https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13118

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **CASE NO. MCCC/E10171 OF 2021** **RUTH NJERI WANG’OMBE** ........................................................ **PLAINTIFF** **-VERSUS-** **EDWARD KAMAU MWANIKI** .......................................... **1ST DEFENDANT** **JACOB MBITHU NJOROGE** .......................................... **2ND DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff, vide a Plaint dated 5th August ,2021, instituted this suit against the Defendants arising from a road traffic accident which occurred on 22nd November 2020 along the Northern Bypass near Maziwa. The accident involved Motor Vehicle Registration Number KCJ 644J, which the Plaintiff claims to own, and motor vehicle registration number KCV 071Y, registered in the name of the 1st Defendant and driven by the 2nd Defendant. 2. The Plaintiff pleaded that the accident was caused by the negligence of the 2nd Defendant in the manner in which he drove, managed and controlled motor vehicle KCV 071Y. She further pleaded that the 1st Defendant was vicariously liable for the negligence of the 2nd Defendant. 3. The Plaintiff pleaded that, as a result of the accident, her motor vehicle sustained severe frontal damage. She incurred expenses for towing, assessment, inspection and repairs and was deprived of the use of the vehicle during the repair period. She claimed Kshs.293,050/= as special damages and Kshs.180,000/= for loss of income/user, together with costs and interest. 4. The Defendants entered appearance and filed a Defence denying negligence and liability. They maintained that the 2nd Defendant was driving carefully and that, if an accident occurred, it was caused by the driver of the Plaintiff’s vehicle and/or an unidentified pickup which allegedly overlapped or overtook the Defendant’s vehicle. They also disputed the damage and the losses claimed. **Plaintiff’s Evidence** 1. The Plaintiff called two witnesses. 2. PW1, Ruth Njeri Wang’ombe, testified that she was the owner of motor vehicle KCJ 644J and that the vehicle was involved in the accident with the Defendants’ vehicle. She testified that the vehicle sustained extensive damage and that she incurred expenses towards its repair. She relied on the documentary evidence produced in support of her claim. 3. PW1 maintained that the damage and expenses claimed arose from the accident. She also testified regarding the loss occasioned by the vehicle being unavailable for use during the repair period. 4. PW2, PC John Mwongela Kivuva, a Police Officer attached to the Traffic Section at Kahawa West Police Station, testified regarding the police records relating to the accident. He produced the police abstract and testified that the accident occurred on 22nd November 2020 along the Northern Bypass near Maziwa Bridge. According to the police records, the driver of the Defendant’s vehicle was blamed for the accident. 5. On cross-examination, PW2 conceded that he was not present at the scene of the accident. He therefore did not personally witness the collision and could not, from his own knowledge, state precisely how the accident occurred. He acknowledged that he relied principally on the police abstract and police records. 6. On Re-Examination, PW2 maintained that his evidence was based on the police records and reiterated that the investigations had attributed blame to the driver of the Defendant’s vehicle. **Defendant’s case** 1. The Defence called DW1, Jacob Mbithu Njoroge, the 2nd Defendant. 2. DW1 adopted his Witness Statement dated 29th July 2022 as his evidence in chief. He stated that he was travelling with his family and that, upon reaching the Maziwa area, another vehicle/pickup approached at high speed and overlapped or overtook him. He attempted to avoid the vehicle, lost control of his vehicle and thereafter did not know what happened. 3. DW1 stated that he was driving at approximately **60–80 km/h**, although he did not know the applicable speed limit. He maintained that the accident was caused by the unidentified vehicle. 4. DW1 further stated that his child sustained injuries and was taken to hospital. He conceded, however, that he had no documentary evidence demonstrating that the child had been taken to hospital or that he himself had received treatment. 5. On Cross-Examination, DW1 confirmed that he was driving the vehicle involved in the accident. He stated that he had not called any other witness. He maintained that he was driving at between 60–80 km/h and admitted that he did not know the applicable speed limit. He further maintained that the other vehicle had overlapped or overtaken him, causing him to lose control. 6. On Re-Examination, DW1 stated that there was no speed-limit sign at the place of the accident and reiterated that he was driving at approximately 60–80 km/h. **Plaintiff’s Submissions** 1. The Plaintiff submitted that she had proved her case on a balance of probabilities. It was submitted that the police abstract, oral evidence and assessment report established the occurrence of the accident, the damage to the motor vehicle and liability on the part of the Defendants. 