Kimeto v Kitale Industries Ltd (Civil Case E143 of 2025) [2026] KEMC 749 (KLR) (16 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E143 OF 2025** **REBECCA KIMETO.……....….………………………………………………....................PLAINTIFF** **VERSUS** **KITALE INDUSTRIES LIMITED………...……………….…………..………….DEFENDANT** **JUDGMENT** 1. The Plaintiff moved this court through a further further amended Plaint dated 09th July 2025, praying for judgment against the Defendant for: 2. *Special damages Kshs. 1,363,575/=* 3. *Costs of the suit* 4. *Interest on (a) and (b) above* 5. *Any further or other relief that this Honourable court may deem fit to grant* 6. The Plaintiff pleaded that the cause of action herein arose on 10th June 2024 when his motor vehicle registration number KDN 474 E (‘the Plaintiff’s motor vehicle’) was being driven along Bungoma – Kanduyi road only for it to be extensively damaged by the Defendant’s motor vehicle registration number KAV 860 V (‘the Defendant’s motor vehicle’) which was reportedly being negligently and recklessly being driven by its authorized driver. 7. It was also averred by the Plaintiff that the accident herein was solely caused by the Defendant and their driver’s negligent acts and omissions pleaded in paragraph 5 of the further further amended Plaint. 8. Further, the Plaintiff averred that her motor vehicle had been insured by Africa Merchant Assurance Company Limited (‘the insurer’) at the time of the accident under an insurance policy number AM10701210317202309, and that the insurer had made good his loss by expending Kshs. 1,363,575/= in repair costs and motor vehicle search, thereby necessitating the filing of this subrogation claim. 9. The Plaintiff urged this court to enter judgment against the Defendant as prayed in the further further amended Plaint. 10. The Defendant entered appearance and filed a Statement of Defence dated 17th July 2025 denying the occurrence of the accident herein and the particulars of negligence attributed to them and their driver by the Plaintiff. The Defendant pleaded in the alternative that if the accident herein occurred then the same was wholly or substantially caused by the Plaintiff’s negligent acts or omissions set out in paragraph 4 of the Statement of Defence herein. 11. In the circumstances, the Defendant prayed that the Plaintiff’s case be dismissed with costs. 12. The Plaintiff responded to the Defendant’s Statement of Defence through a Reply to the Defendant’s Statement of Defence dated 23rd July 2025 reiterating the averments in his further further amended Plaint herein. The Plaintiff prayed that the Defendant’s Statement of Defence herein be struck out and judgment be entered against the Defendant as prayed in the further further amended Plaint herein. 13. Given the divergent positions taken by the parties herein regarding this case, this matter was set down for hearing for the parties to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 No. 76835 PC Isaac Kimani Njuguna** of Bungoma Traffic Base produced a police abstract dated 04th June 2024 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 04/01/06/2024 as an exhibit. He stated that the Defendant’s motor vehicle was blamed for the occurrence of the accident. 2. He conceded in cross-examination that he neither visited the scene of the accident nor investigated the circumstances under which the accident herein. He could not tell the accident’s point of impact. 3. He also conceded that no one had been charged in a traffic case arising from the accident herein. 4. **PW2 Joseph Muchangi Nyaga** an internal motor vehicle assessor at the insurer produced the Plaintiff’s motor vehicle inspection report dated 19th June 2024 showing that the Plaintiff’s motor vehicle was to be repaired at a cost of Kshs. 1,363,015/=. He also produced the Plaintiff’s motor vehicle reinspection report dated 10th August 2024 showing that the said motor vehicle had been repaired to satisfaction. 5. He stated in cross-examination that the spare parts used to repair the Plaintiff’s motor vehicle were imported since the said spare parts could not be sourced from the open market given that the Plaintiff’s motor vehicle was a rare motor vehicle model having been manufactured in 2023. 6. **PW3 Robert Langat** a Claims Officer at the insurer adopted his witness statement on record as his evidence in chief. 7. His testimony was that the Plaintiff’s motor vehicle was at the time of the accident insured by the insurer via an insurance policy number AM10701210317202309 and that the insurer made good the Plaintiff’s loss by expending Kshs. 1,363,575/= towards repairing the Plaintiff’s motor vehicle. 