https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8484

Ojweke & another v Otieno (Civil Appeal E012 of 2025) [2026] KEHC 8484 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8484 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E012 of 2025 JR Karanja, J June 9, 2026 Between Byrone Ongati Ojweke 1st Appellant Ray Otieno Ojweke 2nd Appellant and Anton Peter Otieno Respondent (Being an appeal from the judgment and/or decree of Hon. C. Chepkoech, Resident Magistrate delivered on 13th January, 2025 in Oyugis CMCC no. E182 of 2022) Judgment 1.At the Senior Principal Magistrate’s court at Oyugis, the two appellants, Byrone Ongati Ojweke and Ray Otieno Ojweke were sued alongside NCBA Bank of Kenya by the respondent, Anton Peter Otieno for loss and damages arising from a road traffic accident which occurred on the 25th September, 2022 along the Homa Bay/Kendu road at Oriang, involving the respondent/plaintiff’s motor vehicle reg. No. KCT 850P and a motor vehicle Reg. No. KDB 176C Fuso FJ Mitsubishi registered jointly in the names of the first appellant/third defendant and the NCBA Bank and driven at the time by the second appellant/first defendant. 2.In the plaint dated 4th October 2022, it was pleaded that on the material date the plaintiff’s motor vehicle was lawfully being driven along the road aforementioned when it was rammed from the back by the defendant’s motor vehicle as a result of the reckless, careless and/or negligent manner in which it was driven, managed and controlled, thereby causing extensive damage to the plaintiff’s motor vehicle. 3.The plaintiff blamed the second appellant/first defendant for the accident and instituted this suit against him and the other two defendants claiming against them special damages in the total sum of kshs.490,872/ and loss of user at the rate of kshs.10,000 per day while holding the second defendant and the third defendant/first appellant vicariously liable for the accident. He prayed for judgment accordingly. 4.Summary judgment in default of appearance was initially entered against the two appellants on the 6th December, 2022, but this was set aside by consent and the appellants were granted leave to file their defence dated 31st August 2023 in which they denied the claim against them and contended that it was the respondent/plaintiff’s vehicle which was recklessly and/or carelessly driven such that it lost control, veered off the road and rammed and/or ploughed into the their motor vehicle which was parked off the road. In essence, the appellants blamed the respondent for the accident and prayed for the dismissal of his suit against them with costs. 5.After a full hearing of the suit, the trial court rendered its judgment on 13th January 2025, finding in favour of the plaintiffs/respondent at full liability against the defendants/appellants and awarded general damages in the sum of kshs.1,080,000/- and special damages in the sum of kshs.319,250/- together with costs and interest. 6.Being aggrieved, the two appellants preferred the present appeal on the basis of the ground set out in the memorandum of appeal dated 7th February 2025. It is an appeal on both liability and quantum of damages and was canvassed by way of written submissions which were filed herein by the appellants through Messrs. O.M. & Co. Advocates and by the respondent through Messrs. Onyango Jonyo & Co. Advocates. 7.After due consideration of the appeal, the supporting grounds and those in opposition thereto as well as the rival submissions, the duty of this court was to revisit the evidence and draw its own conclusion bearing in mind that the trial court had the benefit of seeing and hearing the witnesses. 8.In that regard, the plaintiff/respondent, Anton Peter Wachiaji Otieno (PW1) testified and indicated that his ill-fated motor vehicle Reg. No. KCT 850P was a public service vehicle (Matatu) when it was involved in the material accident while being driven by his driver, John Odhiambo (PW2). He (PW1) was not present at the scene of the accident when it happened. His driver (PW2) blamed the appellant’s driver for the accident. 9.The second appellant, Ray Otieno Oweke (DW1) indicated that he ws in control on the driver of their motor vehicle Reg. No. KDB 176C when the accident occurred. He confirmed that the vehicle was registered in the name of his brother cum employer, the first appellant and the NCBA Bank(Kenya) (second defendant). He indicated that the respondent’s motor vehicle was picking passengers along the road when his vehicle rammed into its back. 10.Both drivers (PW2 and DW1) indicated that both vehicles were for use in transport business of carrying paying passengers and goods respectively from destination to destination and that both drivers were in the course of their employment when the accident happened.Basically, the occurrence of the accident and the ownership of the two ill fated motor vehicles were factors which remained largely undisputed. This was a clear explanation as to why the first appellant and by extension the NCBA Bank (Kenya) (2nd defendant) were enjoined in this suit. 11.The pleadings and the evidence clearly suggested that the issues which arose for determination by the trial court and indeed this court were two fold i.e the question of culpability or liability and the question of damages and the extent thereof.Significantly, the claim was essentially for material damage and loss of user occasioned by the material accident pitting the appellants and the respondents. 12.On the question of liability, it was not at all or substantially disputed that the respondent/petitioners motor vehicle was hit from behind by the appellant/defendants motor vehicle. Indeed, this fact was confirmed by the respondent’s driver (PW2) and admitted by the first appellant’s driver (DW1) (2nd appellant) who stated that he actually rammed into the back of the respondent’s motor vehicle thereby implying that his vehicle was following the respondent’s vehicle from behind. 