserts the facts constituting the cause of action. Sections **107 and 108 of the Evidence Act** place that burden upon the person who desires the Court to give judgment as to a legal right or liability dependent upon the existence of particular facts. 2. The Plaintiff was therefore required to establish, on a balance of probabilities, that the accident was caused by the negligence of the Defendants or their servant or agent. The mere occurrence of an accident does not, without more, establish negligence. The Court must consider the evidence as a whole and determine which version is more probable. 3. In **Statpack Industries v James Mbithi Munyao [2005] eKLR**, the Court emphasised the need for evidence connecting the defendant's conduct with the accident and resulting loss. The Plaintiff must establish the facts from which negligence can reasonably be inferred. 4. In the present case, there is significant evidence emanating from the Defendants' own side. The evidence of the driver of KBC 621G is that the wheel of that vehicle came off, causing the vehicle to enter the opposite lane where it collided with KBX 334D. 5. That evidence substantially corroborates the Plaintiff's account that KBC 621G crossed into the path of KBX 334D. More importantly, the Defendants did not place before the Court cogent evidence demonstrating that the detachment of the wheel was caused by an unforeseeable and unavoidable mechanical failure for which neither the driver nor the owner bore responsibility. 6. A driver has a duty to exercise reasonable care to ensure that the motor vehicle under his control is roadworthy and remains under proper control. Where a vehicle loses a wheel while being driven and consequently crosses into the opposite lane, there is a substantial evidential burden on the person responsible for the vehicle to explain the circumstances in which that occurred. 7. The allegation that the driver of KBX 334D was speeding was not established by cogent evidence.No independent eyewitness was called to demonstrate the alleged excessive speed. No accident reconstruction evidence or sketch map was produced to demonstrate that KBX 334D was being driven at such speed as to constitute negligence or that the driver failed to take reasonable evasive action. 8. The Defendants correctly submitted that a police abstract is not, by itself, conclusive proof of negligence. However, the Court is not determining liability on the police abstract alone. The abstract is part of the evidential matrix, and its probative value must be assessed together with the testimony and other documentary evidence. 9. In the circumstances of this case, the Defendants' own evidence that KBC 621G's wheel came off and the vehicle entered the opposite lane is of greater evidential significance than the bare allegation that the Plaintiff's vehicle was speeding. 10. I therefore find that the Plaintiff has discharged the burden of proof on a balance of probabilities. The more probable explanation for the accident is that KBC 621G lost its wheel, entered the opposite lane and collided with KBX 334D. 11. I accordingly find the 1st Defendant vicariously liable for the negligent driving of its authorised driver and the 2nd Defendant directly liable as the driver of KBC 621G. 12. I find no evidential basis upon which contributory negligence can properly be attributed to the Plaintiff. The Defendants' alternative proposal for apportionment at 50:50 is unsupported by the evidence. 13. Liability is therefore entered at 100% against the Defendants jointly and severally. **Subrogation** 1. The Plaintiff's claim is founded upon subrogation. The evidence is that the motor vehicle was comprehensively insured and that the insurer indemnified the insured following the accident. 2. Subrogation is an equitable doctrine arising from the contract of indemnity. Upon indemnifying the insured, the insurer is entitled to pursue the rights which the insured could have pursued against the third party responsible for the loss. 3. In **Mukabi v Odongo & Another [2024] KEHC 16829 (KLR)**, the High Court reiterated the principle that an insurer who has indemnified its insured may step into the shoes of the insured and pursue the insured's rights against the party responsible for the loss. 4. The evidence before Court establishes that the insurer incurred the loss on behalf of the insured and thereafter sought recovery from the tortfeasor. I am therefore satisfied that the present proceedings are properly founded upon subrogation. 5. The insurer's right, however, remains derivative. It can recover no more than the amount properly recoverable by the insured and, equally, the insurer must prove the loss for which recovery is sought. **Quantum** 1. The Plaintiff pleaded **Kshs.1,551,400.00** as special damages. The law is settled that special damages must be specifically pleaded and strictly proved. In **Hahn v Singh [1985] KLR 716**, the Court of Appeal stated that special damages must not only be specifically claimed but also strictly proved. The rationale is that such damages are not ordinarily inferred from the occurrence of the wrong. 