8. He produced the motor vehicle insurance claim form dated 06th June 2024, proof of payment dated 28th June 2024 for Kshs. 669,758/=, proof of payment dated 13th August 2024, for Kshs. 669,757/= and a payment requisition voucher as exhibits 9. **PW4 Bonface Enock Wawire Kokonya** adopted his witness statement herein as his evidence in chief. He recalled that he was driving the Plaintiff’s motor vehicle on the date of the accident along Bungoma – Kanduyi road only to be stopped at a roundabout by police officers who were controlling traffic arising from the Madaraka day national celebrations held in Bungoma. He added that he had stopped the motor vehicle in the left lane while the Defendant’s motor vehicle had been stopped slightly ahead of him in the other lane; right hand side/inner lane as one faces Kanduyi general direction. 10. He further stated that when police officers signaled the motor vehicles which had been stopped to drive off, the Defendant’s driver turned left and cornered thereby causing the Defendant’s motor vehicle’s rear side to damage the Plaintiff’s stationary motor vehicle. He produced his driving licence as an exhibit. 11. In cross-examination, he reiterated that the Defendant’s motor vehicle damaged the Plaintiff’s motor vehicle’s front right fender. He added that the accident occurred because the Defendant’s driver decided to turn left without signaling, and that he hooted to alert the Defendant’s driver about the accident, but the Defendant’s driver failed to stop in time to prevent the occurrence of the accident. He reiterated that the accident occurred when the Plaintiff’s motor vehicle was stationary. **Defendant’s Case** 1. **DW1 Hakimi Ahmed Mohammed** adopted his witness statement dated 16th September 2025 as his evidence in chief. He produced his driving licence, his copy of national identification card, and the Defendant motor vehicle’s certificate of examination and test dated 06th June 2024 as exhibits. 2. He admitted that he was driving the Defendant’s motor vehicle on the date of the accident. He took the position that the accident occurred when the Plaintiff’s motor vehicle rammed into the Defendant’s motor vehicle from behind when the said motor vehicles were being driven towards the same direction in the left side outermost lane. 3. In cross-examination, he denied turning suddenly to the left thereby leading to the occurrence of the accident. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, and the written submissions filed by the parties herein. 2. The instant suit is a subrogation claim. The doctrine of subrogation was defined in **Egypt Air Corporation v Suffish International Food Processors (U) Ltd and Another [1999] 1 EA 69** as hereunder- *“The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity and gains its operative force from payment under that contract; the essence of the matter is that*subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. *If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.” (emphasis added).* 1. Still on what a subrogation claim entails, the court in **Opiss vs Lion of Kenya Insurance Company Civil Appeal No 185 of 1991** stated that- *“The right to subrogate does not create a privity of contract between the insurance company and the third party; it only gives the insurance company the right to take over the rights and privileges of the insured and therefore must be brought in the name of the insured.” From the foregoing there appears to be three issues for consideration in this subrogation claim: whether there was a binding and operative contract of indemnity between the Respondent and the Insurance company in the first instance; whether the insurance company made payment to the claimant pursuant to the original indemnity contract to which they now seek reimbursement; and whether the Respondent is entitled to the sum awarded by the Trial court.”* 1. Lastly, in **Kenya Power & Lighting Company Limited vs Julius Wambale & Another [2019] eKLR**, the court set the conditions whereupon the doctrine of subrogation can be invoked as follows: *“The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party.”* 1. The common thread running through the authorities above is that for a suit brought under the doctrine of subrogation to succeed, the Plaintiff must prove on a balance of probabilities that after their insured motor vehicle was damaged in an accident or an insured risk attaching, their insurer made good their loss, and that the accident or the risk which gave rise to his loss was caused by a third party (“the Defendant”) who ought to indemnify the Plaintiff’s insurer. 2. Having fully appreciated the ingredients of the claim under the doctrine of subrogation, this court will proceed to determine whether the Plaintiff proved their case on a balance of probabilities. 