https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11556

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E002 OF 2025** **RICHARD OKELLO OWUOR …………………………….…………………..…… APPELLANT** **VERSUS** **BEATRICE LUDENYO ...……………………………..……………………….…. RESPONDENT** **(Being an appeal from the Judgement and/ or decision of Hon. Angeline Odawo (PM) delivered on 19th December 2024 in Kakamega CMCC No. E128 of 2022)** **JUDGEMENT** **Background** 1. The Appellant filed suit against the Respondent in which he claimed general damages, special damages, lost income, and costs of the suit, alleging that on the 30th March 2022, while his motor vehicle registration No. KBD 756Y Mitsubishi Fuso canter was being lawfully driven along Kakamega-Mumias road at Ejinja Area, the Respondent’s motor vehicle registration No. KCV 502G Toyota Mark X was so carelessly and recklessly driven and/or controlled by the Respondent’s servant, agent or driver, thereby causing it to veer off its lane as a consequence of which the said motor vehicle registration No. KCV 502G knocked/hit and/or rammed into the Appellant’s motor vehicle registration No. KBD 756 Y as a result of which the latter motor vehicle was extensively damaged. 2. The Appellant claimed that as a result of the accident, he lost daily income of between Ksh. 15,000/= and Ksh. 20,000/=. He enumerated the particulars of loss and damage as: the value of the motor vehicle being Ksh. 800,000/=, loss of molasses at the scene of the accident valued at Ksh. 66,120/=, towing charges, Ksh. 2,000/=, valuation costs, Ksh. 6,000/=, all coming to a total of Ksh. 904,120/=. 3. In response, the Respondent filed a defence in which she denied the Appellant’s averments. She averred that her motor vehicle was driven safely and carefully and that it was the Appellant’s motor vehicle which contributed wholly to the accident. 4. The Appellant called three witnesses in support of his claim. It was his testimony that on the material date, he received a call from his client informing him of the accident. The following day, he went to Kakamega Police Station, where his vehicle had been towed, the two vehicles were inspected, and his own vehicle was released to him for repair. He claimed compensation for inter alia, special damages, two months' lost income, general damages, and costs and interest of the suit. He attributed the accident to the negligence of the driver of the motor vehicle registration No. KCV 502G, Toyota Mark X. He claimed that he had purchased his motor vehicle at Ksh. 1,000,000/= and that after the accident, it could not be repaired and he sold it as scrap for Ksh. 320,000/=. He produced the relevant receipts and the sale agreement for the motor vehicle, which he said he had not yet transferred into his name at the time of the accident. 5. The Appellant's second witness, PW2, was PC Collins Holo, who produced the police abstract in respect of motor vehicle registration No. KBD 756Y Mitsubishi Fuso Canter. He testified that there was an accident on 30th March 2023 at about 3.30 p.m. at Ejinja involving motor vehicle registration No. KCV 502G, which was being driven by Lewis Ogada, while the canter was being driven by Munali Sabuni, who sustained a few injuries. 6. On cross-examination, PW2 stated that he had not produced the sketch map and that the Respondent’s motor vehicle was to blame for the accident as reported by Corporal Benson, who was the Investigating Officer and was at the time attending a course at Kiganjo. 7. PW3 was Job Wafula, the Vehicle Inspector/Valuation Officer who testified that he prepared a report dated 1st April 2022 in which he indicated that the cost of repair of the motor vehicle was more than half the value of the subject motor vehicle, which was valued at Ksh. 800,000/=. He said that after inspecting the vehicle, he declared it a total loss, and his report was signed by the manager in charge of assessment. 8. When cross-examined, PW3, who produced the inspection report, said that the salvaged parts were worth Ksh. 300,000/= and that after the initial impact, the vehicle rolled several times, hence the damage. 9. In defence, the Respondent adopted her witness statement in which she had stated that she had authorized her son Clyde Lewis Ogada to drive her motor vehicle registration No. KCV 502G on the date it was involved in the accident. She denied that the driver of her motor vehicle was negligent and shifted the blame to the driver of the Appellant’s motor vehicle. 