2. On special damages, the Plaintiff submitted that the amount of Kshs.293,050/= had been specifically pleaded and strictly proved through the documentary evidence. 3. On loss of user, the Plaintiff submitted that the motor vehicle was a profit-making chattel and remained out of use during the repair period. She claimed Kshs.6,000/= per day for 30 days, totalling Kshs.180,000/=. 4. The Plaintiff relied, inter alia, on **Jackson Mwabili v Peterson Mateli [2020] eKLR**, **Team for Kenya National Sports Complex & 2 Others v Chabari M’Ingaruni, Civil Appeal No.293 of 1998**, **Peter Njuguna & Another v Anna Mora, Civil Appeal No.23 of 1991**, and **Samuel Kariuki Nyangoti v Johaan Distelberger [2017] KECA 691 (KLR)** in support of the claim for loss of user. **Defendants’ Submissions** 1. The Defendants submitted that the Plaintiff had failed to prove negligence. They argued that PW2 was not an eyewitness and that his evidence could not establish how the accident occurred. 2. The Defendants maintained that the accident was caused by an unidentified pickup which overlapped or overtook the Defendant’s vehicle. They further submitted that the Plaintiff had failed to call an eyewitness to establish negligence. 3. On special damages, the Defendants submitted that the receipts produced in respect of repairs amounted to **Kshs.272,400/=**, rather than the Kshs.287,400/= pleaded. They further submitted that there was no receipt for the alleged Kshs.5,000/= towing charge and that the assessment charge was supported only by an invoice. 4. On loss of income/user, the Defendants submitted that the Plaintiff had failed to produce books of account demonstrating income of Kshs.6,000/= per day. They urged the Court to disallow that claim. 5. The Defendants consequently urged the Court to dismiss the suit with costs. **Analysis and Determination** 1. From the pleadings, evidence and submissions, the following issues arise for determination: 1. Whether the accident was caused by the negligence of the 2nd Defendant; 2. Whether the 1st Defendant is vicariously liable for the acts of the 2nd Defendant; 3. Whether the Plaintiff has proved the special damages claimed; 4. Whether the Plaintiff is entitled to Kshs.180,000/= for loss of user; 5. Whether the doctrine of subrogation is applicable; and 6. Who should bear the costs of the suit. **Liability** 1. The burden of proof in civil proceedings rests upon the party who asserts a fact. Sections 107, 108 and 109 of the Evidence Act embody the principle that the person who alleges a fact must prove it. The standard of proof is on a balance of probabilities. 2. It is not disputed that an accident occurred involving the Plaintiff’s motor vehicle and the Defendant’s motor vehicle. The dispute is principally as to how the accident occurred and who was responsible. 3. I accept the Defendants’ submission that PW2 was not an eyewitness. His evidence concerning the manner of occurrence of the accident was therefore not direct evidence. A police abstract is evidence that an accident was reported and of the information recorded therein; it does not, standing alone, conclusively establish negligence. 4. The Court must nevertheless consider the entirety of the evidence. DW1 was himself the driver of the Defendant’s vehicle and his evidence is therefore material. 5. DW1’s evidence was that an unidentified vehicle approached him at high speed, overlapped or overtook him, and that when he attempted to avoid it, he lost control of his vehicle. 6. The admission that he lost control of the vehicle is significant. A driver has a duty to maintain proper control of a motor vehicle and to take reasonable steps to avoid an accident. DW1 did not give sufficient evidence demonstrating what evasive action he took or why, despite that action, he lost control. 7. DW1 also admitted that he was travelling at between 60–80 KM/H, but did not know the applicable speed limit. His assertion on re-examination that there was no speed-limit sign does not, in itself, establish that the speed at which he was travelling was safe and reasonable in the circumstances. 8. The unidentified pickup driver was not called as a Witness. No independent eyewitness was called by the Defence to corroborate DW1’s version. DW1 himself confirmed that he had not called any other witness. 9. I therefore find that the Defence version remains substantially uncorroborated. The allegation that an unidentified vehicle caused the accident is not sufficient, without more, to displace the Plaintiff’s evidence and the material admissions made by DW1. 10. On the totality of the evidence, I find that the Plaintiff has proved, on a balance of probabilities, that the 2nd Defendant failed to maintain proper control of the motor vehicle and that his negligence materially contributed to the accident. **Vicarious Liability of the 1st Defendant** 1. Having found the 2nd Defendant negligent, the next question is whether the 1st Defendant is vicariously liable for his negligence. 2. The doctrine of vicarious liability is founded upon the relationship between the person who committed the tort and the person sought to be held liable. In the case of a motor vehicle, the established test is whether the driver was the owner's servant or, at the material time, was acting on the owner's behalf as his agent. 