https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8858

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA APPEAL NO. E313 OF 2025** **PENTACOM GROUP LIMITED………………..….1ST APPELLANT** **JOSHUA KIMINGICHI………………………………2ND APPELLANT** **VERSUS** **FREDRICK MWAI MWIHIA……………………..1ST RESPONDENT** **PACIS INSURANCE CO. LIMITED…………….2ND RESPONDENT** *(Being an Appeal from the Judgement of Hon. L.A MUMASSABA (PM) in MILIMANI CMCC No. 6218 of 2019 delivered on 26/02/2025)* **JUDGMENT** 1. The cause of action arose from a road traffic accident that allegedly occurred on or about August 25, 2016, along Murang’a Road in Nairobi. 2. The respondents, who were the original plaintiffs, filed suit against the appellants, who were the original first and second defendants, claiming special damages of Kshs. 106,357.00, plus costs and interest. 3. The respondents brought the suit under the doctrine of subrogation, as their insurer, ICEA Lion, had fully indemnified them for the loss suffered to their motor vehicle, KBX 855A, which was involved in an accident with the appellants’ motor vehicle, KBR 086D. 4. In its judgment delivered on February 26, 2025, the trial court, first addressed the issue of liability. 5. The court noted that on November 13, 2024, the parties had recorded a consent judgment on liability in the ratio of 80:20 in favour of the respondents against the appellants, meaning the respondents conceded 20 percent contributory negligence. 6. Regarding the quantum of damages, the trial court found that the respondents had proved their claim for special damages. 7. The court awarded Kshs. 9,280.00 for the assessment and reassessment report, Kshs. 75,527.00 for repair costs, Kshs. 21,000.00 for loss of use, and Kshs. 550.00 for a copy of records. 8. The court then calculated the final award by taking the total proved special damages of Kshs. 106,357.00 and subtracting the 20 percent liability for contributory negligence, which amounted to Kshs. 21,271.40, resulting in a total award of Kshs. 85,085.60. 9. The trial court entered judgment for the respondents against the appellants jointly and severally for this sum. 10. On the issue of costs, the court ruled that the suit against the third party was withdrawn, with costs to the third party to be borne by the appellants. 11. Finally, the court awarded the respondents costs and interest from the date of filing the suit until payment in full and granted a 30-day right of appeal. 12. The appellants have appealed to this court against the said judgment on the following grounds; 13. *THAT the Learned trial magistrate erred in law and in fact by finding that the 1st Respondent had proved his case on a balance of probabilities notwithstanding his failure to produce any document he had filed in his list of documents dated 15th August, 2019 as required by law.* 14. *THAT the Learned trial magistrate erred in law and fact by disregarding the hallowed legal principle that special damages must not only be pleaded but must also be specifically proved.* 15. *THAT the Learned trial magistrate erred in law and in fact by failing to consider and decide on all the issues raised by the Appellants as required by express provisions of the Civil Procedure Rules.* 16. *THAT the Learned trial magistrate failed to exercise her discretion properly by awarding the 2nd Respondent costs as against the Appellants notwithstanding her Ruling of 8th May, 2024 in which she found that the 2nd Respondent had insured the 1st Appellant's motor vehicle and was thus properly joined in the suit.* 17. *THAT the learned trial magistrate erred in law and in fact in failing to consider at all the Appellants submission and the authorities and in so doing arrived at an erroneous decision.* 18. The parties filed written submissions as follows; 19. The appellants challenge a judgment delivered on 26th February 2025 by the trial magistrate in Milimani CMCC No. 6218 of 2019. 20. The 1st respondent had claimed special damages of Kshs 106,357 arising from a motor vehicle accident that occurred on 25th August 2016. 21. Although a consent on liability was reached, no hearing took place, and the parties did not agree to produce any documents by consent. 22. The 1st respondent failed to formally produce or tender as exhibits the documents contained in his list of documents dated 15th August 2019. 23. Under Sections 107, 108, and 109 of the Evidence Act, the burden of proof lies on the person who asserts a fact, and the 1st respondent did not discharge that burden. 24. Relying on case law such as **Robert Ngande Kathathi v Francis Kivuva Kitonde, Kenneth Nyaga Mwige v Austin Kiguta & 2 others, and Finmax Community Based Group v Kericho Technical Institute**, mere filing or marking of documents for identification does not make them evidence; documents must be formally produced and proved as exhibits. 25. Since no documents were produced by consent or otherwise, there was no evidence before the trial court to prove the injuries or loss allegedly suffered by the 1st respondent. 26. The appellants also argue that the trial magistrate failed to determine all the issues raised, particularly their submission that the 1st respondent’s suit ought to have been dismissed for lack of proof. 27. The appellants challenge the award of costs to the 2nd respondent (the insurance company) against the appellants, arguing that costs should follow the event and the 1st respondent, having failed to prove his case, should bear any costs. 28. Under Order 1 Rule 23 of the Civil Procedure Rules, the court has wide discretion on costs, but in this case, the insurer had a valid policy covering the accident yet abandoned the insured. 29. The trial magistrate’s order that the appellants pay the 2nd respondent’s costs is punishing to the insured, especially since the insurer was bound under the policy to settle the decretal sum if the risk attached. 30. The appellants pray that the appeal be allowed, the 1st respondent’s suit in the lower court be dismissed with costs, and that the lower court’s judgment is erroneous on all five grounds raised in their memorandum of appeal. 