3. There is no dispute that the accident herein occurred. It is also common ground that the accident herein caused damage to the Plaintiff’s motor vehicle. Further, there is no dispute that the Plaintiff’s motor vehicle was repaired after the accident herein and that the Plaintiff’s motor vehicle had been insured by the insurer at the time of the accident. 4. In addition to the above, nothing on record suggests that the drivers of the motor vehicles herein (PW4 and DW1) lacked the said motor vehicles’ owners’ authority to drive the said motor vehicles when the accident herein occurred. It thus follows that in the event either or both drivers are found liable for the accident herein, the Plaintiff and the Defendant will be vicariously liable for their respective drivers' negligent acts or omissions. 5. Given the foregoing, it is this court’s considered view that the issues for determination are whether the Defendant was to blame for the accident, and if so, whether the insurer paid the sum of Kshs. 1,363,575/= in making good the Plaintiff’s loss, which sum the Defendant ought to indemnify the insurer. Simply put, the issues for determination are liability and quantum. **Liability** 1. The Plaintiff’s case was that the accident herein occurred when the Defendant’s motor vehicle suddenly turned left without due care and attention, causing the said motor vehicle’s rear fender/grill to damage the Plaintiff’s motor vehicle’s right-hand side fender at the time when the said Plaintiff’s motor vehicle was stationary. 2. On the Defendant’s part, they maintained that the accident occurred when the Plaintiff’s motor vehicle rammed into their motor vehicle from behind as the two motor vehicles were being driven in the left outermost lane along Bungoma – Kanduyi road while facing Kanduyi general direction. 3. The Plaintiff submitted that the evidence on record was clear that the Defendant’s driver was to blame for the occurrence of the accident. 4. The Defendant submitted that, in the absence of sketch maps, in the absence of the accident’s investigating officer’s testimony on the circumstances under which the accident occurred, and the fact that the Plaintiff’s motor vehicle hit the Defendant’s motor vehicle from behind, there was no evidence on record to prove that the Defendant was to blame for the accident. 5. The evidence on record on the circumstances under which the accident occurred can be gleaned from PW1, PW4, and DW1’s oral testimonies, the police abstract dated 04th June 2024, the Plaintiff’s motor vehicle’s assessment report dated 19th June 2024, and the Defendant’s motor vehicle’s Certificate of Examination and Test report dated 06th June 2024. 6. PW1, who was called by the Plaintiff to testify on the circumstances under which this accident occurred, admitted that he never visited the scene nor investigated the circumstances under which the accident occurred. Courts in this jurisdiction have repeatedly decried the practice by counsel to call any random traffic police officer to testify about the circumstances of an accident, which they neither investigated nor visited the scene. Such evidence is hearsay evidence that lacks any evidential value. This means that PW1’s role before this court was limited to producing the accident’s police abstract. 7. A reading of the police abstract on record shows that the outcome of investigations into the circumstances under which the accident occurred was that the Defendant’s motor vehicle was to blame for the occurrence of the accident. The evidential value of an entry in a police abstract on the outcome of investigations into an accident was explained by the Court of Appeal in **Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR)** as follows: *“The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. Furthermore, the evidence showed that the appellant did not maintain a safe distance, which contributed to the collision. In Kenya Ports Authority v East African Power & Lighting Co. Ltd, (supra), it was held that a police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon.”* 1. Guided by the authority above, it follows that the entry in the police abstract herein to the effect that the Defendant’s motor vehicle was to blame for the accident was prima facie evidence of the Defendant’s negligence unless there was evidence to the contrary. That means an entry in the police abstract on who is to blame for an accident must be supported by evidence on record. 2. The foregoing takes this court to the question of whether there is evidence on record in support of the prima facie case of negligence established against the Defendant as set out in the police abstract on record. 