Regina Muthoni Murigi v Charles Mbuthia Kariuki

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL DIVISION (APPELLATE SIDE)** **CIVIL APPEAL NO. E046 OF 2025** **BETWEEN** **REGINA MUTHONI MURIGI…………..……………………….……..APPELLANT** **AND** **CHARLES MBUTHIA KARIUKI……………………………………….RESPONDENT** **(*Being an appeal from the judgment and decree of Hon. B.A. Luova RM/Adjudicator dated 10th February 2025 at the Small Claims Court at Machakos in SCCC No.E1406 of 2024*)** **JUDGMENT** **Introduction and Background** 1. Before the subordinate court, the Appellant filed a claim against the Respondent seeking judgment of Kshs.999,978.00 together with interest and costs of the suit being repair costs for her motor vehicle *Isuzu* Bus registration number KCA \*\*\*E that the Appellant claimed was damaged as a result of an accident that occurred on 28th November 2022 along Nairobi-Namanga road at *Vanillas* area within Machakos County. The Appellant claimed that the Respondent recklessly and/or negligently drove his motor vehicle Toyota Hilux registration number KCE \*\*\*E and rammed into her motor vehicle causing extensive damages. 2. In his response, the Respondent denied that an accident occurred on the material date involving the two vehicles or that his driver was negligent. In the alternative, the Respondent averred that if an accident did occur, it was solely caused or substantially contributed to by the negligence of the Appellant’s driver. He denied the claim for special damages, asserting that the Appellant had not proven her loss and he urged the subordinate court to dismiss the Appellant’s case with costs to the Respondent. 3. When the matter came up for hearing, the Appellant called as her witnesses, Josephat Kamau Ndovi, a Principal Assessor at *Primedots Assessors* (CW 1), Aggrey Angutsa, the driver of her motor vehicle at the material time (CW 2) and 81685 SS Maureen Odera, a police officer attached at Athi River Traffic Base (CW 4). The Appellant also testified on his own behalf (CW 3). On his part, the Respondent chose to proceed by way of documents and the witness statement of Dennis Wambua Kimondiu, the Respondent’s driver was adopted as his evidence. The parties were then directed to file written submissions and the subordinate court thereafter rendered a judgment on 10th February 2025. 4. The trial court assessed liability at 100% in favour of the Appellant and on quantum, it declined to award the claim repair costs noting that the Appellant had provided an Assessment Report but because the vehicle had already been repaired, **Rule 5(1)(b)** of the ***Small Claims Court Rules*** applied, which required itemized receipts to prove the actual costs. That as the receipt for the repairs was expunged from the record and no other receipts were provided, the claim was not strictly proved. The trial court also declined to award towing fees and assessment for want of proof by way of receipts It awarded Kshs. 550.00 for the copy of the motor vehicle record holding that this amount was proved. 5. In summary, the trial court entered judgment for the Appellant against the Respondent as follows: 6. Liability at 100% in favour of the Appellant 7. Kshs. 550.00 for special damages 8. The Appellant is dissatisfied with this judgment and now appeals against the same to the court through her Memorandum of Appeal dated 27th February 2025. She avers that the learned Adjudicator erred in law by disregarding the binding Court of Appeal decision in **Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)**, which established that an assessment report is sufficient proof of a claim for special damages in material damage claims. That she misdirected herself by holding that an assessment report must be accompanied by receipts of repairs in order to prove loss in a material damage claim, which is contrary to established legal principles and that she proceeded on wrong principles when she dismissed the Appellant’s quantum case, despite the Appellant having sufficiently proved her claim for special damages. The Appellant further states that the learned Adjudicator erred in law by declining to grant full costs to the Appellant even though she had established that the Appellant had proved her case on liability and awarded costs limited to Kshs. 550.00. The Appellant contends that this is against the established principle that costs follow the event. 9. As such, the Appellant prays that the court allows the appeal, that the Judgment on quantum in the trial court be set aside and assessed afresh and that the costs of this appeal be borne by the Respondent. The appeal has been canvassed by way written submissions which I have considered and where necessary, I will make relevant references to them together with the record in my analysis and determination below. **Analysis and Determination** 1. In determining this appeal, it is not lost to me that the court’s jurisdiction in dealing with appeals from the Small Claims Court is limited by **section 38(1)** of the ***Small Claims Court Act (Chapter 10A of the Laws of Kenya)*** which provides that ‘*A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’* A court limited to matters of law is not permitted to substitute the Subordinate Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (**Mati v Returning Officer Mwingi North Constituency & 2 others [2018] KECA 700 (KLR)].