Sankare v Mungai & 2 others (Civil Case E4655 of 2025) [2026] SCC 176 (KLR) (10 July 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT MILIMANI** **SCCC NO. E4655 OF 2025** **KEVIN SAITOTI SANKARE ......................................................... CLAIMANT** **VERSUS** **STEPHEN THIIRU MUNGAI .............................................. 1ST RESPONDENT** **PETER NDIRANGU IRUNGU ........................................... 2ND RESPONDENT** **DICKSON WAMBUA MBUVI ........................................... 3RD RESPONDENT** **JUDGMENT** 1. The claimant herein has sued the respondents for compensation following a road traffic accident vide a statement of claim dated 24th July 2025. He claims that on 30th July 2022, he was driving his motor vehicle registration number KDE 994U along Outering road near Shell petrol station in Nairobi, when the 3rd respondent negligently drove the 1st and 2nd respondents’ motor vehicle registration number KCC 815N, causing it to ram into the rear of his vehicle. As a result of the accident, the claimant’s vehicle was extensively damaged. 2. The claim against the respondents was for special damages amounting to Kshs. 345,086/= for the following expenses; 1. Repair charges- Kshs. 230,840/= 2. Assessment charges- Kshs. 7,220/= 3. Re- Inspection charges- Kshs. 2,620/= 4. Car hire charges- Kshs. 60,000/= 5. Investigation charges- Kshs. 45,000/=. 3. Default judgment was entered against the 1st respondent who failed to enter appearance despite service. For their part, the 2nd and 3rd respondents, filed a response dated 28th August 2025 denying the entire claim. In the alternative, they averred that if the accident had occurred as alleged, it had been caused by the claimant’s negligence. 4. When the matter came up for hearing, a legal officer at GA insurance limited, Teresia Gatiku (CW1) and PC Anyula Okumu (CW2) testified in support of the claimant’s case. No witnesses were called to testify in support of the respondents’ case. **ISSUES, ANALYSIS AND DETERMINATION** 1. The two issues for determination in this case are the apportionment of liability and computation of special damages. 1. **LIABILITY** 2. The claimant blames the respondent’s driver for causing the accident. In his statement of claim, he averred that the accident occurred when the 3rd respondent rammed the respondents’ vehicle into the rear of his vehicle. The claimant did not give evidence on the circumstances that led to the occurrence of the accident. However, a police abstract was produced by CW2 to support the claim that the respondents’ vehicle was blamed for the accident. CW2 testified that the accident occurred at around 7:20 p.m. It had involved motor vehicles, KCJ 534 G Nissan Tiida, KDG 599U Mazda Azela and KCC 815F Isuzu minibus. He referred to the contents in the occurrence book to support the assertion that the respondents’ driver was found liable for the accident. 3. Although the respondents denied the occurrence of the accident, they did not adduce evidence to counter the claimant’s case. The consequences of the failure by the respondents to call a witness was discussed by the court in the case of [***Linus Nganga Kiongo & 3 Others V Town Council of Kikuyu Civil Case 79 OF 2011 [2012] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/3881/eng%402012-06-25)thus; *“The plaintiffs have given evidence on oath supported by documentary evidence which go to prove their case. Accordingly, in the absence of any evidence to the contrary and as proof in civil cases is on a balance of probabilities, I find that the plaintiffs are entitled to succeed.”* 1. Additionally, the respondents did not challenge the production of the police abstract. In the case of [***Swan Carriers Ltd v Damaris Wambui (Suing as the legal representative to the estate of the late Maritim Mwangi Ngirigasha [2019] KEHC 7717 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/7717/eng%402019-05-09)the court held that police are expected to conduct investigations before arriving at the decision as to who is to blame for the accident. The police abstract lifts the contents of the occurrence book where the findings of investigations are recorded. In the absence of evidence to the contrary the court will rely on the evidence adduced. 2. The claimant was only required to prove his case on a balance of probabilities. CW2’s evidence on the party to blame was not challenged by the respondent. Based on his evidence, the accident occurred at night when a driver is required to be doubly cautious and on the lookout for other road users. Further, a driver travelling behind another vehicle bears the heavier standard of care due to their unobstructed view of the the vehicle ahead of them. In this case, it has been proved on a balance of probabilities that the respondent’s driver drove negligently and as a result he caused the accident by ramming into the rear of the claimant’s vehicle. This court therefore finds that the claimant proved that the 3rd respondent was to blame for the accident and the 2nd respondent vicariously liable for his actions. Having entered interlocutory judgment against the 1st respondent, the issue of liability is resolved in the claimant’s favor. 3. **SPECIAL DAMAGES** 4. Turning to the issue of damages, the relief sought by the claimant against the respondents is in the nature of special damages. Special damages are not a natural consequence of the actions complained of and must therefore not only be specifically pleaded but must also be proved to a degree of certainty. (See ***[Hahn v Singh [1985] KECA 129 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1985/129/eng%401985-02-27)*** 5. It was claimed that a sum of Kshs. 230,840/= was spent on repair expenses. To prove these sums, the claimant produced a copy of a technical report which estimated the costs of repairs at a sum of Kshs. 230,840/=. An invoice for the cost of repairs was issued by St. Austin’s service center ltd and payment vouchers by GA insurance for the sum of Kshs. 230,840/=. 6. The claim for assessment charges was proved through the production of an invoice and receipt issued by Nordics Assessors for a sum of Kshs. 7,220/=. For re-inspection, the claimant sought a sum of Kshs. 2,620/=. These sums were proved through production of an invoice and receipt issued by Nordics Assessors. 7. A sum of Kshs. 60,000/= was sought for car hire services. To prove the expenditure a car hire contract, payment vouchers for a total sum of Kshs. 60,000/= and a receipt for the sum of Kshs. 60,000/= were produced. 8. The claimant also sought a sum of Kshs. 45,000/= being investigation charges. An investigation report and payment vouchers totaling to Kshs. 34,495/= were produced in support of the claim. The claimant therefore proved a total of Kshs. 335,175/= in special damages. **CONCLUSION** 1. In sum, judgment is entered in favor of the claimant against the respondents jointly and severally for a sum of Kshs. 335,175/= made up as follows; 1. Liability is entered wholly in favour of the claimant against the respondents; 2. Special damages- Kshs. 335,175/= 2. The above award shall attract interest at court rates from the date of filing suit, being 30th June 2022, until payment in full. 3. The claimant shall have the costs of this suit which are assessed at a sum of Kshs. 43,118/=. **DATED, SIGNED AND DELIVERED AT MURANG’A THIS 10TH DAY OF JULY 2026.** **HON. GRACE WAITHĨRA** **SENIOR RESIDENT MAGISTRATE/ADJUDICATOR** *JUDGMENT SENT VIA CTS PLATFORM IN ACCORDANCE WITH RULE 23 (4) (B) OF THE SMALL CLAIMS COURT RULES.* *THE EXECUTION OF THIS JUDGMENT IS STAYED FOR 30 DAYS.* *ANY AGGRIEVED PARTY HAS LEAVE TO EXERCISE THEIR RIGHT OF APPEAL WITHIN 30 DAYS OF THE DATE HEREOF.*