https://new.kenyalaw.org/akn/ke/judgment/scc/2026/46

Nyaga v Kibuko (Commercial Case E99939 of 2025) [2026] SCC 46 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] SCC 46 (KLR) Republic of Kenya In the Milimani Small Claims Court Commercial Case E99939 of 2025 GW Kiamah, RM June 29, 2026 Between Paul Maina Nyaga Claimant and Philemon Kibuko Respondent Judgment 1.The claimant instituted this suit via a statement of claim dated 5/9/2025 seeking judgment against the claimant for Kshs. 247,000.00/= on the basis that the parties agreed that the respondent would offer transport for delivery of watermelons from Sirare to Nairobi using his motor vehicle KDR 226W but the respondent failed to deliver 5 tonnes of the watermelons, and 2 tonnes were rejected on arrival as the same were ruined in the cause of transportation. That claimant thus demanded Kshs. 247,000/= which remained unpaid. 2.The respondents filed a response dated 15/9/2025 amended by that dated 5/12/2025 and denied owing any money. It was averred that the parties were not in any binding agreement and he never received any payment. That delivery of the watermelons was frustrated by an accident involving the subject vehicle, an event that was beyond his control and could not amount to breach of contract. 3.The matter proceeded under Section 30 of the Small Claims Act and the claimant filed submissions dated 27/1/2026 whereas the respondent’s were dated 28/1/2026. 4.I have seen and considered the pleadings, testimonies, evidence and submissions before court. The main issue for determination is whether the claimant has proven the claim of Kshs. 247,000/= as against the respondent. 5.The standard of proof in civil claims is on a balance of probabilities. See the Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR. 6.Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. 7.From the pleadings on record, I do note that there was sufficient evidence proving that the respondent was indeed transporting the claimant’s watermelons when the subject vehicle got involved in an accident on 14/8/2025. As per RW2 statement one Peter Aloys Odako, he confirmed that he was the driver of the subject vehicle on the material day when the accident occurred and the watermelons were damaged after spilling on the road. 8.The respondent also confirmed vide his first undated statement that there was a brokerage agreement for such transport/delivery services but the same did not establish any liabilities. That after the accident, the salvageable goods were recovered and delivered to the designated marked as per the claimant’s instructions. 9.Though the respondent later amended the statement to deny ever entering the transportation agreement, the respondent’s own documents and witness statements were contradictory to such denial noting that the respondent produced documents and photographs confirming that the accident occurred as alleged in the cause of transporting the watermelons. 10.There was the police abstract confirming occurrence and reporting of the accident. Further, the respondent produced photographic evidence shows that the subject lorry had overturned and watermelons had spilled. The claimant’s evidence also point towards some payments paid to the driver, and the claim for the damages watermelons was communicated to the respondent. As such, I do find that there was an oral contract for transportation between the parties. 11.As to whether the claimant was able to establish breach of contract, I do note that the goods were in the respondent’s custody for purposes of transportation when the accident occurred. RW2, the driver, stated that he was driving at night when a bus overtook him from behind and abruptly veered into his lane causing him to swerve left to avoid the collision. That the subject vehicle thus rolled into a valley and overturned. 12.It is trite that in contracts of carriage, a transporter may avoid liability if he demonstrates that loss occurred due to an inevitable accident or act beyond his control, and without negligence. I do find that the driver’s account was consistent and plausible noting that the same was caused by a third-party driver, and there was action taken to avoid the accident by swerving. As per the abstract, the case was referred to insurance and notably, the driver was not blamed for causing the accident. I do find that the accident was likely inevitable and not attributable to the respondent’s fault. 13.Even assuming liability, the claimant was still required to strictly prove the claimed sum of Kshs. 247,000/=noting that the same was in the nature of special damages. From the record, the claimant failed to quantify how he had arrived at the claimed figure of Kshs. 247,000/=. It was not clear the total amount charged for the transport services, and neither did the claimant proof how much had been paid in total to the respondent. The claimant failed to establish how much was charged per tonne, and the total delivered tonnes, to enable this court assess the value for the undelivered tones. 14.In essence, the claimant failed to provide evidence of price per tonne of the watermelons, proof of total quantity transported and delivered, receipts, invoices, or market valuations, or a clear computation of the claimed figure. A such, this Court was unable to ascertain how the sum claimed was arrived at. 15.The test to be applied in an award of special damages is clearly articulated in the cases of Mariam Maghema Ali v Jackson M. Nyambu T/A Sisera Store Civil Appeal No. 5 of 1990 and Idi Ayub Shaban v City Council of Nairobi 1982 – 1988 IKAR 681 which laid down the principle that special damages in addition to being pleaded must be strictly proved. I find that the claimant failed to prove the claim for special damages. 16.The upshot is that the claimant did not prove the claim to the required standard and the same is hereby dismissed. 17.The respondent is awarded costs of the claim assessed at Kshs. 15,000/= payable after thirty (30) days hereof. The said period shall operate as stay of execution.It is so decreed. DATED AND DELIVERED AT NAIROBI VIA CTS THIS 29TH DAY OF JUNE 2026HON. GLADYS .W. KIAMAHRESIDENT MAGISTRATE/ADJUDICATOR