2. The requirement for strict proof does not mean that every item must invariably be supported by a receipt where other cogent evidence establishes the loss. As the High Court observed in **Kwendo v Attorney General & Another [2024] KEHC 1530 (KLR)**, actual receipts are ordinarily the surest mode of proof, but the circumstances and nature of the particular claim determine the degree and particularity of proof required. 3. I shall therefore consider each component of the claim separately. **Total Loss** 1. The Plaintiff claims **Kshs.1,980,000.00** as the total loss value of the vehicle and deducts **Kshs.510,000.00** as salvage recovery, leaving **Kshs.1,470,000**. 2. The Defendants challenge the figure of Kshs.1,980,000.00 and submit that the pre-accident value was approximately **Kshs.1,900,000.00** 3. I have considered the assessment evidence and the submissions. Although the Defendants point to a different figure appearing in the assessment documentation, the Plaintiff's pleaded and supported figure of Kshs.1,980,000.00 was not displaced by sufficiently cogent contrary valuation evidence. 4. The Court must avoid speculative assessment of the value of a damaged motor vehicle. The appropriate measure where a vehicle is established to have been written off is ordinarily its pre-accident value less the salvage value, together with any properly proved consequential expenses. 5. In **Permuga Auto Spares & Barclays Bank of Kenya Ltd v Margaret Korir Tagi [2015] KEHC 3406 (KLR)**, the High Court considered a material damage claim and recognised the relevance of the pre-accident value and salvage value in assessing the loss. 6. I therefore find that the **pre-accident value of the Plaintiff’s Motor Vehicle was Kshs.1,980,000.00**. I further find that the **salvage value of Kshs.510,000.00** is properly deductible from the assessed loss. 7. The net loss in respect of the vehicle is therefore: 8. Kshs.1,980,000 – Kshs.510,000 = Kshs.1,470,000. 9. Assessment, Investigation, Towing and Police Abstract Charges 10. The Plaintiff further claims: 11. Assessment fees – **Kshs.6,300.00** 12. Investigation fees **– Kshs.29,900.00** 13. Towing charges – **Kshs.15,000**; and 14. Police Abstract – **Kshs.200.00** 15. The Defendants contend that these amounts were not strictly proved because the Plaintiff relied upon invoices and payment vouchers rather than receipts. 16. It is correct that an invoice, standing alone, is ordinarily weaker evidence of actual expenditure than a receipt or other evidence demonstrating payment. However, the Court must consider the documentary evidence as a whole and the oral evidence of the witness who testified as to the expenditure. 17. The Plaintiff's claims officer testified that the insurer incurred the assessment and investigation expenses, including Kshs.29,900 paid to Investec Insurance International Investigators Limited. The evidence was supported by the documents produced in the proceedings. 18. I am satisfied, on the evidence before me, that these expenses were sufficiently proved and were reasonably connected to the accident and the processing of the insured loss. **Loss of Use** 1. The Plaintiff additionally claims **Kshs.30,000.00** as loss of use. Unlike the other heads of claim, the documentary evidence produced in support of this particular amount is an invoice for Kshs.30,000.00 2. Significantly, no receipt was produced to demonstrate that the amount stated in the invoice was actually paid or incurred by the Plaintiff or the insurer. Neither was there other satisfactory documentary evidence, such as a payment record, bank statement, acknowledged payment voucher or other independent evidence demonstrating that Kshs.30,000.00 was actually expended. 3. The Plaintiff was required to prove this head of special damages with the requisite degree of certainty and particularity. The Court cannot simply assume that because an invoice was issued, the amount stated therein was necessarily paid or constituted an actual loss. 4. The principle in **Hahn v Singh [1985] KLR 716** is particularly applicable. Special damages are recoverable only to the extent that they are specifically pleaded and strictly proved. 5. The distinction between an invoice and proof of actual payment is material. In **Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR**, the Court considered the evidential value of invoices in proof of special damages. An invoice is evidence of a demand or charge; it does not necessarily establish that the amount was paid. The Court must therefore look for evidence demonstrating that the claimed expenditure was actually incurred. 