10. DW2 was Clyde Lewis Ogada, who also adopted his witness statement in which he stated that on 30th March 2022, he was the duly authorized driver of motor vehicle registration No. KCV 502G along Kakamega-Mumias Road when he saw motor vehicle registration No. KBD 756Y quickly change into his lane. Since it was driven at high speed, it violently hit motor vehicle registration No. KCV 502G on the right-hand side. He recounted that as a result of the collision, his motor vehicle was significantly damaged on the right side, including the driver’s door, side mirrors, and front and back right wing. He said that he proceeded to Kakamega Police Station, where he recorded a statement and was issued with a police abstract indicating that the matter was pending under investigation. He asserted that he was not liable for causing the accident as he had driven carefully and safely. He blamed the driver of motor vehicle registration No. KBD 756Y for driving his vehicle at an excessive speed, thereby causing the accident. 11. In a Judgement delivered on 18th December 2024, the trial court dismissed the Appellant’s suit with costs. 12. Aggrieved with the decision of the trial court, the Appellant lodged an appeal in which he faulted the trial court for failing to consider and make a finding on the *“causing and blameworthiness of the Respondent”* (sic); for failing to consider his submissions, and for using the wrong principles in the assessment of damages, therefore arriving at an erroneous decision. 13. The appeal was canvassed through written submissions. **Appellant’s Submissions** 1. The Appellant submitted that he had adduced sufficient evidence on the issue of causation and blameworthiness of the Respondent as he had testified and produced photographs from the scene of the accident showing the extensive damage and state of the vehicles after the accident. He further submitted that PW2, an expert witness, stated that the Respondent’s vehicle swerved and hit his vehicle despite the Appellant’s driver taking all the necessary precautions to avoid the accident. The Appellant asserted that he did prove negligence as he brought independent witnesses to prove his case, and that once a prima facie case was established against the Respondent, the onus to discharge the burden rested on the Respondent and his driver, DW2, who failed to adduce evidence to show that the Appellant was negligent or driving at a high speed. He relied on the case of **William Kabogo Gitau v. George Thuo & 2 others [2010] 1 KLR 526.** 2. The Appellant further submitted that the trial court applied the wrong principles by solely basing its decision on the failure by the Appellant to call the Investigating Officer and the driver, or to cross-examine them, to defeat the Appellant’s case. He asserted that he did call two independent witnesses to attest to the facts stated and to produce all the documents. The police officer blamed the Respondent for causing the accident, as her motor vehicle rammed into his motor vehicle. The Appellant cited the case of **David Kajogi M’Mugaat v. Francis Muthomi [2012] eKLR** and insisted that he cross-examined the defence witnesses as proven by the proceedings. 3. Relying on **Hussein Omar Farah v. Lento Agencies [2006] eKLR**, the Appellant submitted that the trial court did apply the wrong principles. He urged the court to award the damages as sought and cited **Ken Odondi & 2 others v. James Okoth Omburah t/a Okoth Omburah & Company Advocates**, **Mwandoto v. Wanaina [2025] KEHC 14334 (KLR)** and **Harrison Baya Yaa v. Mash East Africa Limited [2000] KEHC 8657 (KLR)**. **Respondent’s Submissions** 1. The Respondent submitted that she had, by leave of the court, filed a cross-appeal dated 6th November 2025 seeking orders inter-alia that this honourable court be pleased to pronounce itself and or set aside/vary and or quash the judgement on general, special damages, and loss of income of the trial court. 2. It was the Respondent’s submissions that, as held by the trial court, the Appellant had failed to prove negligence on a balance of probabilities. She asserted that the trial court was right in holding that a police abstract is not conclusive proof of liability. She relied on **Kennedy Nyagonya v. Bash Hauliers [2016] eKLR**. 3. The Appellant further contended that the police officer who produced the police abstract was not the Investigating Officer and, as such, the Appellant’s testimony remained uncorroborated since the said police officer did not witness the accident. She relied on **Franklin Maingi Nkunja v. Rose Mutuma & Another [2021] eKLR**. 4. The Appellant also relied on **Anastassios Thomos v. Occidental Insurance Company Limited [2017] eKLR** and argued that there can be no liability unless the damage is the proximate result of the negligence. She posited that the trial court’s decision on quantum was based on sound principles and ought not to be disturbed. 