https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8836

Okemwa v Akonde & another (Civil Appeal E180 of 2024) [2026] KEHC 8836 (KLR) (Civ) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 8836 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E180 of 2024 AN Ongeri, J May 20, 2026 Between Nicholas Muturi Okemwa Appellant and Charles Otieno Akonde 1st Respondent Dominic Achoki 2nd Respondent (Being an appeal from the judgment of Hon. D. W. ASWANI (Adjudicator/RM) in Nairobi SCC Case no. E3393 of 2023 delivered on 18/1/2024) Judgment 1.The appellant in this appeal, Nicholas Moturi Okemwa was the claimant in Nairobi SCCC case no. E3373 of 2023 where he was seeking compensation for damages caused to his motor vehicle registration No. KCY 782Y in an accident that occurred on 09/11/2023 involving the 1st and 2nd respondent’s motor vehicle registration No. KBB 127L and the appellant’s said motor vehicle. 2.The claim was filed under the doctrine of subrogation since the appellant’s insurer Heritage Insurance Company compensated the appellant for the loss. 3.Interlocutory judgment was entered against the respondents who failed to enter appearance or file a defence. 4.The trial court stated that the appellant failed to prove the pleaded special damages and only awarded costs for tracing fees and copy of records amounting to ksh.14,470 together with costs and interest from the date of filing suit. 5.The appellant has appealed against the said judgment on the following grounds;i.That the trial magistrate erred in law and in fact in failing to consider the evidence on record hence arriving at an erroneous finding.ii.That the learned trial magistrate erred in law and in fact by failing to find that the appellant had proved the amount incurred as special damages.iii.That the trial magistrate erred in law and in fact in addressing herself on extraneous issues not borne of pleadings and evidence hence arriving at erroneous findings.iv.That the learned trial magistrate erred in law and in fact in both assessing and awarding the special damages claimed.v.That the learned trial magistrate erred in law and in fact in failing to analyze the totality of the evidence adduced and thereby failing to find that the claimant’s insurer had incurred the costs claimed for assessment of damage to the claimant’s motor vehicle and the repairs done.vi.That the learned trial magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision which is unsustainable in law.vii.That the learned trial magistrate erred in law and in fact by failing to consider the overwhelming evidence to the effect that the claimant’s motor vehicle had been assessed, repaired and re-inspected and there were costs incurred for that purpose. Additionally, that the claimant signed a satisfaction note after his motor vehicle was repaired.viii.That the learned trial magistrate erred in law and in fact by failing to find, despite the ample evidence that expenses had been incurred in repairing the claimant’s motor vehicle.ix.That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions in making her determination hence arriving at an erroneous finding.x.That the learned trial magistrate erred in fact and in law by failing to award the appellant special damages of Kshs.331,513/= in complete disregard of the fact that the appellant had strictly proved entitlement of the same.xi.That the learned trial magistrate erred in law and in fact in entering judgment ton quantum for a sum of kshs.14,470/= only. 6.The appellant filed written submissions as follows; That in ordinary practice of claims involving insurance companies, invoices issued are proof that a service was rendered. 7.An invoice was issued, payment was done and the absence of a receipt does not mean that payment was not made. 8.The appellant filed invoices as proof of the payment made. The insurance made the payment for the repair of the claimant’s motor vehicle and there was an assessment report, re inspection report plus photographs showing the appellant’s motor vehicle before and after repairs. 9.There was further an invoice for Kshs. 304, 384 inclusive of VAT issued by Midland Auto Care Ltd which is the garage that was tasked with repairing the appellants motor vehicle. 10.The receipt attached for payment was made in favor of the investigators, Fact Finders Investigators for Kshs 17,185 and not Kshs. 13,920 as awarded by the trial court. 11.There were also invoices for Kshs. 7,145.60 and Kshs. 2,598 made in favour of Instep Loss Assessors Limited for assessment and re-inspection that ought to have been awarded by the court. 12.The appellant contended that they proved their case on a balance of probability and that the special damages were incurred and fully paid. 13.The appellant therefore urged this court to exercise its discretion and set aside judgement on quantum and award the entire sum of Kshs. 331,513 being special damages as pleaded. 14.This was an exparte appeal since the respondents did not enter appearance or file a defence. 15.The issues for determination in this appeal are as follows;i.Whether the trial magistrate erred in failing to award the full amount of special damages as pleaded and proved, andii.Whether the appellant discharged the burden of strictly proving the special damages. 16.Under the subrogation doctrine, the appellant's insurer, having compensated him for the loss, stepped into his shoes to pursue recovery from the respondents. 17.It is trite law that special damages must not only be specifically pleaded but also strictly proved. 18.However, the Courts have established that in material damage claims, a motor vehicle assessment report can constitute sufficient proof of the cost of repairs without necessarily requiring actual receipts for the repairs. 19.A motor vehicle assessor's report would provide acceptable evidence to prove the value of material damage to a motor vehicle. 20.In the instant case, the appellant pleaded special damages of Kshs. 331,513, which included the repair costs from Midland Auto Care Ltd as evidenced by an invoice of Kshs. 304,384 inclusive of VAT, assessment and re-inspection fees from Instep Loss Assessors Limited of Kshs. 7,145.60 and Kshs. 2,598 respectively, and tracing fees and copy of records. 21.The appellant produced an assessment report showing the extent of damage to his motor vehicle and the estimated repair costs, as well as photographs showing the vehicle before and after repairs. 22.He also produced a satisfaction note signed after his motor vehicle was repaired. 23.The trial court, however, only awarded Kshs. 14,470 for tracing fees and copy of records, and declined to award the repair costs and assessment fees on the ground that receipts were not produced. 24.This court finds that the trial magistrate erred in law by applying a very high standard of proof beyond what is required in civil cases. 25.Where an interlocutory judgment has been entered, the only remaining issue for the trial court is the assessment of quantum, and the court ought to evaluate the evidence presented on a balance of probabilities. 26.The trial court failed to appreciate that the assessment report from the loss assessor constituted expert evidence that sufficiently proved the material damage. 27.Furthermore, the appellant produced invoices for the assessment and re-inspection fees, and although the payment receipt attached was for investigators rather than the assessors, the court ought to have considered that invoices can serve as prima facie proof that a service was rendered, especially in the absence of any contradictory evidence from the respondents who did not participate in the proceedings. 28.Regarding the repair costs, it is notable that in this case the repairs were actually undertaken, the vehicle was repaired as confirmed by the re-inspection report, and a satisfaction note was signed. 29.The invoice from Midland Auto Care Ltd, coupled with the assessment report and the photographs, sufficiently demonstrates on a balance of probabilities that the loss was incurred. 30.Accordingly, this court finds that the appellant proved the following special damages to the required standard;i.The repair costs of Kshs. 304,384 as evidenced by the invoice from Midland Auto Care Ltd and the assessment report,ii.The assessment fee of Kshs. 7,145.60 andiii.Re-inspection fee of Kshs. 2,598 as evidenced by invoices from Instep Loss Assessors Limited, andiv.The tracing fees and copy of records of Kshs. 14,470 which the trial court correctly awarded. 31.The total awardable special damages therefore comes to Kshs. 328,597.60. 32.The judgment of the trial court is hereby set aside and substituted with judgment in favour of the appellant against the respondents jointly and severally in the sum of Kshs. 328,597.60 together with costs of the suit in the subordinate court and costs of this appeal, and interest on the special damages from the date of filing suit until payment in full. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 20TH DAY OF MAY, 2026.………….………………..A. N. ONGERIJUDGEDelivered in the absence of the parties.