3. The question above can be answered through an analysis of PW4 and DW1’s testimonies on the circumstances under which the accident herein occurred, as well as the Plaintiff’s motor vehicle assessment report and the Defendant’s motor vehicle’s Certificate of Examination and Test report inspection report on record. 4. PW4 maintained that the Defendant’s motor vehicle hit the Plaintiff’s motor vehicle when the Plaintiff’s motor vehicle was stationary after it turned left without due care and attention. DW1 on his part maintained that the Plaintiff’s motor vehicle rammed into the Defendant’s motor vehicle from behind when the two motor vehicles were moving towards the same direction along Bungoma – Kanduyi road in the left outermost lane as one faces the Kanduyi general direction. 5. The Plaintiff’s motor vehicle assessment report shows that the said motor vehicle was damaged on its front right side, while the Defendant’s motor vehicle’s Certificate of Examination and Test report shows that its rear grill was damaged on the left side. 6. Given that there is no dispute that Defendant’s motor vehicle was ahead of the Plaintiff’s motor vehicle at the time of the accident, it follows that the damage to the two motor vehicles could only be caused if either the Plaintiff’s motor vehicle was trying to overtake the Defendant’s motor vehicle on the left side or if the Defendant’s motor vehicle suddenly turned left without due regard to the Plaintiff’s motor vehicle following from behind. 7. The possibility of the Plaintiff’s motor vehicle overtaking the Defendant’s motor vehicle on the left side at the time of the accident is lessened by the fact that the two motor vehicles were all using the left outermost lane at the time of the accident, given that overtaking in such a situation would inevitably cause a motor vehicle to land in a ditch. Therefore, it is this court’s considered view that the evidence on record proved on a balance of probabilities that the accident occurred when the Defendant’s motor vehicle turned to the left. 8. The fact that this court has made a finding that, on a balance of probabilities, the accident occurred when the Defendant’s motor vehicle turned left does not in and of itself mean that the Defendant is wholly to blame for the accident. The Defendant’s driver can only be wholly blamed for the accident if, at the time he turned left, the Plaintiff’s motor vehicle was stationary. 9. Where the two motor vehicles were in motion when the Defendant’s driver turned left, the Plaintiff’s driver must be blamed for contributing to the occurrence of the accident by failing to keep a safe distance between him and the Defendant’s motor vehicle and failing to drive with proper care and attention demanded from a driver as was well explained in **Masembe vs. Sugar Corporation and Another [2002] 2 EA 434** where the court held that: *“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it…There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct…Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.”* 1. Flowing from the above, this court must answer the question of whether the Plaintiff’s motor vehicle was stationary or not at the time of the accident before apportioning liability between the drivers herein. 2. PW4 and DW1 took a divergent position on when the accident occurred. PW4 stated that the accident occurred when the Plaintiff’s motor vehicle was stationary, while DW1 insisted that the accident occurred when the two motor vehicles were in motion. 3. Given the divergent positions taken by PW4 and DW1 on what was happening at the time the accident occurred, this was a proper case for producing the accident’s sketch map and the accident’s investigating officer to testify on the circumstances under which the accident occurred. That was not done. 4. Whereas there is a sketch map in the Plaintiff’s Motor Accident Form dated 06th June 2024 on record, the said form cannot be taken as the gospel truth since it is the Plaintiff’s report to his insurer on who was to blame for the accident. No right-thinking person will report to his insurer that he was to blame for the occurrence of an accident. 5. In the absence of the accident’s sketch plan drawn by the accident’s investigating officer and the accident’s investigating officer’s testimony on the circumstances under which the accident occurred, it follows that there is no evidence on record to corroborate the entry in the police abstract on record that the Defendant’s motor vehicle was to blame for the occurrence of the accident. 6. It follows that the evidence on record on the circumstances under which the accident occurred is largely contradictory versions of events by the Plaintiff and the Defendant on who was to blame for the accident. Such evidence is usually barely adequate to apportion liability. 