6. This position does not mean that a receipt is the only conceivable method of proving special damages. As recognised in **Kwendo v Attorney General & Another [2024] KEHC 1530 (KLR)**, receipts are the surest and best mode of proof but are not invariably the only mode. However, where, as in the present case, the only evidence tendered in support of the Kshs.30,000 claim is an invoice and there is no receipt or other corroborative evidence of payment, the evidential threshold has not been met. 7. There is a further deficiency in the claim. The evidence does not satisfactorily establish the period of loss of use, the basis upon which Kshs.30,000.00 was calculated, or the circumstances demonstrating that the Plaintiff actually suffered the pleaded loss for the period claimed. 8. I am mindful that loss of use of a Motor Vehicle may, in an appropriate case, constitute a recoverable head of damages. However, the recoverability of that head does not dispense with the requirement of proof. The Court cannot award a specific sum merely because it appears on an invoice. 9. In the circumstances, I find that the Kshs.30,000.00 loss-of-use claim was specifically pleaded but was not strictly proved. It is accordingly dismissed. **Police Abstract** 1. The Plaintiff claimed Kshs. 200/= as the cost incurred in obtaining a Police Abstract. However, no receipt or other documentary evidence was produced to prove that the amount was actually paid. 2. The claim therefore remains unproved and cannot be awarded. Accordingly, the sum of Kshs. 200/= is declined. **Final Assessment of Quantum** 1. Having considered each head separately, the proved claim is as follows: Total Loss /Pre accident Value...................................Kshs.1,980,000.00 Lees Salvage recovery ...............................................(Kshs.510,000.00) Assessment Fees .................................................................Kshs.6,300.00 Investigation fees..............................................................Kshs.29,900.00 Towing Charges ...............................................................Kshs,15,000.00 Police Abstract .....................................................................................Nil Loss of use .............................................................................................Nil **Total ............................................................................Kshs.1,521,200.00** 1. The Plaintiff has therefore proved Special Damages in the sum of **Kshs.1,521,200.00** 2. The difference between the amount pleaded, namely Kshs.1,551,400, and the amount proved, namely Kshs.1,521,200.00 is the Kshs.30,000.00 loss-of-use claim and Police Abstract which fails for want of strict proof. **Conclusion** 1. Having considered the totality of the evidence, I find that the Plaintiff has proved, on a balance of probabilities, that the accident of 12th November 2016 was caused by the negligent driving of Motor Vehicle Registration **KBC 621G**. 2. The evidence that the wheel of KBC 621G came off and that the vehicle consequently entered the opposite lane is particularly material. The Defendants did not provide sufficient evidence to establish that the occurrence was caused by an unforeseeable mechanical failure or that the Plaintiff's driver contributed to the accident. 3. The allegation that the driver of KBX 334D was speeding was not sufficiently proved. There is therefore no evidential basis for apportioning liability at 50:50 as proposed by the Defendants. 4. I accordingly find the 1st and 2nd Defendants jointly and severally liable at 100% for the accident and the proven resulting loss. 5. On quantum, the Plaintiff has proved the net value of the written-off vehicle after deduction of salvage and the reasonable consequential expenses proved in evidence. The Kshs.30,000 loss-of-use claim fails because the only supporting document was an invoice and there was no receipt or other satisfactory evidence demonstrating actual payment or expenditure. 6. The Plaintiff is therefore entitled to **Kshs.1,521,200.00** 7. On interest, Special Damages ordinarily attract interest from the date of filing suit where the loss was ascertainable and specifically pleaded. I therefore award interest on the sum of Kshs.1,521,200.00 at court rates from 22nd October 2019, the date of filing the suit, until payment in full. 8. Costs follow the event. The Plaintiff has substantially succeeded and is accordingly entitled to the costs of the suit. **Disposition** 1. Consequently, Judgment is hereby entered for the Plaintiff against the Defendants jointly and severally as follows: 1. Kshs.1,521,200 .00 being Special Damages proved; 2. Interest on the said sum at court rates from 22nd October 2019 until payment in full; 3. Costs of the suit to the Plaintiff; and 4. The claim for **Kshs.30,000.00** for loss of use and Police Abstract of Kshs.200.00 is dismissed for want of strict proof, the only supporting document being an invoice without a receipt or other satisfactory evidence of actual payment or expenditure. 2. For avoidance of doubt, the Plaintiff's claim for **Kshs.1,551,400.00** succeeds to the extent of **Kshs.1,521,200.00** 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **19.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 19TH DAY OF AUGUST ,2026** **In the presence of :** M/s Mwangangi for the Plaintiff Mr.Otieno for the Defendant Court Assistant: Phoebe.