3. The leading authority is **Morgans v Launchbury [1972] 2 All ER 606**, which was adopted by the Court of Appeal in **Khayigila v Gigi & Co. Ltd & Another [1987] KECA 53 (KLR)**. The Court held that to fix liability upon the owner of a Motor Vehicle for the negligence of its driver, it is necessary to show either that the driver was the owner's servant or that, at the material time, he was acting on the owner's behalf as his agent. 4. The same principle was reaffirmed by the Court of Appeal in **BM Security Limited v Kibira & Another [2025] KECA 166 (KLR)**, where the Court reiterated that a master is vicariously liable for the negligence of his servant committed in the course and within the scope of employment. 5. The Court must therefore determine whether, on the evidence, the 2nd Defendant was acting as the servant or agent of the 1st Defendant when he was driving Motor Vehicle KCV 071Y. 6. The Plaintiff pleaded that the 1st Defendant was the registered owner of motor vehicle KCV 071Y and that the 2nd Defendant was its driver. The 2nd Defendant himself confirmed in evidence that he was the driver of the vehicle at the material time. 7. Significantly, no evidence was tendered by the 1st Defendant to dispute the relationship between him and the 2nd Defendant. The 1st Defendant did not testify. No witness was called on his behalf to state that the 2nd Defendant was an independent contractor, a borrower, a stranger to the vehicle or that he was driving the vehicle for purposes wholly unrelated to the 1st Defendant. 8. There was equally no evidence that the 2nd Defendant had taken possession of the vehicle without the authority of the 1st Defendant or that he was on a personal frolic wholly disconnected from the interests or purposes of the 1st Defendant. 9. I am alive to the principle in***Khayigila v Gigi & Co. Ltd & Another*,** that mere ownership of a Motor Vehicle does not automatically render the owner vicariously liable for every act of a person driving it. The Court of Appeal made clear that the driver must have been acting as the owner's servant or agent, or for the owner's benefit. 10. The present case, however, is distinguishable from a case where there is evidence that the driver was using the vehicle purely for his own purposes. There is no such evidence here. 11. The Defendants pleaded that the 2nd Defendant was the driver of KCV 071Y and the 2nd Defendant admitted as much in his testimony. If the Defendants intended to dispute the pleaded master-servant or agency relationship, they were best placed to place before the Court evidence explaining the capacity in which the 2nd Defendant was driving the 1st Defendant's vehicle. 12. They did not do so. 13. The evidential position is therefore that the 1st Defendant was the owner of the vehicle, the 2nd Defendant was driving it at the material time, and no evidence was tendered to rebut the inference that the 2nd Defendant was driving the vehicle as the servant or agent of the 1st Defendant. 14. I accordingly find, on a balance of probabilities, that the 2nd Defendant was acting as the servant and/or agent of the 1st Defendant when he was driving Motor Vehicle KCV 071Y at the material time. 15. The negligent act was therefore committed in the course of the relationship between the 1st Defendant and the 2nd Defendant. The 1st Defendant is consequently vicariously liable for the negligence of the 2nd Defendant. 16. I accordingly find the 1st and 2nd Defendants jointly and severally liable at 100% for the accident and the resultant damage. **Doctrine of Subrogation** 1. The issue of subrogation arises in the context of the Plaintiff’s claim for damage to the motor vehicle. It is important, however, to distinguish a direct claim by the owner of damaged property from a subrogated claim brought for the benefit of an insurer. 2. The doctrine of subrogation is an established principle of insurance law. It permits an insurer, after indemnifying its insured for a loss covered by the insurance contract, to step into the shoes of the insured and exercise the rights and remedies which the insured has against the third party responsible for the loss. 3. In **Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] KECA 112 (KLR)**, the Court of Appeal explained that the essence of subrogation is that, after compensating the insured, the insurer steps into the shoes of the insured and becomes entitled to the rights and remedies available to the insured against the third party in respect of the loss compensated. The Court further reaffirmed the principle that an insurer does not acquire a greater right than that possessed by the insured. 4. The Court of Appeal's position is also that an insurer cannot ordinarily institute a subrogated action in its own name against the third party. The action is founded upon the insured's cause of action. 5. The doctrine is, however, not triggered merely by the existence of an insurance policy. There must be an operative contract of indemnity and actual indemnification of the insured. In **Egypt Air Corporation v Sufish International Food Processors (U) Ltd & Another [1999] 1 EA 69**, the Court explained that subrogation derives its life from the contract of indemnity and gains operative force from payment under that contract. The same principle has subsequently been reaffirmed by the High Court. 