https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6843

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E1013 OF 2024** **EVAN MIGWI MURIITHI…..……..……..………….... …..APPELLANT** **VERSUS** **HELLEN NKUENE KINYUA …………………...….…1st RESPONDENT** **ANTONY KAARIA AKITHI……………………………2nd RESPONDENT** **JAMES NJUGUNA WANJIKU………………..…………. THIRD PARTY** (**BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF THE SMALL CLAIMS COURT AT NAIROBI BY HONOURABLE KIONGO KAGENYO (RESIDENT MAGISTRATE) DELIVERED ON 26th DAY OF AUGUST 2024 IN MILIMANI SCCC NO. E3564 OF 2023)** **BETWEEN** **EVAN MIGWI MURIITHI …………………………..…..… CLAIMANT** **VERSUS** **HELLEN NKUENE KINYUA………..………………..…1st RESPONDENT** **ANTONY KAARIA AKITHI……..……………..………2nd RESPONDENT** **JUDGEMENT** 1. **INTRODUCTION** 2. The Appellant filed a material damage claim before the Small claims court where he averred that he was the registered owner of Motor Vehicle Registration No **KAU 585S Toyota Isuzu Mini Bus Matatu** (hereinafter referred to as the 1st suit Motor Vehicle ), and sued the respondents as the registered/beneficial owner of Motor Vehicle Registration No **KBQ 013C** ***Nissan UD Bus*** ( hereinafter referred to as the 2nd suit Motor vehicle) 3. He averred that on or about the 26th April 2023 the 1st suit motor vehicle was lawfully being driven along Haile Selassie Avenue within Nairobi city, when the respondents driver/agent/servant did so recklessly and carelessly drive the 2nd suit motor vehicle and cause it to ram into the rear right wing of the 1st suit motor vehicle and as a consequence of chain reaction the 1st suit motor vehicle also rammed into the car that was ahead of it. As a result of the collision the 1st suit motor vehicle was extensively damaged occasioning him to suffer substantive loss and damage. 4. The Appellant particularized the negligence of the respondents driver and asserted that the respondents were vicariously liable for his actions. He prayed to be awarded at total of ***Kshs.370,076.00/=*** being costs for repair of the material damage, loss of income for 14 days when the 1st suit motor vehicle was being repaired, Motor vehicle assessment costs, cost of Motor vehicle search and disbursements. 5. In response to the claim, the respondents filed their response to statement of claim, where they categorically denied all the averments made by the 1st respondent in his statement of claim and further specially denied being the registered and/or beneficial owner of the 2nd suit motor vehicle as they had sold it to one ***James Njuguna Wanjiru***, who should be enjoined as the rightful respondent to the suit. They also denied all the particulars of damages and loss incurred and put the appellant to strict proof thereof 6. The Appellant filed third party proceedings against ***James Njuguna Wanjiru*** and though served he did not enter appearance. At trial the parties consented to take oral evidence of the police officer and then proceed with the appellant case under section ***30 of the small claims court Act***. **PW1 PC Julius Kimathi** from Kamukunji traffic base confirmed that the accident occurred and it was reported at their station and a police abstract was issued. Investigation undertaken revealed that the 2nd suit motor vehicle which was to blame for causing the said accident. 7. In defence the 2nd respondent testified and produced the sale agreement to confirm that he had sold the 2nd suit motor vehicle to the third party on 7th February 2022 and was not the its owner as at the date of the accident, nor was the person driving the said motor vehicle his driver , employee and/or agent. He prayed that the suit against them be dismissed with costs. 8. The trial Magistrate did consider the evidence adduced and held that the 3rd party was 100% liable for the accident that damaged the 1st suit motor vehicle. On quantum the trial court awarded the appellant **Ksh.8,090/=** being assessment charges and NTSA search receipt but dismissed his claim for repair costs and loss of user on the basis that though pleaded, they were not specifically proven. The Appellant was also awarded all-inclusive costs of ***Kshs.17,000/=*** . 9. **THE APPEAL**. 10. The Appellant, being dissatisfied by this decision, did file their Appeal seeking to have the said judgment overturned and raised the following grounds of appeal. * 1. ***The learned Adjudicator misapplied the law on standard of proof in material damage claims thereby reaching the finding that the Appellant did not adduce sufficient evidence of repair costs.*** 2. ***The learned Adjudicator misapplied the law on standard of proof in material damage claims thereby reaching the finding that the Appellant did not adduce sufficient evidence of loss of income.*** 3. ***The learned Adjudicator completely ignored the claimants evidence on repair costs.*** 4. ***The learned Adjudicator completely ignored the claimants evidence on loss of income.*** 5. ***The learned Adjudicator completely ignored the claimants submissions on the nature of material damage claims, leading to the erroneous conclusion that the claimant did not prove his claims for repair costs and loss of income.