https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9741

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA E030 OF 2023** **MT KENYA WHOLESALERS TRADERS LIMITED …..APPELLANT** **VERSUS** **PAUL KILONZO KISALU…………………….…………..RESPONDENT** *(Being an appeal from the judgment of HON. KHAPOYA S. BENSON (PM) in KITHIMANI PMCC NO. 93 of 2019 delivered on 21/12/2022).* **JUDGMENT** 1. The Appellant instituted KITHIMANI PMCC NO. 93 OF 2019 against the Respondent for the recovery of special damages totalling Kshs. 1,091,383.95, which arose from extensive damage to the Appellant's motor vehicle allegedly caused by the Respondent's driver's negligence. 2. The cause of action arose from an accident that occurred on 24th June 2016 along the Thika-Mwingi road. 3. The Appellant's case was that its driver, Jackson Kioko Kimatu, was driving along the road and at the Kitui junction, he stopped and indicated that he was turning right to allow an oncoming vehicle from the Mwingi direction to pass. 4. At that point the Respondent's vehicle hit his vehicle from behind on the right side, causing extensive damage from the rear to the front. 5. The Appellant relied on the testimony of its driver, its insurer's legal assistant who produced payment vouchers and receipts, and a police officer who produced a police abstract indicating the Respondent's driver was to blame. 6. The Respondent's case, presented through its driver Festus Musyimi Mbughu and its owner Paul Kilonzo Kasalu, was that the Appellant's driver had indicated left and parked beside the road, but as the Respondent's driver was overtaking, the Appellant's driver abruptly and without indicating moved back into the road, causing the Respondent's vehicle to hit the Appellant's vehicle from behind. 7. The Respondent's driver also contended that there was no oncoming vehicle, as a head-on collision would have occurred if there was one, and asserted that he had never been charged with any traffic offence. 8. Regarding liability, the trial court placed little material value on the testimony of the police officer who testified for the Appellant. 9. The trial court noted that he was not the investigating officer of the accident, had not been stationed at the relevant police station when it occurred, and did not visit the scene, and also failed to produce any sketch maps to demonstrate the cause of the accident or explain why the Respondent's driver was never charged. 10. The trial court further concurred with the Respondent's argument that if an oncoming vehicle had been present as the Appellant's driver claimed, a head-on collision would have been inevitable, which did not occur, and noted that no details of that alleged oncoming vehicle were availed to court. 11. Concerning the quantum of special damages, the trial court found that the Appellant had failed to prove its claim as no photographs of the damaged vehicle were produced to ascertain the extent of the damage for itself and no receipts of payment were availed to the court, despite the claim being for special damages which must be specifically pleaded and proved. 12. The trial court ultimately dismissed the Appellant's suit against the Respondent with costs, finding that the Appellant had failed to establish its case on a balance of probabilities. 13. The appellant appealed against the said judgment on the following grounds; 14. ***THAT the learned trial Magistrate erred in law and in fact when he dismissed the Plaintiff's suit.*** 15. ***THAT the learned trial magistrate erred in law and fact in failing to consider the evidence tendered and the Appellant's submissions on liability and Special Damages.*** 16. ***THAT the Learned Magistrate erred in law and fact by holding that the actual Investigating Officer of the accident subject of the suit is the only one who should testify in court.*** 17. ***THAT the Learned Magistrate erred in law and fact by holding that the Respondent's driver ought to have been charged for a traffic offence in court for him to be blamed for the accident.*** 18. ***THAT the Learned Magistrate erred in law and fact by holding and finding that the Plaintiff ought to have availed photographs to prove the extent of damage of his motor vehicle.*** 19. ***THAT the Learned Magistrate erred in law and fact for relying on speculation that if a motor vehicle overtakes another one, a head on collision must occur to reach his decision.*** 20. ***THAT the Learned Trial Magistrate erred in law and fact in when he stated that the Appellant did not plead and prove his Special Damages when the same were pleaded and proved in form of payment vouchers.*** 21. ***THAT the trial magistrate misdirected himself by applying the wrong standard of proof.*** 22. ***THAT the learned trial magistrate erred in law and fact by failing to exercise his discretion in a judicious manner.*** 23. ***THAT the learned trial magistrate erred in law and fact by failing to consider the merits of the Appellant's suit.*** 24. The parties filed written submissions as follows; The appellant submitted that the trial magistrate's decision to dismiss their claim for Ksh. 1,091,383.95, which was incurred by their insurer to repair their motor vehicle following an accident caused by the respondent's driver was erroneous. 