https://new.kenyalaw.org/akn/ke/judgment/scc/2026/191

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT NAIROBI** **MILIMANI LAW COURTS** **SCCOMM NO. E7159 OF 2025** **NELSON NDUNGU MWANGI……….…............…..……............CLAIMANT** **VERSUS** **TOP RIDES MOTORS LIMITED…………....……….……….RESPONDENT** **JUDGMENT** 1. The claimant instituted this claim vide the statement of claim dated 27/10/2025 seeking judgment against the respondent for the sum of Kshs. 830,000/= plus costs and interests on the basis that he authorized the respondent to sell his motor vehicle registration number KCB 526T and the vehicle was not to be moved from the respondent’s showroom. That the vehicle was however moved and traced at a different location and was towed to a storage yard at a costs of Kshs. 30,000/=. That the vehicle was inspected and its engine had gotten damaged and needed a new engine at Kshs. 800,000/=. 2. The respondent filed the response dated 23/12/2025 and though it admitted that there existed an agency relationship between the parties in respect of the sale of the motor vehicle, the respondent denied liability for the loss and damage complained of. 3. The claimant filed a response dated 11/5/2025 maintaining its case and denied the counterclaim. That Kshs. 100,000/= was only payable upon completion of work by the respondent. 4. The claim proceeded under **Section 30** of the **Small Claims Act** and the claimant filed submissions dated 1/3/2026 whereas the respondent’s were not on record. I have considered those submissions alongside the pleadings and documents on record. The main issue for determination is whether the claimant has proven the claim as against the respondent. 5. The standard of proof in civil matters is on a balance of probabilities. See the court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR**.It is also trite that he who alleges must prove as provided for in ***Section 107 and 108 of the Evidence Act.*** 6. The existence of the agency agreement was not in dispute as evidenced by the agreement dated 7/5/2024 authorizing the respondent to sell the subject vehicle. Clause 9 therof provided that: - ***“the agent shall be solely responsible for any damage caused to the subject motor vehicle while in its custody”*** 1. As such, the respondent had a duty to keep the vehicle safely while under its custody and control. The claimant claimed that on 31/8/2024, he was informed by the respondent that the vehicle had been damaged while in use, and he traced it at Shell Petrol Station along Thika Road near Mountain Mall where it had been abandoned. That he paid Kshs. 30,000/= towing fees and the towing receipt was produced. 2. I do note that the respondent did not explain how the vehicle left its showroom, under whose authority it was being driven, who was in possession of it at the time of the breakdown, or how it eventually came to be abandoned at a petrol station. This information was within the respondent’s knowledge. The respondent merely filed a response containing general denials. 3. On the other hand, the claimant produced documents demonstrating the actual acquisition of a replacement engine, including a receipt issued on 15/12/2024 evidencing payment of Kshs. 650,000/= for engine EJ20-E298474, importation documents and a subsequent service invoice relating to installation and servicing of the vehicle. 4. It is however trite that a quotation merely indicates an anticipated cost and is generally insufficient proof of actual expenditure. Where actual receipts are available, the Court is guided by the proven expenditure. In the present case, the documentary evidence produced by the claimant establishes actual purchase of a replacement engine at Kshs. 650,000/= rather than Kshs. 800,000/= as pleaded. 5. In the end, I find that the claimant partly proved the claim on a balance of probabilities. I am convinced that the respondent breached its duty as an agent by failing to keep the subject motor vehicle safely while it was in its custody, resulting in damage. 6. I say so noting that whereas no mechanical assessment report was produced to show the precise nature of the engine failure, the respondent did not contest the claimant’s evidence that the vehicle sustained damage while in its custody. The respondent did not also call any evidence or produced any inspection report to challenge the claimant’s assertion that the engine required replacement. I do therefore find that the occurrence of damage was proved on a balance of probabilities. 7. The upshot is that I find the claim to be partly merited. To that end, I hereby order as follows: - * + 1. **Judgment is entered in favor of the claimant as against the respondent for the sum of Kshs. 680,000/=.** 2. **The sum shall attract interest at court rate from the date of judgment till payment in full.** 3. **The respondent is awarded costs of the suit assessed at Kshs. 30,000/=.** 8. The respondent is awarded 30 days stay of execution. **It is so decreed.** **DATED** and **DELIVERED** via **CTS** at **NAIROBI** this 7TH Day of August 2026 **HON. GLADYS. W. KIAMAH** **RESIDENT MAGISTRATE/ADJUDICATOR**