6. In the present matter, there is no evidence before the Court that the Plaintiff was indemnified by an insurer in respect of the damage claimed. There is also no evidence of any payment by an insurer, nor has the Plaintiff's claim been presented as one brought in the name of an insured for the benefit of an insurer. 7. I therefore find that the doctrine of subrogation is not directly applicable to the determination of this claim. The Plaintiff's claim is properly considered as a direct claim by the owner of the damaged motor vehicle. 8. This finding does not detract from the Plaintiff's entitlement to recover proven loss. It merely means that the Court is not required to determine any competing right between the Plaintiff and an insurer. **Special Damages** 1. The Plaintiff pleaded Special Damages of **Kshs.293,050/=**. The law is settled that Special Damages must be specifically pleaded and strictly proved. 2. The Court of Appeal in **Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] KECA 20 (KLR)** considered a claim arising from damage to a Motor Vehicle and the evidential value of a Motor Vehicle Assessor's Report. The Court recognised that an assessor's report is relevant evidence of the nature and extent of damage and the cost of repair. 3. In the present case, however, the Defendants have specifically challenged the amounts proved by receipts. 4. The evidence establishes repair expenses of **Kshs.272,950/=**, whereas the Plaintiff pleaded Kshs.287,400/= under that head. The difference of Kshs.14,450/= has not been strictly proved. 5. The Plaintiff claims Kshs.5,000/= as a Motor Assessment fee. The only evidence produced in support of this claim is a fee note/invoice. A fee note or invoice merely shows the amount charged; it does not, without proof of payment, establish that the expense was actually incurred. The law is settled that special damages must be specifically pleaded and strictly proved. See **Hahn v Singh [1985] KLR 716**.In the absence of a receipt or other evidence demonstrating payment of the assessment fee, the sum of Kshs.5,000/= has not been strictly proved and is therefore disallowed. 6. The Plaintiff also claimed Kshs.550/= as the Motor Vehicle inquiry fee and Kshs.100/= for the Police Abstract. The amount of Motor Vehicle Inquiry is supported by a receipt of Kshs.550.00 while the amount of Kshs.100.00 for the Police Abstract is not supported and I disallow it . 7. I therefore find the following special damages proved: Towing and repair expenses ........................................ **Kshs.272,950.00** **Vehicle inquiry fees..............................................................Kshs.550.00** Police Abstract......................................................................not proved Assessment report .................................................................not proved Total ................................................................................**Kshs.273,500.00** 1. The Plaintiff is therefore entitled to **Kshs.273,500/=** as special damages. **Loss of User** 1. The Plaintiff pleaded a claim of Kshs. 180,000/= for loss of user, calculated at Kshs. 6,000/= per day for a period of 30 days. The issue for determination is whether the Plaintiff is entitled to the claimed amount or any award under this head. 2. The law is settled that loss of user is a claim in the nature of special damages and must be specifically pleaded and strictly proved. In **Ndugu Transport Company Limited & another v Daniel Mwangi Waithaka Leteipa [2018] KEHC 5672 (KLR)**, the Court considered a claim for loss of user in respect of a PSV and emphasised that the Court cannot make an award based on speculation where the alleged daily earnings have not been satisfactorily proved. The Court specifically considered and rejected the basis upon which a global award of Kshs. 200,000/= had been made in the absence of adequate proof of the claimed daily earnings. 3. Similarly, in **David Bagine v Martin Bundi, Civil Appeal No. 283 of 1996**, the Court of Appeal affirmed the principle that special damages must be specifically pleaded and strictly proved. 4. However, the present case must be considered in light of the nature of the subject motor vehicle. The Plaintiff established that the vehicle was a Public Service Vehicle (PSV) and was therefore used for commercial purposes and the generation of income. It is also established that following the accident, the vehicle was damaged and was consequently unavailable for use while undergoing repairs. 5. The Court must distinguish between the failure to prove the precise amount of daily income and the fact that an income-generating vehicle was deprived of the opportunity to operate during the period of repairs. In this case, although the Plaintiff did not produce books of account, daily collection records or other documentary evidence sufficient to prove the pleaded sum of Kshs. 6,000/= per day, the fact that the PSV was unavailable for commercial operations during the period of repair establishes that some loss of income was suffered. 