25. The appellant argues that the magistrate erred in law and fact by holding that only the actual investigating officer could testify about the accident, yet the police officer who did testify produced the Police Abstract and read from the Occurrence Book, which contained the investigating officer's findings that the respondent's driver was to blame. 26. The appellant submits that there is no legal requirement for the investigating officer to be the sole witness, as officers may be unavailable due to transfer, sickness, or death, and reliance is placed on section 33(b) of the Evidence Act. 27. The appellant also contends that the magistrate speculated that a collision between the respondent's vehicle and an oncoming vehicle was inevitable, when the evidence showed that the appellant's driver had stopped and indicated right to turn, and the respondent's driver overtook carelessly and hit from behind, with the respondent's own driver conceding that the Police Abstract blamed him. 28. The appellant emphasizes that parties are bound by their pleadings and the court cannot adjudicate on unpleaded matters, citing the Supreme Court of Malawi in **Malawi Railways Limited v Nyasulu [1998] MwSC 3,** as approved in **Ondieki v Omoi & 3 others (Civil Appeal E114 of 2023) [2025] KEHC 1474 (KLR) (25 February 2025).** 29. The appellant further argues that the magistrate erred in finding that special damages were not pleaded and proved, when the appellant had specifically pleaded the expenses and produced payment vouchers, namely Voucher No. F068704 for Ksh. 5,500 and Voucher No. F075444 for Ksh. 1,085,883.95, showing payments made by ICEA Lion General Insurance Ltd to Michael Kimani and Toyota Kenya Limited on account of Mount Kenya Wholesalers Ltd. 30. The appellant contends that a payment voucher is sufficient proof of payment, relying on **Abdi Ali Dere v Firoz Hussein Tundal & 2 Others (2013) eKLR**, as quoted in **Ndungu v M'Ikiao & another (Civil Appeal 182 of 2019) [2022] KEHC 15753 (KLR) (15 November 2022),** which held that a payment voucher can confirm payment just like a receipt. 31. The appellant also submits that the magistrate applied a criminal standard of proof beyond reasonable doubt, rather than the civil standard of balance of probabilities, and wrongly suggested that the respondent's driver could not be held liable without a traffic charge, which has no legal basis. 32. The appellant notes that the Police Abstract clearly blamed the respondent's driver for careless driving. 33. In conclusion, the appellant submits that they discharged their burden of proof under sections 107(1) and 109 of the Evidence Act, proving negligence and special damages on a balance of probabilities, and therefore the appeal should be allowed. 34. The respondent submitted that the appeal is baseless, devoid of merit, and a waste of the court's time, and ought to be dismissed with costs to the respondent. 35. The respondent notes that although the memorandum of appeal raises ten grounds, they are essentially reducible to one main ground: that the lower court's judgment was against the weight of evidence. 36. The respondent acknowledges that this being a first appeal, the court has a duty to re-examine and evaluate the evidence independently, as stated in Selle and another v Associated Motor Boat Company Ltd & another (1968) 1 E.A. 123, but maintains that the trial court's findings were correct. 37. The respondent argues that the appellant's claim was for special damages, which must be specifically pleaded and strictly proved, yet the appellant failed to produce any payment receipts to support the alleged repair cost of Ksh 1,055,883.95. 38. The respondent further contends that the appellant did not supply photographs or an assessment report of the damaged vehicle, leaving the court unable to ascertain the extent of the damage and forcing it to rely on mere allegations, contrary to the principle that he who alleges must prove. 39. The respondent submits that the appellant also failed to prove how the accident occurred, as the evidence from the appellant's own witness suggested a possible head-on collision that did not actually happen, creating a doubt that was properly resolved in favour of the respondent. 40. The respondent concludes that the trial court's judgment was appropriate, well-reasoned, and based on the evidence on record, and therefore prays that the appeal be dismissed with costs, and that the lower court's decision be upheld. 41. The issues for determination in this appeal are as follows; 42. ***Whether the learned trial magistrate erred in his assessment of liability and;*** 43. ***Whether the learned trial magistrate erred in law and fact by holding that special damages were not strictly proved.*** 44. In addressing these issues, this court is guided by its overarching duty as a first appellate court to re-examine, re-evaluate, and analyze the entire record of evidence independently to arrive at its own conclusions, while remaining cognizant of the fact that the trial court had the distinct advantage of seeing and hearing the witnesses first hand. 45. This was established in the locus classicus **Selle and Another v. Associated Motor Boat Company Ltd & Another [1968] 1 E.A. 123.** 46. On the first issue of liability, the learned trial magistrate fell into grave error by disregarding the evidence of the police officer and the police abstract simply because the witness was not the original investigating officer. 