https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/454

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E1593 OF 2025** **MURBAN ENGINEERING LIMITED.............................................................PLAINTIFF** **VERSUS** **JAMES GITONGA WANJIRU alias JAMES GITONGA WAMBUI…..…..1ST DEFENDANT** **HANNAH WAMBUI GATHUNGU....................................................2ND DEFENDANT** **JUDGMENT** **Background** 1. The Plaintiff, Murban Engineering Limited, instituted this suit by a Plaint dated 15th October 2025 and filed on 16th October 2025 seeking recovery of special damages arising from a road traffic accident which occurred on 12th November 2022 at Makande along the Kibarani Causeway on the Mombasa–Nairobi Highway involving Motor Vehicle Registration No. KBX 166F Nissan Pick-Up and Motor Vehicle Registration No. KCK 435Y Isuzu FRR. 2. The Plaintiff pleaded that at all material times it was the registered, beneficial and insured owner of Motor Vehicle Registration No. KBX 166F Nissan Pick-Up. It further pleaded that the Defendants were the registered owners of Motor Vehicle Registration No. KCK 435Y Isuzu FRR, the 1st Defendant being its beneficial and insured owner. 3. The Plaintiff averred that on 12th November 2022 its motor vehicle was lawfully being driven along the said road when the Defendants' motor vehicle, through the negligence of the Defendants or their authorised driver, servant or agent, lost control and collided with the Plaintiff's vehicle causing extensive damage thereto. The Plaintiff attributed numerous particulars of negligence to the Defendants and pleaded the doctrine of res ipsa loquitur. 4. Consequently, the Plaintiff sought judgment against the Defendants jointly and severally for: 5. Special damages of Kshs.113,618 comprising: Repair costs........................................Kshs.105,328 Assessment fees.................................Kshs.7,540 NTSA search fees...............................Kshs.550 Police Abstract fee.............................Kshs.200 Total..............................................Kshs.113,618 1. Costs of the suit. 2. Interest at court rates. 3. Any other relief the Court deemed fit. **Proceedings** 1. The record shows that the Defendants were duly served with Summons to Enter Appearance together with the pleadings but failed to enter appearance or file any defence within the prescribed period. Upon the Plaintiff's request, interlocutory judgment was entered against the Defendants and the matter was thereafter fixed for formal proof. 2. During the formal proof hearing, the Plaintiff called two witnesses and produced documentary evidence in support of its claim. The Defendants neither attended the hearing nor tendered any evidence. The Plaintiff thereafter closed its case and subsequently filed written submissions. **The Plaintiff's Evidence** 1. PW1, Nicholas Otieno Ochieng, the Managing Director of the Plaintiff company, adopted his witness statement and produced the Plaintiff's documentary bundle as exhibits. He testified that the Plaintiff owned Motor Vehicle Registration No. KBX 166F Nissan Pick-Up which was extensively damaged after being hit by Motor Vehicle Registration No. KCK 435Y Isuzu FRR on 12Th November 2022. 2. He testified that following the accident: the vehicle was inspected by the Police; Sherwin Associates prepared an assessment report at a cost of Kshs.7,540; repairs were undertaken by S.P. Hirani & Sons Mombasa at a total cost of Kshs.105,328; the Plaintiff obtained a Police Abstract upon payment of Kshs.200; and an NTSA search conducted at a cost of Kshs.550 confirmed ownership of the Defendants' motor vehicle. He urged the Court to allow the Plaintiff's claim as pleaded. 3. PW2, Mtsoma Zuma Mtsoma, testified that he was the Plaintiff's driver. He stated that on 12th November 2022 at about 11.00 a.m. he was driving along the Kibarani Causeway when the Defendants' Isuzu FRR suddenly swerved into his lane and collided with the driver's side of the Plaintiff's vehicle. 4. The Plaintiff also produced documentary evidence including its Certificate of Incorporation, CR12, motor vehicle logbook, Police Abstract, Certificate of Examination of Motor Vehicle, assessment report, invoices, receipts, cheque evidencing payment for repairs, NTSA search, demand letters, statutory notice to the insurer and photographs depicting the damage sustained by its motor vehicle. **Plaintiff's Submissions** 1. Counsel for the Plaintiff submitted that the Plaintiff had proved its case on a balance of probabilities through both oral and documentary evidence. It was further submitted that interlocutory judgment having already been entered against the Defendants, liability had been conclusively determined and only the assessment of damages remained for determination. In support of that proposition, reliance was placed on Felix Mathenge v Kenya Power & Lighting Company Ltd [2008] eKLR. 2. Counsel further submitted that ownership of both motor vehicles had been sufficiently established through the Logbook, Police Abstract and the NTSA Search and relied on Samuel Mukunya Kamunge v John Mwangi Kamuru [2005] eKLR for the proposition that, where unchallenged, a Police Abstract is capable of proving ownership on a balance of probabilities. 3. Finally, the Plaintiff submitted that the special damages pleaded had been specifically pleaded and strictly proved by receipts, invoices, the assessment report, repair documents and the NTSA search receipt and urged the Court to award the entire sum of Kshs.113,618 together with costs and interest. **Issues for Determination** 1. Having carefully considered the pleadings, the evidence adduced during the formal proof hearing, the documentary exhibits produced and the Plaintiff's written submissions, the issues falling for determination are: 2. What is the effect of the interlocutory judgment entered against the Defendants? 