5. Additionally, the Respondent submitted that the Appellant failed to prove damages and that he was entitled to the damages as sought. She argued that the award of Ksh. 1,200,000/= was not tenable. **Analysis and Determination** 1. This being a first appeal, the duty of the court is to re-evaluate and analyze the evidence on record afresh with a view to arriving at its independent conclusion whilst being mindful of the fact that it neither saw nor heard the witnesses testify. See **Selle & Another v.Associated Motor Boat Co. Ltd & Others [1968] EA 123.** 2. The issues for determination are as follows:- 3. *Whether the Appellant proved negligence on the part of the Respondent’s driver.* 4. *Whether the Appellant proved the damages pleaded.* 5. Section 107 of the Evidence Act stipulates that whoever desires any court to give judgement as to the existence of any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 6. In a civil suit as in this case, the standard of proof is as enunciated in **Miller v. Minister of Pensions [1947] 2 ALL ER 372**, cited with approval in **Palace Investments Ltd v. Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR),** where the Court of Appeal pronounced itself as follows- “…**Denning J. in Miller** **–vs- Minister of Pensions** **[1947] 2** **ALL ER 372, discussing the burden of proof, had this to say:-** **“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”** 1. Closer home, in **William Kabogo Gitau v. George Thuo & 2 others** (Supra), Kimaru J, as he then was, stated:- ***“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case is more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51%, as opposed to 49% of the opposing party, is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”*** 1. The burden of proof was therefore primarily on the Appellant to prove on a balance of probabilities, that the Respondent’s driver was solely or partially to blame for the accident. 2. The Appellant did not call the driver of the subject motor vehicle, who witnessed the accident, to testify in support of the claim. His case therefore primarily rested on the evidence of PW2 and on the police abstract that he produced. The failure to adduce the evidence of the driver of the subject motor vehicle rendered the Appellant’s claim weak as it leads to the presumption that the said driver’s evidence would have been prejudicial to the Appellant’s claim. In **Kenya Akiba Micro Financing Limited v. Ezekiel Chebii & 14 others [2012] KEHC 5590 (KLR)**, the Court stated that:- ***“Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108, the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”*** 1. I agree with the Respondent’s submissions that the Appellant’s testimony ought to be weighed against that of the Respondent’s driver who testified in court. In the absence of the Appellant’s driver as well as that of the Investigating Officer, both of whom were material to the Appellant’s case, the court is left with no option but to conclude that the evidence of absent witnesses would have been adverse to the Appellant’s case. The principle that failure to call a material witness gives rise to an inference that their evidence would have been adverse is consistent with Section 112 of the Evidence Act, which provides that: ***“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.***” See also **Bukenya & Others v Attorney General [1972] EA 158** where the court held:- **“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”** 2. Moreover, whereas the Appellant placed premium on PW2’s claim that the Respondent’s driver was to blame for being negligent, and the fact that the police abstract indicated that Lewis Ogada, the driver of motor vehicle registration No. KCV 502G was to be charged for careless driving of a motor vehicle; the evidence as to who was to blame was inconclusive. The court has carefully considered the evidence and noted that the police abstract dated 1st April 2022 and produced by the Appellant attributed the accident to Lewis Ogada, whereas the police abstract dated 31st March 2022 and produced by the Respondent indicated that the matter was pending under investigation. Given the discrepancies between the two police abstract reports, the court cannot determine liability from either report without further evidence to resolve the inconsistency. In **Anastassios Thomos v. Occidental Insurance Company Limited (Supra)**, the Court quoted **Walker v. Goe [1859], 4 H. & N. 350,** where it was held as follows:- ***“In the work of Charles worth & Peray on Negligence, 7th Edition, it is stated