7. Given the foregoing, this is a proper case for this court to be guided by the opinion of the Court of Appeal in **Farah vs. Lento Agencies [2006] 1 KLR 123** where it expressed itself as follows: *“In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesitantly hold that both are to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them… The trial court...had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”* 1. The upshot of the foregoing is that this court apportions liability equally between the Plaintiff and the Defendant. **Quantum** 1. The Plaintiff sought to recover special damages of Kshs. 1,363,575/= from the Defendant comprising of motor vehicle repair costs of Kshs. 1,363,015/= and motor vehicle search fees of Kshs. 560/= from the Defendant. 2. This court has already stated earlier on that the pleaded sum of Kshs. 1,363,575/= can only be recovered from the Defendant upon the insurer proving on a balance of probabilities that they expended the said sum of money in making good the Plaintiff’s/insured’s loss. 3. The said sum of money claimed by the Plaintiff is Special Damages which, as a matter of law, must be specifically pleaded and strictly proved (see **David Bagine Vs Martin Bundi [1997] eKLR).** 4. The foregoing requires this court to determine whether the insurer strictly proved that they expended the pleaded sum of Kshs. 1,363,575/= in making good its insured’s loss. **Repair costs** 1. The Plaintiff relied on a tax invoice for Kshs. 1,363,015/= dated 03rd July 2024 from Wootton Automotive Limited, a Payment Requisition Voucher for Kshs. 681,507/= dated 13th August 2024, and two printed documents christened ‘Proof of Payment’ to prove that the insurer paid Kshs. 1,363,015/= in repairing the Plaintiff’s motor vehicle. 2. On the part of the Defendant, they conceded that the Plaintiff had proved that the insured expended Kshs. 1,339,515/= in repairing the Plaintiff’s motor vehicle. However, they termed the spare part costs claimed by the Plaintiff as exorbitant since the said spare parts could easily have been sourced locally cheaply as opposed to being imported as was done by Wootton Automotive Limited. The Defendant submitted that a sum of Kshs. 1,000,000/= was sufficient for the repair costs. 3. On the issue raised by the Defendant that the cost of the Plaintiff’s motor vehicle’s spare parts was exorbitant, it should be remembered that the spare parts costs herein were informed by the motor vehicle assessment report dated 19th June 2024, prepared and produced by PW2, whose competence was not impeached by the Defendant. 4. It has been held times without number in this jurisdiction that an uncontroverted motor vehicle assessor’s report is sufficient proof of damage to a motor vehicle and the cost of repairing such a damaged motor vehicle. This legal position can be gleaned from **Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya ( 2010) eKLR,** where the Court of Appeal stated thus: *“ Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are Common items and any price which the assessor might have given could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor's report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence. The Court had the right to accept or reject his opinion if the circumstances so dictated. The respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate Courts in the concurrent decision they came to.* *Indeed, the decision of David Bagine v. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor's report would provide acceptable evidence to prove the value of material damage to a motor vehicle.”(Emphasis added)* 1. What this court gathers from the authority above is that the contents of a motor vehicle assessment report prepared by a competent motor vehicle assessor can only be disregarded by a court if evidence to controvert the contents of such a report is placed before a court. Such evidence may include another motor vehicle assessor’s report at variance with the report relied on by a party. The Defendant did not adduce before this court such evidence. 2. It thus follows that the Defendant cannot purport to impeach the contents of the motor vehicle assessment report on record through submissions since submissions are not evidence. 3. Be that as it may, PW2 gave a good and plausible explanation of why the Plaintiff’s motor vehicle’s spare parts were costly. Therefore, this court finds and holds that the spare part costs of Kshs. 1,363,575/= cannot be termed as exorbitant. 