https://new.kenyalaw.org/akn/ke/judgment/scc/2026/67

Nyadero v Kuswat (Commercial Case E002 of 2026) [2026] SCC 67 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] SCC 67 (KLR) Republic of Kenya In the Small Claims Court at Lamu Commercial Case E002 of 2026 FM Mulama, RM June 24, 2026 Between Boniface Okello Nyadero Claimant and Mohamed Shee Kuswat Respondent Judgment Introduction 1.This claim is for Kshs.28,000/= which according to the claimant arose when on 6/4/2026 while travelling from Lamu to Mokowe boarded the respondent’s boat with his 55 inch television make Hisense. 2.That after the boat was full and set to leave for Mokowe, the respondent who was in charge of the boat reversed the boat in such a manner that a protruding pipe from another boat hit the television set after the passenger who was sitting next to it bent down to avoid hitting his head and this is despite the claimant warning the respondent that the space was small and given the fact that he was carrying the said Television set it would not be possible but the respondent could not hear any of that . 3.They none the less left for Mokowe on the understanding that upon arrival both parties would inspect to ensure that the tv was not damaged in any way. Upon arrival, the claimant opened the box and upon checking the screen, it was confirmed by both parties that the screen was broken. 4.The respondent denied being responsible stating that the screen had been previously damaged and an agreement was reached that the same be taken to a technician for his technical evaluation and the said technician upon examining the said television confirmed that it was a recent crack on the screen and advised that a new screen would cost Kshs.28,000/= and transport costs of Kshs.7,000/=. The respondent still denied liability and the 2 ended up at the police station where statement were recorded. 5.The respondent in his response to claim does not expressly deny the accident but rather asserts that he was not negligent in any way and that it was the responsibility of the claimant to take care of his television set. 6.The matter proceeded by oral evidence and I have duly considered these testimonies in this judgment. Issue For Determination.a)Whether the claim is meritoriousb)Who bears costs of the claim. Analysis And Determination. a) Whether the claim is meritorious. 7.The fact that the accident occurred on that particular date is not in dispute. The bone of contention is who is to be blamed for the accident. The claimant asserts that it is the respondent to be blamed for the damage and on the other hand the respondent asserts that it is the claimant to be blamed as it was his responsibility to look after his television. 8.In as much as I agree with the respondent that it is the duty of the claimant to take care of his property, that duty and/responsibility shifts to the respondent as and when the respondent allows the claimant to board the boat for transport at a consideration which in this case is fare. 9.The claimant boarded the boat as a fare paying passenger and further as they were leaving for their destination, the respondent who was in charge of the boat while reversing ignored the warning given to him and relied on his expertise despite the warnings and infact one passenger had to bend down to avoid being hit by another boat and consequently the tv was also hit. 10.The respondent who was in charge of the boat therefore owed the claimant a duty of care to ensure that him, his parcel and other passengers arrived at their destinations safely and in return the claimant was to pay fare. It is therefore not in place of the respondent to say that it was the responsibility of the claimant to look after his television in the circumstances. Had he listened to the warnings sent to him the accident wouldn’t have occurred but he ignored for reasons best known to him. 11.It was incumbent upon the respondent to remember that boats are open sea vessels and that extra caution has to be maintained to avoid accidents such as the one the claimant suffered and which would have been worse had the other passenger not have been keen and alert. 12.I would do no better in the circumstances than quote the case of Bonface Waiti and Another v Michael Kariuki Kamau NRB HCCA No. 705 of 2003 [2007]eKLR where the court observed as follows;It is now trite law that passengers have no control over the manner of driving of a vehicle in which they are conveyed and cannot be penalized for the poor workmanship of the control of the vehicle. The explanation on causation of the accident in such circumstances lies with the driver …. 13.No explanation was forthcoming from the respondent as to how the accident occurred as he was in sole control of the boat and in the circumstances, I have no option but to infer and/or draw the necessary and inevitable inference that the respondent drove and/or rode the boat negligently leading to the accident and/or damage complained off. The claimant had no control whatsoever of how the respondent controlled the vessel infact his warnings fell on deaf ears of the respondent. 14.It is therefore the finding of the court that the respondent owed a duty of care to the claimant and for his negligent acts, caused the accident and/or damage complained off. He is consequently wholly liable for the accident. 15.As a result of the accident, damage was caused to the claimant in the sense that the screen of his television broke and from his testimony and on the advice of the technician, it would cost Kshs.28,000/= to repair the same. This advice was given to both of them and the respondent has not denied and/or challenged the said figure in any way. In the circumstances the claimant is thus entitled to that sum as pleaded for in the claim. a. Who bears costs of the claim? 16.Given that costs follow event and it is evident that the claim is one for allowing the claimant is awarded costs. Having acted in person, costs shall be limited to disbursements and attendances only. Conclusion And Disposition. 17.The upshot of the foregoing I make the following final orders;a)The claim contained in the statement of claim dated 5th May 2026 is allowed in the sum of Kshs.28,000/=.b)The claimant is awarded costs of the claim as well as interest on the said sum from the date of filing until payment in full.c)Let the file be closed forthwith. 18.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU SMALL CLAIMS COURT THIS 24th DAY OF June…2026.F.M. MULAMAADJUDICATOR/RMIn the presence of:Court Assistant:- Abuswaleh.Boniface Nyadero Okello-Virtually.Mohamed Shee Kuswat-Physically