as follows;*** ***“*Evidence of causation must be given on behalf of plaintiff. Before a case can be considered, either direct or circumstantial evidence must be called on behalf of the plaintiff. Whatever evidence is so called, it must tend to show how the accident happened and how, as a result, he sustained his personal injuries or suffered his damage. Such evidence also must show that on a balance of probabilities, the most likely cause of the damage was the negligence or breach of duty of the defendant, his servant or agent and not solely the negligence of some other person. If he fails to establish that the defendant caused the harm, of which he complains, or some part of it, then his action will fail. Such a failure will result whether this happens to be expressed in terms of lack of result or for reasons of remoteness.”** 1. It is trite law that a police abstract alone is not conclusive evidence of liability, as it does not detail how an accident occurred but signifies the fact that a report was made concerning the occurrence of the accident. See **Githinji & Another v. Aberdares National Park [2026] KEHC 3045 (KLR)** and **Jeniffer Wangari Nyamu v. Peter Kabingu Maina & Another [2026] KEHC 3718 (KLR).** 2. From the record, the Appellant did not call the Investigating Officer, nor did he tender a sketch map of the accident in proof of his claim. He merely relied on the evidence of PW2, which is essentially hearsay evidence and therefore has little probative value. See **George Kinuthia Ngure v. Benson Mwangi Maina [2025] KEHC 11696 (KLR)**, and **Franklin Maigi Nkunja v. Rose Mutuma & Another [2021] KEHC 636 KLR,** where the Court stated that:- ***“…No sketch plan was produced herein to show where the exact point of impact was yet the respondent say her and the investigating officer visited the scene the next day. It is difficult to take it that the police visited the scene and totally failed to do sketches. I can only draw an inference that any such sketches if proved would have provided adverse evidence against the respondent. Equally no eye witness was called by the appellant to support his version of events. The police abstract the appellant produced did not have any information of who was to blame for the accident.”*** 1. The Court is guided by the finding in **David Kajogi M’Mngai v. Francis Muthomi (Supra)** where it was held that the evidence of an Investigating Officer alone is not conclusive as to who is to blame for an accident. The recommendations in the police abstract produced by PW2 were merely the opinion of the Investigating Officer, and, in the absence of proof of DW2's prosecution for careless driving, the claims remained mere opinions that were never substantiated or corroborated. 2. Conversely, the Respondent’s driver personally denied being negligent and attributed the accident to the Appellant’s driver. The Respondent’s evidence was superior to the Appellant’s evidence, which only proved that an accident had occurred in which his vehicle was substantially damaged. In the premises, and in the absence of a sketch plan to confirm the point of impact, the court finds that the Appellant failed to prove his case to the required standard and finds no fault with the trial court’s finding on liability. 3. Regarding the second issue, on quantum of damages, the trial court merely stated as follows: ***“…I would have awarded the special damages sought, as they were specifically pleaded and receipts for the same produced as exhibits. I would have made no award on general damages, as there was no evidence to substantiate the same. I would have awarded the plaintiff costs and interest of the suit.”*** 1. In respect of special damages, the Appellant sought to recover Ksh. 904,120/=. It is trite that special damages must not only be specifically pleaded but also strictly proved. 2. Regarding the towing charges, the Appellant produced Receipt No. 0135 dated 28th May 2022 for Ksh. 28,000/= and Receipt no. 6783 dated 24th June 2022. He pleaded Ksh. 28,000/= for towing charges however, and in the absence of any amendment to incorporate the two sets of towing charges, only one claim for Ksh. 28,000/= on this head should have been allowed had the suit succeeded. 3. On the Ksh. 66,120/= for the loss of molasses, the Appellant did not adduce sufficient evidence that the canter was carrying the molasses at the time of the accident. What he produced was an illegible Delivery Note/Invoice without the driver’s signature. He did not produce photographs of the accident scene. There was no way the court could determine whether the molasses was still loaded on the canter at the time of the accident in view of the fact that the driver did not testify. 