4. The next question to be answered under this head is whether the Plaintiff strictly proved that the insurer expended Kshs. 1,363,575/= for repairing the Plaintiff’s motor vehicle. 5. This court has had the benefit of perusing the KRA tax invoice for Kshs. 1,363,015/= dated 03rd July 2024 from Wootton Automotive Limited, the insurer’s Payment Requisition Voucher for Kshs. 681,507/= dated 13th August 2024, and two printed documents christened ‘Proof of Payment’ adduced before this court in support of the insurer’s claim for Kshs. 1,363,015/= from the Defendant. 6. From the onset, it is imperative to note that a KRA tax invoice is not proof that a transaction took place or that money exchanged hands between a service provider and the contracting party (see **Osho Drappers Limited v Commissioner of Domestic Taxes (Tax Appeals Tribunal Appeal No. 159 of 2018)).** A KRA VAT invoice only records a transaction and its corresponding tax obligations. It is simply a declaration of tax expected from supplied goods or services. This explains why the KRA Tax invoice herein is dated 03rd July 2024, while the insurer’s Payment Requisition Voucher herein for part of the amount in the said KRA Tax invoice is dated 13th August 2024. Therefore, the KRA Tax invoice herein cannot be used as proof that the insurer expended Kshs. 1,363,015/= in repairing the Plaintiff’s motor vehicle. 7. Turning to the insurer’s Payment Requisition Voucher dated 13th August 2024 on record, this court notes that the said voucher was for a request for payment of Kshs. 681,507/= to Wootton Automotive Limited, not Kshs. 1,363,015/= pleaded in the further further amended Plaint on record. 8. This begs the question of whether the Payment Requisition Voucher dated 13th August 2024 on record is sufficient proof that the insurer expended Kshs. 681,507/= for repairing the Plaintiff’s motor vehicle. 9. The evidential value of a Payment Requisition Voucher in proving payments was well explained by the Court of Appeal in **Abdi Ali Dere v Firoz Hussein Tundal & 2 Others (2013) eKLR,** where the court held as follows: *“In our opinion it is not correct to say, as the trial court did, that in all and sundry cases a payment voucher cannot be evidence of payment. The term “voucher” derives from the word “vouch”, meaning “to confirm or assure”. The term “voucher”, in regard to payment, has at least two distinct meanings. It can mean a written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue in acknowledgement of payment. They merely counter sign the payment voucher to signify payment. This is particularly the case where the payees are casual workers engage to undertake short term assignments…”(Emphasis added)* 1. A reading of the authority above shows that a Payment Requisition Voucher can either be proof of authority to pay money or confirmation of payment, depending on the circumstances of a case. The authority also shows that a Payment Requisition Voucher can only be used as proof of payment where it is countersigned by the payee to signify payment. 2. A Payment Requisition Voucher can also be used as proof of payment where it is endorsed with the word “Paid.” This court draws inspiration from **Richard v Njeru (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR)** where Mwangi J held inter-alia: *“From the record, it is evident that the insurer indemnified the insured after the accident. This can be seen from plaintiff exhibit No 7, which is a letter dated 21st January, 2016 addressed to the insurer from the insured, requesting them to submit the payment of Kshs 3,036,800/= directly to Toyota Kenya Mombasa Branch. The respondent produced a payment voucher dated March 14, 2016, bearing a stamp from the insurer endorsing the word ‘Paid EFT/RTGS” on March 22, 2016’ as plaintiff exhibit No 8 which shows that the said amount of Kshs 3,036,800/= was credited into Toyota Kenya’s account on behalf of the insured under policy No 087-HO-132204-15. As such, I find that indeed the insurer did indemnify its insured, the respondent herein for the loss he suffered.”* 1. Turning to the circumstances of this case, the Payment Requisition Voucher on record was not countersigned by the payee (Wootton Automotive Limited) to signify payment of the sum of Kshs. 681,507/= set out therein. Further, the Payment Requisition Voucher herein lacks an endorsement of whether the sum of Kshs. 681,507/= therein was paid by the insurer to Wootton Automotive Limited. 2. The analysis above shows that the Payment Requisition Voucher herein cannot be relied upon by the Plaintiff to prove on a balance of probabilities that the insurer expended Kshs. 1,363,015/= for repairing the Plaintiff’s motor vehicle. 