47. It is a well-settled principle of law that public records, such as an official police abstract or entries in an Occurrence Book, are admissible and carry probative value even when produced by a different officer, provided they are kept in the ordinary course of official duty. 48. This positioning is safely anchored under Section 33(b) and Section 37 of the Evidence Act (Cap 80), recognizing that officers are routinely unavailable due to transfers, retirement, or illness. 49. A police abstract produced from official records constitutes prime facie evidence of its contents. 50. Furthermore, the trial court misdirected itself by treating the absence of a criminal traffic charge against the respondent's driver as an exoneration from civil liability. 51. Civil liability and criminal culpability are distinct legal concepts governed by completely different standards of proof. 52. Civil negligence is determined on a balance of probabilities, whereas criminal liability demands proof beyond a reasonable doubt. 53. The failure of the police to charge a driver does not negate negligence. The court’s reliance on the respondent's driver's clean traffic record constituted an error in law, as a civil court must independently assess the evidence of negligence led by the parties. 54. A traffic charge sheet or the lack thereof is not conclusive of civil negligence, as the civil court must strictly weigh the balance of probabilities based on the testimonies before it. 55. The trial court further engaged in impermissible speculation by concluding that a head-on collision would have been inevitable had there been an oncoming vehicle as narrated by the appellant's driver. 56. The uncontroverted evidence showed that the appellant's driver had safely stopped and indicated right to allow the oncoming vehicle to pass. 57. The respondent's driver, by hitting the stationary appellant's vehicle from behind while attempting to overtake, breached the duty of care owed to preceding motorists. 58. There is a strong prima facie presumption of negligence against a driver who hits another vehicle from behind, as it implies tailgating, speeding, or a failure to maintain a proper lookout. 59. A driver who hits a vehicle from the rear bears the primary blame unless they can show a sudden, unpredictable, and blameworthy movement by the leading vehicle. 60. The respondent's narrative that the appellant had pulled off the road and then abruptly swerved back is entirely contradicted by the nature of the impact, which caused extensive damage stretching from the rear to the front, and by the police abstract which explicitly blamed the respondent's driver for careless driving. 61. The appellant therefore successfully established the respondent's driver's sole liability for the accident on a balance of probabilities. 62. On the second issue regarding the quantum of special damages, the trial court erred by holding that the appellant’s claim failed strictly because no photographs or repair receipts were produced. 63. While it is a cardinal rule of law that special damages must be specifically pleaded and strictly proved, "strict proof" does not mean "inflexible proof" by a specific type of document to the exclusion of all other credible financial records. 64. The appellant specifically pleaded special damages of Kshs. 1,091,383.95 and produced official insurance payment vouchers, namely Voucher No. F068704 and Voucher No. F075444, demonstrating actual disbursements made by ICEA Lion General Insurance Ltd to the repairer, Toyota Kenya Limited, and the assessor, Michael Kimani, on account of the appellant. 65. The courts have progressively held that payment vouchers issued by reputable corporate entities or insurance firms constitute sufficient and strict proof of expenditure, as they represent an undeniable audit trail of money leaving an account to settle a specific liability. 66. The trial court's dismissal of the payment vouchers was overly technical and ran counter to the relaxed, pragmatic approach to proof of special damages in commercial and insurance contexts. 67. The absence of photographs goes to the weight of evidence, but it cannot override an undisputed corporate payment trail to a franchise dealer like Toyota Kenya Limited. 68. The appellant's special damages were therefore strictly proved as required by law. 69. Consequently, the trial magistrate erred by applying an excessively high standard of proof that mirrored a criminal trial rather than evaluating the matter on a balance of probabilities. 70. The appellant fully discharged both its evidential and legal burdens of proof under Sections 107 and 109 of the Evidence Act. 71. This appeal is hereby allowed and the the judgment and decree of the trial court dismissing Kithimani PMCC No. 93 of 2019 is set aside. 72. Judgment be and is hereby entered for the Appellant against the Respondent in the sum of Kshs. 1,091,383.95, together with interest thereon at court rates from the date of filing suit until payment in full. 73. The Appellant shall also have the costs of this appeal and the costs of the suit in the lower court. 74. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026** **ASENATH N. ONGERI** **JUDGE** **In the presence of** Miss Kwoma for the Appellant No appearance for Respondent Chrispin - Court Assistant