** 2. The issue for determination before this court is whether the trial court ought to have awarded the repair costs sought by the Appellant. The crux of the matter is that a claim for the cost of repairing a damaged vehicle is a specific category of special damages with its own established rules of proof. The Court of Appeal in ***Nkuene (supra)****,* which the Appellant heavily relied upon, is the definitive authority on this point as it was held as follows: *“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of.”* 1. This means that claimant does not need to produce receipts to prove the actual cost of repairs they paid and they only need to prove the estimated cost to restore the vehicle, which is precisely what a professional motor vehicle assessor's report does. The Court in ***Nkuene(supra)***went on to state that *“[an] Assessor’s report was sufficient proof and the failure to produce receipts for any repairs done was not fatal to the… claim”.* The learned Adjudicator however, while cognizant of this decision, applied the general rule of strict proof for special damages stating that because the vehicle was actually repaired, **Rule 5(1)(b)** of the ***Small Claims Court Rules***, which allows for itemized receipts applied and therefore **Rule 5(1)(a)**, which allows for an assessment report was insufficient. I am in agreement with the Appellant’s submission that this was a misdirection because the use of the word “or” between the two rules in **Rule 5(1)** means that they are disjunctive and they provide alternative methods of proof. A claimant can thus choose to prove their claim by either an assessment report or a receipt. By the learned Adjudicator holding that an assessment report "…*does not strictly prove with particularity the cost of repair*s.." simply because the vehicle was repaired, the learned Adjudicator ignored the clear exception established in ***Nkuene (supra)*** and effectively rendered **Rule 5(1)(a)** of the ***Small Claims Court Rules*** meaningless, which could not have been the intention of the legislature. 2. Indeed, the Appellant’s witness, CW 1 who prepared the assessor’s report estimated the repair costs at Kshs. 999,978.00. He testified on his methodology and was not effectively challenged by the Respondent who did not call their own assessor to challenge this report. As this court (Okwany J.,) held in **Wardere v Kinyanjui (Civil Appeal E021 of 2025) [2026] KEHC 2751 (KLR),** once an expert assessment report is produced and uncontested, a subordinate court is bound to accept that evidence as the itemized estimate of the cost of repair under **Rule 1(a)**. The court further emphasized that there is no statutory requirement that actual receipts must always accompany such assessments. 3. Whereas the Respondent relies on the Court of Appeal’s decision in **Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR)**to advance his position that special damages must be specifically pleaded and proved, I find that this case is distinguishable. Just like the court in ***Wardere(supra)*** held, that case involved a complex claim for loss of business and damage to sophisticated equipment, where the exact losses were contested and the claim was for millions of shillings. The instant case is a straightforward material damage claim for repairing a motor vehicle, with a modest sum of under Kshs. 1,000,000.00 and an estimate provided by an expert. The Court of Appeal in ***Capital Fish(supra)***itself did not overturn the exception for material damage claims but simply stated that the facts of that case did not fall within that exception. 4. It is therefore my finding that the learned Adjudicator's finding on quantum of the repair costs was a misapplication of the law. She was duty-bound to apply the principles set out by the Court of Appeal in ***Nkuene(supra)***which establish that an unchallenged, professional assessment report is sufficient proof of special damages in a material damage claim. By demanding receipts, the learned Adjudicator effectively required the Appellant to prove her claim to a higher standard than the law requires. This was a reversible error of law and this court, sitting as a first appellate court with jurisdiction on matters of law, is justified in interfering with this decision and setting aside the Adjudicator's finding on the same. **Conclusion and Disposition** 1. In the foregoing, it is my finding that the Appellant’s appeal succeeds to the extent that the portion of the judgment of the subordinate court that declined to award repair costs is set aside and substituted with an award of Kshs. 999,978.00 together with interest from 10th February 2025 until payment in full. The Appellant is also awarded costs of the trial court and this appeal assessed at Kshs. 50,000.00 **DATED SIGNED AND DELIVERED virtually this 2nd DAY OF SEPTEMBER** **2026** ............................................................................ **J W W MONGARE** **JUDGE** **In the presence of;** 1. Ms. Peter for the Appellant 2. N/A for the Respondent 3. Abdisalan- Court Assistant