13.That, the respondent’s vehicle was hit from behind by that of the appellant was a pointer to the negligent and reckless manner in which the appellant’s vehicle was driven. This was a clear indication that the second appellant driver failed to exercise proper lookout for other road users or failed to keep safe distance or was outrightly reckless in the manner of his driving. Although he appeared to suggest that the respondent’s vehicle was slightly off the road picking passengers or otherwise before it suddenly or abruptly re-entered the road thereby causing the accident, he did not produce any evidence to establish as much. 14.He (DW1) did not rebut the contention by the respondent’s driver (PW2) that he (2nd Appellant) failed to keep safe distance and was driving recklessly at a fast speed.For all the reasons foregoing, this court would find just like the trial court did that the appellants were fully culpable for the accident. There was no fault attributed to the respondent’s driver hence no reason for apportionment of liability. 15.On the question of loss and damages and quantum thereof, the plaintiff/respondent claimed special damages as follows:1.Towing fees ksh.20,000/-2.Repair costs (inclusive of VATT) ksh.463,0723.Motor vehicle search ksh.550/-4.Assessment fees kshs.7,300/-Total KSH.490,872/-Loss of user was claimed under paragraph 11 of the plaint at the rate of kshs.10,000/- per day from the date of the accident to the date when the respondent’s matatu vehicle was expected back for business.16 With regard to special damages, they denote the actual pecuniary loss arising out of the circumstances of each particular case and are normally claimed together with the general damages implied by the law in claims of personal injuries. It is trite law that such special damages must be specifically pleaded and strictly proved. Herein, the trial court found that the actual amount proved by necessary documentary evidence was the sum of kshs.319,250/- being payments for motor vehicle search, assessment, towing and repairs. Indeed, this is the amount which was strictly proved by the evidence tendered herein and is hereby sustained. 17.With regard to loss of user, the law thereon is now well settled. Such claims are meant to compensate the owner of the vehicle for financial loss suffered when the vehicle is rendered unusable due to material damages from an accident. This allows the owner to recover lost profits while the vehicle is under going repairs. Such is the loss of user and is in the nature of general damages requiring proof on a balance of probabilities. 18.In Silas Mutua Mberia Vs Muthoni Njue Veronica 2021eKLR, It was stated that:-Its thus clear that the appellant only needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that the repairs were actually done and paid for. It must always be remembered that the balance of proof on the appellant was always on a balance of probability and not higher.The claim by the appellant was not for an expense already incurred but a claim to restore the damaged motor vehicle to its pre-accident state. The value of the damage was assessed and a report produced in evidence. The appellant was not legally required or obligated to specifically prove the claim by production of receipts”. 19.The threshold for loss of user award falls within general damages as was demonstrated in this case of Samuel Kariuki Nyangoti Vs Johaan Distelberger (2017)eKLR which was cited in the impugned judgement and where it was held by the court of Appeal that:-The appellant claimed both special and general damages. The special damages which did not include loss of user were particularized ………………. The damages claimed by the appellant were in the nature of pecuniary loss which the law does not presume to be the direct natural or probable consequences of the accident since it is subject of ascertainment by court through evidence and the application of the law relating to the measure of damages.In personal Injury cases, the loss of business profit and loss of future earning capacity are usually in the nature of general damages. The loss of use of a profit making chattel such as a lorry or matatu through an accident is similarly a claim in general damages. The standard of proof in such claims is on balance of probabilities and the principle of restitution in integrum is applied in such cases”.(see also Real People(k) Ltd Vs Gachanja & another (2026)KEHC 334KLR, MacMaster Ltd Vs Onesmus Mutuku Muia (2018)eKLR and Jackson Molabili Vs Peterson Mateli (2020)eKLR). 20.The award of loss of user made by the trial court at the rate of kshs.6,000 per day for a period of six(6) months i.e kshs.1,080,000 was in the opinion of this court rather excessive for want of proof that the earnings from the vehicle amounted to kshs.10,000/- per day or even kshs.6000 per day and that it took a period of about six (6) months for the vehicle to be fully repaired and be back on the road. In the circumstances, the opinion of this court is that a sum of ksh.3,000/- would be reasonable as daily loss of profit/earnings for a reasonable period of three (3) months. He respondent/plaintiff was thus entitled to loss of user in the sum of kshs.270,000/- rather than kshs.1,080,000/- which amount is hereby overruled, set aside and substituted for the sum of ksh.270,000/-. 21.In sum, other than the alteration of the award made by the trial court for loss of user, this appeal is largely disallowed to the extent that the appellant’s liability at 100% was well founded and proved and so was the respondent’s claim for special damages in the sum of ksh.319,250/-. So, the trial court’s judgement awarding the respondent a total sum of ksh.1,399,250 is hereby set aside. Instead, judgement be and is hereby entered against the appellants in favour of the respondent. In the total sum of ksh.589,250, together with costs of the suit and interest. Otherwise, the parties shall bear their own costs of the appeal.Ordered accordingly. DELIVERED, DATED THIS 9TH DAY OF JUNE, 2026 ____________________________ HON. J.R. KARANJAHJUDGE