6. In **Matunda Fruits Bus Services Ltd v Moses Wangila Wangila & another [2018] KEHC 3225 (KLR)**, the Court considered a claim for loss of user by a PSV operator and recognised that where a commercial vehicle is damaged and taken off the road for repairs, the owner is entitled to compensation for the income lost during the period reasonably required for repairs. The Court, however, stressed that the loss must be confined to the period reasonably necessary for repairs and that a claimant has a duty to mitigate the loss. The Court also recognised that the award must reflect the net income or profit rather than gross earnings. 7. Further, in **Omocha Enterprises Limited & another v Mwebi (Civil Appeal E114 of 2024) [2025] KEHC 6553 (KLR)**, the High Court awarded Kshs. 102,000/= for loss of user, calculated at Kshs. 6,000/= per day for 17 days. The decision demonstrates that where the commercial use of a vehicle, the period it was unavailable and the applicable daily loss are established, the Court may compensate the owner for the loss suffered during the period the vehicle is reasonably out of operation. 8. I have also considered **Guardian Coach Limited v Matunda (Fruits) Bus Services Limited (Civil Appeal 242 of 2020) [2024] KEHC 5793 (KLR)**, in which the Court disallowed a claim for loss of use notwithstanding that the vehicle was used for public transport because the claimant failed to satisfactorily establish the period for which the vehicle was unavailable and the claim remained unproved. The decision underscores the need for a factual basis for the award even where the vehicle is a commercial or income-generating vehicle. 9. In the present case, I am not satisfied that the Plaintiff strictly proved the precise daily income of Kshs. 6,000/= or the full claim of Kshs. 180,000/= for 30 days. The Plaintiff is therefore not entitled to the entire sum claimed as specifically pleaded. 10. Nevertheless, I find that the Plaintiff established that the subject vehicle was a PSV and that, as a result of the accident, it was taken off the road for repairs. The Court cannot ignore the fact that a commercial vehicle ordinarily generates income and that its owner was deprived of that income during the period it was undergoing repairs. The circumstances therefore distinguish this case from one in which no loss whatsoever has been established. 11. I must, however, avoid speculation and ensure that the award is reasonable, modest and supported by the circumstances of the case. Taking into account the commercial nature of the PSV, the fact that it was unavailable while undergoing repairs, the failure to strictly prove the precise daily income of Kshs. 6,000/=, the reasonable period required for repairs and the Plaintiff's duty to mitigate the loss, I find that a global award is appropriate. 12. I accordingly award the Plaintiff a global sum of Kshs. 90,000/= for loss of user. 13. The award takes into account that the Plaintiff lost income while the PSV was under repair but also reflects the absence of documentary evidence establishing the precise daily earnings or net profit. I consider the sum fair and reasonable in the circumstances. **Conclusion** 1. Having considered the Pleadings, oral and documentary evidence and the submissions of the parties, I find that the Plaintiff has proved her case on a balance of probabilities. 2. The 2nd Defendant was the driver of the 1st Defendant's motor vehicle and, on his own evidence, lost control of it after encountering another vehicle. His explanation was not corroborated by any independent evidence. 3. I find that the 2nd Defendant was negligent and that his negligence caused the accident. 4. I further find that the 2nd Defendant was acting as the servant and/or agent of the 1st Defendant. 5. The 1st Defendant is therefore vicariously liable for the negligence of the 2nd Defendant. 6. The Plaintiff has proved Special Damages of **Kshs. 273,050/=.** 7. The Plaintiff is entitled to a Global Award of **Kshs. 90,000/=** for loss of user. 8. The total award is therefore **Kshs. 363,050/=**. **Disposition** 1. Judgment is hereby entered for the Plaintiff against the 1st and 2nd Defendants jointly and severally as follows: * 1. **Special damages** ............................................ Kshs. 273,050.00 2. **Loss of user** ......................................................... Kshs. 90,000.00 3. **Total award** ...................................................... **Kshs. 363,050.00** 91)Interest on the Special Damages of Kshs. 273,050/= at Court rates from the date of filing suit until payment in full; 92) Interest on the award for loss of user of Kshs. 90,000/= at Court rates from the date of judgment until payment in full; and 93) Costs of the suit to the Plaintiff. 94)The Plaintiff's claim is accordingly allowed to the extent stated above. 30 days right of Appeal **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **26.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH DAY OF AUGUST,2026** **In the presence of :** M/s Gathoni Holding Brief for M/s Mbaabu for the Plaintiff M/s Tusasirwe Holding Brief for Mr.Njenga for the Defendant Court Assistant: Phoebe.