https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8440

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **HCCA NO.E 151 OF 2015** **NICHOLAS AKWALE MUMANYI................................APPELLANT** **=VERSUS=** **EPHRAIM KARIMI MACHARIA................................RESPONDENT** [Being an Appeal from the Judgment of Hon. Edward Oboge - Adjudicator delivered in Nakuru Small Claims Court in SCCC No. E 508 OF 2024] **JUDGMENT** 1. This appeal arose Appeal from the Judgment of Hon. Edward Oboge - Adjudicator delivered in Nakuru Small Claims Court in SCCC No. E 508 OF 2024 on 19th May,2025. 2. In his statement of Claim dated 19th September 2024 the appellant claimed kshs.322,384 being compensation for material loss to his motor vehicle Reg. No. KCW 466D. He averred that on or about 24/9/2021 while he was driving the aforesaid motor registration along Nakuru-Eldoret Road at Ngata Area, the respondent so negligently and recklessly drove/controlled and/or managed motor vehicle Registration Number KCD 956D that he caused it to hit motor vehicle Registration Number KCW 466D, extensively damaging it. 3. The claimant also averred that as a result of the accident he incurred loss totaling Kshs.322,383 for assessment fees, spare part expenses, towing, re-inspection fees and motor vehicle search. 4. The appellant, further, averred that at the material time the vehicle was insured by Pioneer General Insurance Kenya Limited on whose behalf the suit was instituted under the doctrine of subrogation. 5. In response, the respondent denied the appellant’s claims vide his statement of response dated 30th October, 2024. 6. CW1, Jimmy Njihia, an assessor at Cheriah Automobile Assessors and Valuers produced assessment report (C. Exhibit 3) for motor vehicle Registration No. KCM 466D Toyota Fielder. He also produced re-inspection report (C. Exhibit 3) as evidence. Finally, CW1 stated that the the appellant’s motor vehicle was driven to the garage and no towing charge were incurred. 7. CW2, Nicholas Momanyi Akhwale however, stated his motor vehicle was towed from the scene of the accident to police station and from Nakuru to Nairobi. On being asked why his insurer gave him kshs.10,500, he stated it was for towing, CW3, Karan Jackson, however stated that the monies were given to the appellant for parts not supplied. 8. CW3 produced the claimant’s documents 11 – 25 to support this claim. The documents are;- 9. C.Exhibit 11 – Invoice issued by Midland Auto Limited for Kshs.190,183 10. C.Exhibit 12-Invoice and Legal receipt issued by Titanic Auto Solution Limited for Kshs.23,000. 11. C.Exhibit 13- Invoice issued by Shamas Motor Parts Limited for Kshs.75,500 12. C.Exhibit 14-Credit Note issued by Shamas Motors Parts Limited for Kshs.25,000 13. C.Exhibit 15-Cash sale receipt from Kinamba Evans Enterprises for towing for Kshs.29,500 14. C.Exhibit 16-Cash sale receipt from Kinamba Evans Enterprises for towing for Kshs.10,000 15. C.Exhibit 17-Claim fee voucher dated 8/11/2021 for Kshs. 39,500 16. C.Exhibit 18- Claim fee payment voucher dated 23/10/2021 for Kshs.23,000 17. C.Exhibit 19-Claim fee payment voucher dated 25/10/2021 for Kshs.50,500 18. C.Exhibit 20-Claim fee payment voucher dated 8/11/2021 for Kshs.2,320 19. C.Exhibit 21-Claim fee for payment voucher dated 6/11/2021 for Kshs.190,183 20. C.Exhibit 22-Claim fee for payment Voucher dated 23/11/2021 for Kshs.10,500 21. C.Exhibit 23-Claim fee for payment voucher dated 23/10/2021 for Kshs.6,380 22. C. Exhibit 25 -Payment receipt for copy of record for Kshs.550 23. The trial court in its Judgment held that special damages must be specifically pleaded and proved. In this regard, the court found vouchers and credit notes produced by the respondent are not receipts and therefore not admissible as evidence. Based on its finding, the trial court awarded the appellant only Kshs.29,380 24. Being dissatisfied with the trial court’s Judgment the plaintiff preferred this Appeal. The Appeal is based on 4 grounds. The grounds can be summarized into one ground which is that the learned trial magistrate erred in law and fact by denying the appellant the sum of Kshs.322,383 claimed. 25. The Appeal was argued by way of written submissions. In his submissions the appellant pointed out he provided the trial Court with motor vehicle assessment report dated 27th September 2021 showing the damaged parts of the claimant’s motor vehicle and the costs to be incurred during its repair. In this regard, the appellant submitted that the assessment report sufficiently showed the amount that was incurred by the claimant during the repair which was paid by the claimant’s insurer under the doctrine of subrogation. 26. To support the above position the Appellant relied on the case of **Nkuene Dairy farmers Co-operative Society & another vs Ngacha Ndeiya [2010] eKLR** in which the Court of Appeal states as follows; **“In our view special damages in a material claim need not to have actually been incurred. The claimant is only required to show that the extent of the damage and what it would cost to restore the damaged item to as reer as possible the condition it was before the damage was complained of.