3. It would appear that, in acknowledgment of the fact that the KRA Tax invoice and the Payment Requisition Voucher on record were not sufficient proof of payment by the insurer of the claimed Kshs. 1,363,015/=, the Plaintiff filed two printed documents christened ‘Proof of Payment’ in a bid to prove that the insurer paid Wootton Automotive Limited for the repair of the Plaintiff’s motor vehicle. 4. A perusal of the said documents shows that the claimed sum of Kshs. 1,363,015/= was reportedly paid to Wootton Automotive Limited in two transactions on 28th June 2024 and 13th August 2024 through Electronic Funds Transfer (EFT). 5. It is a matter of public notoriety that EFT transactions are evidenced by digital banking receipts. If at all the said payments were made by the insurer to Wootton Automotive Limited through EFT, nothing prevented the insurer from adducing before this court a digital banking receipt setting out the payments’ payer, payee, transactions reference codes, and the transactions narratives. 6. Further, if at all Wootton Automotive Limited was paid the claimed sum of money by the insurer, nothing prevented Wootton Automotive Limited from placing before this court an ordinary receipt or an ETR receipt evidencing receipt of the money claimed to have been paid to them by the insurer. 7. In the absence of a digital banking receipt(s) to evidence the alleged EFT transactions between the insurer and Wootton Automotive Limited and in the absence of a receipt or an ETR receipt from Wootton Automotive to confirm receipt of the money claimed by the insurer, this court takes the position that the ‘proof of payment” documents on record do not prove on a balance of probabilities that the insurer paid any money to Wootton Automotive Limited. 8. One may be tempted to argue that, given that the Defendant’s counsel conceded through written submissions that the Plaintiff ought to be awarded repair costs of Kshs. 1,000,000/=, this court should proceed and make that award. 9. That argument sounds and looks attractive on the face of it. However, it should be remembered that a concession in written submissions is not a consent that a court is expected to adopt as the party’s position regarding an issue. 10. An analysis of the Plaintiff’s documentary evidence above shows that the Defendant’s counsel’s concession for an award of Kshs. 1,000,000/= to the Plaintiff was founded on a misapprehension of the law on the evidential value of the Plaintiff’s exhibits herein on the insurer’s alleged payment to Wootton Automotive Limited of the sum of money claimed herein. A court is entitled to disregard a concession in a party’s written submissions based on a misapprehension of the law or facts. 11. The upshot of the foregoing is that the Plaintiff failed to prove on a balance of probabilities that the insurer expended Kshs. 1,363,015/= for repairing her motor vehicle. **Motor Vehicle Search Fees** 1. The Plaintiff for an award of motor vehicle search fees of Kshs. 560/=. The NTSA receipt on record dated 16th September 2024 proved motor vehicle search fees of Kshs. 550/=. 2. In the circumstances, this court makes an award of Kshs. 550/= under this head. **Witness Expenses** 1. The Plaintiff submitted that this court ought to make an award of Kshs. 5,000/= to them being witness expenses reportedly paid to PW1 to attend court. 2. It is well settled in this jurisdiction that parties are bound by their pleadings. The Plaintiff did not plead an award of witness expenses in their further further amended Plaint herein. Therefore, the Plaintiff cannot seek a remedy or an award not pleaded through written submissions. 3. In any event, this court is of the considered view that witness expenses are costs of a suit which ought to be claimed during assessment of costs as disbursements. 4. It is against this backdrop that this court declines the Plaintiff’s invitation to award witness expenses of Kshs. 5,000/=. **DETERMINATION** 1. Given the reasons above, judgment is entered against the Defendant in the following terms:- 1. *Liability - 50%:50%* 2. *Motor Vehicle Search Fees – Kshs. 550/=* *Total Award - Kshs. 550 /=* *Less 50%* ***Net Award - Kshs. 225/=*** 1. The award above, being special damages, will accrue interest at court rate from the date of filing this claim till payment in full. 2. The Plaintiff will also have the costs of this suit subject to the ratio of liability herein. 3. It is so ordered. **Read, signed, and delivered in open Court at Bungoma this 16th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** In the presence of: Ms. Ateka for the Plaintiff Ms. Chesanai for the Defendant C/A: Mr. Rioba Accused Persons placed on their defence. Accused Persons to give sworn testimony, no witnesses Bond of Kshs. 50,000/= W1SSA each or cash bail of Kshs. 20,000/=