3. Whether the Plaintiff proved ownership of the respective motor vehicles. 4. Whether the Plaintiff proved its claim for special damages. 5. Who should bear the costs of the suit and interest. **Analysis and Determination** Effect of the Interlocutory Judgment 1. The record demonstrates that the Defendants were duly served with Summons to Enter Appearance together with the Plaint and accompanying documents but failed to enter appearance within the prescribed period. Upon the Plaintiff's request, interlocutory judgment was entered and the suit thereafter proceeded by way of formal proof. 2. The legal effect of an interlocutory judgment entered regularly is now settled. Once such judgment has been entered, liability is no longer an issue for determination unless the judgment is first set aside. The subsequent proceedings are limited to proof of the reliefs sought and assessment of damages where applicable. 3. The Plaintiff relied on the decision in Felix Mathenge v Kenya Power & Lighting Company Ltd [2008] eKLR, where the Court of Appeal held that after interlocutory judgment has been regularly entered, liability becomes final and the trial court's role is confined to assessment of damages. I respectfully agree with that statement of the law. The interlocutory judgment entered herein settled the issue of liability against the Defendants. The only question remaining for determination is whether the Plaintiff has proved the specific reliefs sought. Ownership of the Motor Vehicles 1. Although liability stands determined by virtue of the interlocutory judgment, the Plaintiff nevertheless adduced evidence proving ownership of both motor vehicles involved in the accident. 2. In respect of Motor Vehicle Registration No. KBX 166F Nissan Pick-Up, PW1 testified that the vehicle belonged to the Plaintiff company. That evidence was corroborated by the Logbook produced in evidence showing the Plaintiff as the registered owner. The Police Abstract equally identified the Plaintiff's motor vehicle as one of the vehicles involved in the accident. 3. Regarding Motor Vehicle Registration No. KCK 435Y Isuzu FRR, the Plaintiff produced a Certificate of Search from the National Transport and Safety Authority showing the vehicle to be jointly registered in the names of James Gitonga Wanjiru and Hannah Wambui Gathungu. The Police Abstract also identified the 1st Defendant as the beneficial and insured owner of the vehicle. 4. The Plaintiff's evidence on ownership remained wholly unchallenged. No contrary evidence was placed before the Court and I am satisfied that the Plaintiff proved, on a balance of probabilities, ownership of both motor vehicles involved in the accident. Whether the Plaintiff Proved Special Damages 1. The Plaintiff's claim is one for special damages only. It is settled law that special damages must not only be specifically pleaded but must also be strictly proved. The Plaintiff pleaded special damages amounting to Kshs.113,618, itemised as follows: 2. Repair costs........................................Kshs.105,328 3. Assessment report fees.........................Kshs.7,540 4. NTSA search fees...............................Kshs.550 5. Police Abstract fee.............................Kshs.200 6. Total..............................................Kshs.113,618 7. I have examined the documentary evidence produced by the Plaintiff. With regard to the repair costs, the Plaintiff produced: the Certificate of Examination of Motor Vehicle; the Assessment Report prepared by Sherwin Associates; the repair invoice issued by S.P. Hirani & Sons; the ETR receipt; and the cheque evidencing payment of Kshs.105,328. These documents consistently support the repair costs claimed. 8. The Plaintiff also produced documentary evidence confirming payment of Kshs.7,540 for the preparation of the Assessment Report. The NTSA Search was supported by both the Search Certificate and the official NTSA receipt evidencing payment of Kshs.550. 9. Regarding the Police Abstract fee of Kshs.200, PW1 testified that the amount was paid in obtaining the Police Abstract. Although no receipt was produced, the Police Abstract itself was produced in evidence. Courts have on numerous occasions taken judicial notice that receipts are ordinarily not issued upon payment for Police Abstracts. I therefore accept that modest claim as proved. 10. The documentary evidence produced by the Plaintiff is internally consistent and remained completely unchallenged. I am satisfied that the Plaintiff strictly proved special damages in the total sum of Kshs.113,618, which I award in full. **Costs and Interest** 1. Costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act unless the Court, for good reason, orders otherwise. The Plaintiff has succeeded in proving its claim and I find no reason to depart from the general rule. 2. With regard to interest, the Plaintiff sought interest on special damages from the date of filing suit. Since special damages had crystallised before institution of these proceedings and were specifically pleaded and proved, interest shall accrue from the date of filing the suit until payment in full. **Final Orders** 1. Accordingly, judgment is hereby entered for the Plaintiff against the Defendants jointly and severally as follows: 2. Special Damages: Kshs.113,618.00 3. Costs of the suit. 4. Interest on Kshs.113,618 at court rates from the date of filing suit until payment in full. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**