*** 11. The Appellant thus prayed that this appeal be allowed, the decision of the trial magistrate be set aside and that the y be granted repair costs as pleaded in the sum of **Kshs.248,124/=** and loss of income of **Kshs.113,862/=** plus interest from the date of filing the suit. 12. **ANALYSIS AND DETERMINATION** 13. I have considered the entire record of Appeal and pleadings filed, the grounds of appeal raised, the submissions filed by both parties, and the cited authorities. This being an appeal from the Small Claims Court, it is important to point out that **Section 38 of the**[***Small Claims Court Act***](https://new.kenyalaw.org/akn/ke/act/2016/2/eng%402022-12-31)provides that appeals from the said court shall be only on issues of law. An appeal limited to matters of law does not permit the appellate court to substitute the tribunal's decision with its own conclusions based on its own analysis and appreciation of the facts. See **John Munuve Mati Vr The returning officer, Mwingi North Constitency & 2 others (2018) eKLR.** 14. The issues that arise for determination are as follows 15. ***Whether the trial Magistrate erred in failing to award the appellant special damages pleaded for in terms of material damage and loss of profit.*** 16. ***Who should bear the costs of this Appeal.*** 17. ***Whether the trial Magistrate erred in failing to award the Appellant special damages pleaded for material damage loss and loss of profit.*** 18. The trial Magistrate held that though the appellant had pleaded special damages, but he had not proved the same because he did not provide receipts to prove payment of costs of repairing his vehicle and actual days of repairs and proceed to dismiss the claims sought under this head. 19. The 1st respondent did produce his assessment report from M/S Quantum Motor Assessors and Valuer dated 02.05.2023, which confirmed that the costs of repairing the 1st suit motor vehicle was ***Kshs.248,124.00/=.*** 20. In the case of ***Silas Mutua Mberia Vs Muthoni Njue Veronica (2021) Eklr,*** it was held; ***“ it’s thus clear that the appellants only needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that the repairs were actually done and paid for. It must always be remembered that the balance of proof on the appellant was always on a balance of probabilities and not higher. The claim by the appellant was not for an expense already incurred but a claim to restore his damaged motor vehicle to its pre- accident state. The value of the damage was assessed and a report produced in evidence. The Appellant was not legally required or obligated to specifically prove the claim by production of receipts ……..”.*** 1. The same position was held by the court of Appeal in ***Nairobi CACA No 310 of 2025 ; Abdi Ali Dere Vs Firoz Hussein Tundal & 2 others***, where the court held that; “***Generally speaking the normal measure of damages to goods is the amount by which the value of the goods has been diminished. The cost of repair is prima facie the measure of diminution in value of the goods and therefore the correct measure of the loss suffered. Where, however, the goods are destroyed, the owner, is entitled to restitutio in intergrum and the normal measure of damages is the cost of replacement of goods, that is the market value at the time and place of destruction.”*** 1. The learned trial magistrate was therefore wrong to hold that there was no proof of repair, and the said holding was a misdirection, which must be corrected. 2. On the final issue as to whether the appellant was entitled to loss of use of his motor vehicle for 14 days. The appellant also specifically pleaded to be awarded loss of income at (**Kshs.8,133 x 14 days=Kshs.113,862.00/=)** and provided as part of his evidence daily collection workout sheet to back him claim. Unfortunately, the trial magistrate completely failed to consider this claim in his judgment, which again is a glaring error on the face of the record. It was specifically pleaded and proved by uncontested evidence and thus ought to have been allowed. 3. **DISPOSTION** 4. Having considered all the grounds raised in the Appeal I do set-aside that the judgment and decree of the ***Hon Kiongo Kagenyo (Resident Magistrate/Adjudicator)*** dated 26th day of August 2024 delivered in ***NAIROBI SCCCOMM CASE NO 3564 OF 2023*** dismissing the Appellants claim for special damages for material damage and loss of user and award the same as prayed for in the plaint . The same will attract interest at court rates from the date of filing this suit until date of payment in full. 5. Each part will bear their own cost for this Appeal. 6. Stay of execution 45 days. 7. It is so Ordered **Judgement written, dated and signed at MARSABIT this 18th day of MAY 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered on the virtual platform, Teams this 18th day of MAY 2026.** **In the presence of;** NA ………………………………….for Appellant N/A ………………………………….for Respondent Jarso ………………………………….Court Assistant