** **An accident assessor gave details of the parts of the respondent’s vehicle that were damaged against each item he assigned a value. We think the particulars of damage and the value of repairs were given with some degree of certainity.”** 1. The Appellant also relied on the case of **David Bagine vs Martin Bundi [1997] eKLR in** which the Court of Appeal held that: **“the Assessors report was sufficient proof and the failure to provide receipts for any repairs was of fatal to the respondent’s claim.”** 1. The Court has carefully re-evaluated the evidence adduced before the trial Court. It has also considered the evidence submissions by the parties. This being first appeal the Court is obligated to re-evaluate the evidence adduced in the trial in order to arrive at its own independent conclusion bearing in mind that it has neither seen or heard the witness and should make allowance in this respect (**see: Selle vs Associated Motor Boat Company (1968) EA).** 2. Having analyzed the evidence on record, the pleadings and submissions by the parties, the court only identified only one issue for determination. The issue for determination in this matter is whether the appellant proved the claim of Kshs.322,383 herein. I agree with trial magistrate that special damages ought to be strictly proved and vouchers, credit notes and invoices produced by the claimant are not sufficient proof for special damages. If the alleged payments were made, what was so difficult for the appellant to avail proof in form of receipts, cheques, EFT transfers, MPESA etc. 3. In taking the above position, this Court is guided by decision in case of **BANQUE INDOSUEZ V D J. LOWE & COMPANY LTD, (2006) 2 KLR 208,** at 222, where it was held :- “**It is simply not enough for the respondent to pluck from the air and throw them in the face of the court and expect them to be awarded.** **It is trite that special damages must not only be claimed specially but proved strictly for they are not the direct and natural or probable consequences for the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves**.” 1. In the above case the claim for special damages was pleaded in paragraph 7 of the plaint and at the hearing the appellant produced a bundle of cash sale receipts and payment vouchers to prove the claim. The learned judge dismissed the claim in the following terms: “**The plaintiff also claims breakdown and labour charges amounting to kshs.272,520/- (sic). At the time of PW1’s testimony the receipts and vouchers intended to be produced did not have revenue stamps. The court allowed counsel to go and get the same and he did. He produced the receipts and vouchers as a bundle Exhibit No. 7. In the bundle there are only 2 receipts issued to the plaintiff which are transport of the wreckage and one is dated 15/8/02, while the other is dated 2/2/03. The variation in dates is not explained. the other documents in the bundle are vouchers. vouchers are not evidence of payments. they can be made by the plaintiff without there being any payment. the documents did not support the claim at all.”** 1. Further, in the case of **Guardian Coach Ltd & Another v Kiptoo (Civil Appeal 34 of 2020 [2022] KEHC 12397 (KLR) (26 May 2022)** it was held that:- “**From the record, the respondent produced various receipts, bills and invoices from various hospitals, health providers and chemist in proof of the cost of medical expenses pleaded. Notably however, it is a well settled principle of law that an invoice is not proof of payment. Special damages can only be proved by producing actual receipts or invoices endorsed with the word “paid” (See:** **Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR’’** 1. It is, however, noted the receipt for Kshs.2320 billed for re-inspection fees and Kshs.550 for motor vehicle details search were produced by the appellant but said amounts were not awarded by the trial court. This Court awards the same. In respect to claim for Kshs.39,500, though receipted by way of cash sale receipt, the Court declines to award the same in light of the conflicting and contradictory evidence by the appellant’s own witnesses relating to the same. CW1 stated the claimant did not incur towing charges and CW 3 stated that Kshs.10,500 paid to the claim as towing charges was for spare parts. 2. Based on findings above, this appeal succeeds to the limited extent that apart Kshs.29,380 awarded the claimant is awarded a further Kshs.2870 making a total of Kshs.32,250.Considering that that this appeal succeeded, albeit marginally, and the same the same was not defended, I make no order as to costs. 3. The upshot of my findings above are: 4. **This appeal is allowed.** 5. **The Judgement of trial Court delivered on 14th May, 2025 is set aside and substituted with an award of Kshs.32,250 as special damages.** **DATED and DELIVERED at online via MS teams on this 16th day** **of JUNE 2026.** **HON. P.K. ROTICH** **JUDGE**