4. The Appellant also did not provide any invoice or ETR receipt to prove that he paid Ksh. 6,000/= for valuation and cannot be found to have proved the said claim. 5. According to the Appellant, the motor vehicle registration No. KBD 756Y was damaged beyond repair, and he sold it for Ksh. 320,000/= having purchased it for Ksh. 1,000,000/=. However, PW3 valued the motor vehicle at Ksh. 800,000/= and that is the value that should form the basis of the damages. The Accident Assessment Report dated 1st April 2022 placed the pre-accident value at Ksh. 800,000/= with a salvage value of Ksh. 300,000/=. The Appellant testified that he sold the salvage for Ksh. 320,000/=. In the premises, the Appellant would have been entitled to Ksh. 480,000/= only. The special damages would have therefore totaled Ksh. 508,000/=. 6. Regarding general damages, the Court is guided by the precedent that was quoted by the Appellant, which is the case of **Ken Odondi & 2 others v. James Okoth Omburah t/a Okoth Omburah & Co. Advocates** **(supra),** where the Court held that:- ***“We agree that this court will not ordinary interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled. “*** 1. In the case of **David Bagine v. Martin Bundi, Civil Appeal No. 283 of 1996** cited with approval in **Grace Ayoa Mbinda v. Jubilee Insurance Company Limited [2021] KEHC 9277 (KLR),** the Court stated that damages which are claimed under the title “loss of user” are special damages which must be proved and held that: **“We must and ought to make it clear that damages claimed under the title "loss of user" can only be special damages. That loss is what the claimant suffers specifically. It can in no circumstances be equated to general damages to be assessed in the standard phrase "doing the best I can.”** 1. It stands to reason, then, that the mere assertion of loss of income without production of any evidence ascertaining the alleged loss does not amount to sufficient proof. In his plaint, the Appellant prayed inter alia for unspecified loss of income. In his witness statement, he claimed to have been using the motor vehicle for transport services, generating at least Ksh. 25,000/= to Ksh. 40,000/= per day, and that he lost income for the 30 days the vehicle was in the garage for repairs. 2. In the first instance, the Appellant’s claim was inconsistent with his evidence as he had said that the vehicle could not be repaired. So what version of the claim should the court believe? Was the motor vehicle written off and sold as salvage, or was it repaired, and did the repair take thirty (30) days? Should the court believe that he took a loan from NCBA Bank, bought another vehicle, and did not use the vehicle for two (2) months? The two-month claim was again at variance with the claim of loss of user for 30 days. 3. The Appellant did not produce any record of daily revenue from the use of the motor vehicle in the transport business. He also did not produce any books of accounts, ledger books, M-Pesa statements, or bank statements matching the period before the accident to establish a historical trend of the alleged earnings. 4. The court has further reviewed the Accident Assessment Report, which has a disclaimer that the vehicle was not roadworthy and not insurable as the chassis number, model, engine number, and engine capacity were all different from what was indicated in the logbook. Bearing in mind the aforesaid observation by the Assessor, it was incumbent on the Appellant to prove that the motor vehicle was roadworthy, and that it had valid public service vehicle licences and Transport Licencing Board licences. In failing to prove that the vehicle was duly licenced for transport services, and by failing to adduce evidence to prove income from the use of the vehicle, the Appellant fell short of the required standard of proof of loss of user. The court finds that the trial court did not err in declining to award him any general damages. 5. From the foregoing analysis, I hold that the Appellant's appeal fails. The Judgement of the trial court is therefore affirmed. The cross-appeal partially succeeds on the issue of quantum of damages which would have been payable in the event the appeal succeeded. Since the judgement of the lower court dismissing the Appellant’s suit is affirmed, the Respondent shall have costs of the appeal. There shall be no order as to costs on the cross-appeal. Dated, signed, and delivered at Kakamega, this 23rd day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** No appearance for Ms. Obat for the Appellant Ms. Kuria for the Respondent Court Assistant: Polycap