31. The respondent submitted that the trial magistrate did not err in finding that the respondent had proved his case on a balance of probabilities. 32. The parties had already recorded a consent judgment on liability, with the appellant accepting 80% blame and the respondent 20% blame. 33. The respondent contends that it is erroneous for the appellant to challenge the trial court’s findings on liability when the consent was voluntarily entered into by the parties. 34. The claim was for material loss arising from extensive damage to the respondent’s motor vehicle caused by the appellant’s vehicle. 35. All documents necessary to prove the claim of Kshs 106,357 were filed in court and served upon the appellant. 36. The parties later agreed to file submissions on quantum after negotiations failed. 37. The appellant’s main objection is that the documents were not formally produced or adopted in court because the respondent’s counsel did not request formal admission. 38. The respondent concedes that his counsel omitted to make that request but argues that this is a mere technicality. 39. The appellant never challenged the authenticity or relevance of the documents, and both parties relied on them when making submissions on quantum. 40. The respondent invokes Article 159(2)(d) of the Constitution of Kenya, which requires courts to administer justice without undue regard to procedural technicalities. 41. The respondent relies on several authorities to support the position that courts should avoid hyper-technical evidentiary traps, especially in lower court contexts. 42. The trial magistrate correctly exercised his discretion in awarding the full liquidated amount less the agreed contributory negligence. 43. An appellate court should not disturb an award of damages unless it is shown that the trial court proceeded on wrong principles or misapprehended the evidence. 44. The respondent cites the principle from Peter Okello Amondi v Clement Ochieng that an appellate court will not disturb an award of damages unless it is inordinately high or low or based on wrong principles. 45. The failure to formally request adoption of the documents was an honest mistake by the respondent’s advocate, not a deliberate act. 46. The respondent, as an innocent litigant, should not be punished for his lawyer’s error. 47. The respondent relies on Belinda Murai & 9 others v Amos Wainaina and Tovett v Kibaruk for the proposition that mistakes of counsel should not be visited upon a diligent litigant. 48. The door of justice is not closed merely because a blunder has been made, even by experienced counsel. 49. The appellant, having admitted 80% liability, will not suffer any prejudice if the judgment is upheld. 50. The respondent prays that the appeal be dismissed, the magistrate’s judgment upheld, and costs of the appeal awarded to the respondent. 51. The 2nd Respondent (Pacis Insurance Company Limited) was unnecessarily dragged into the appeal by the Appellants without any valid cause of action. 52. The Appellants joined the 2nd Respondent based on an allegation that the insurance company should pay the decretal amount from a road traffic accident that occurred on 25th August 2016. 53. The accident involved motor vehicles KBX 855A and KBR 086D along Muranga Road in Nairobi. 54. The 2nd Respondent had filed an application to be struck out from the proceedings, but that application was disallowed. 55. The 2nd Respondent then prepared for the hearing by filing a witness statement and a list of documents. 56. On 13th November 2024, the Appellant and the 1st Respondent recorded a consent on liability at an 80/20 ratio, with the Appellants conceding 80% and the 1st Respondent 20%. 57. Consequently, the 2nd Respondent had no role to play, having been unnecessarily enjoined by the Appellants. 58. The 2nd Respondent prayed for costs, and the trial court allowed their Advocate to file submissions on costs. 59. In the judgment delivered on 26th February 2025, the court ordered that the third party’s costs be borne by the Defendants (now the Appellants). 60. The 2nd Respondent submits that it has no role to play in the appeal and urges the court to dismiss the appeal with costs to the 2nd Respondent. 61. The issues for determination in this appeal are as follows; 62. **Whether the trial magistrate erred by awarding special damages without formal production of documents, and** 63. **Whether the orders on costs against the appellants were justified.** 64. The parties had already recorded a consent judgment on liability on November 13, 2024, admitting the accident and apportioning liability at 80:20, which removed the need for a full evidentiary hearing on the occurrence of the accident. 65. The appellants fully participated in the proceedings on quantum, filed submissions, and never objected to the authenticity of the documents during the trial. 66. The failure to formally request the court to mark documents as exhibits is a procedural technicality. 67. Under Article 159(2)(d) of the Constitution of Kenya, courts are mandated to administer justice without undue regard to procedural technicalities. 68. Since the appellants had conceded liability and the documents were served upon them without objection, no prejudice was suffered. 69. Regarding costs to the 2nd respondent (Pacis Insurance), the trial court acted within its discretion under Order 1 Rule 23 of the Civil Procedure Rules. 70. The 2nd respondent was enjoined in the suit by the appellants but had no role after the consent on liability was recorded; the trial magistrate correctly ordered that the third party’s costs be borne by the appellants. 71. The appeal fails because special damages, though requiring strict proof, were sufficiently proved in the circumstances. 72. Consequently, the appeal is dismissed in its entirety, and the judgment of the trial magistrate delivered on February 26, 2025, is upheld with costs to the respondents. 73. Orders to issue accordingly. **Judgment Dated, Signed and Delivered Virtually at Nairobi this 10th day of June, 2026.** **ASENATH ONGERI** **JUDGE** ***Delivered in the presence of:-*** Mr. Ochieng holding brief for Mr. Ongato Miss Nyebugo for 2nd Respondent Miss Ondieki for the 1st Respondent