https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12113

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **CIVIL APPEAL NO. E020 OF 2025** **SHARAF LOGISTICS LIMITED…………………….........APPELLANT** **-VERSUS-** **ROBERT CONTRACTORS LIMITED………………….RESPONDENT** *(Being an appeal from the judgment and decree of Hon. M. L. Nabibya, Senior Principal Magistrate, delivered on 17th October 2024 in Mombasa Chief Magistrate's Court Civil Case No. 827 of 2018)* **JUDGMENT** **Introduction** 1. Robert Contractors Limited, the respondent, was the plaintiff in Mombasa Chief Magistrate's Court Civil Case No. 827 of 2018. It sued Sharaf Logistics Limited, the appellant, for the material damage occasioned to its motor vehicle registration number KBR 172Y, a Toyota Hilux pick-up, in a road traffic accident which occurred on 27th April 2015 along Nkurumah Road, Mombasa, and in which that vehicle was struck by a Howo tanker identified by its chassis number, LZZ5BLNF8FN939228. The respondent's motor vehicle was insured by Jubilee Insurance Company of Kenya Ltd, which indemnified it, and the suit was brought in the exercise of the insurer's right of subrogation. 2. By a judgment delivered on 17th October 2024 the trial court (Hon. M. L. Nabibya, Senior Principal Magistrate) found the appellant to have been the owner of the tanker, held it liable for the accident, and awarded the respondent the sum pleaded, Kshs. 357,433.00, together with interest and costs. The appellant, aggrieved, brought this appeal by a memorandum of appeal dated 3rd February 2025. 3. Two preliminary matters may be disposed of at once, for although neither party raised them, the competence of an appeal is always the concern of the court. First, a certified copy of the decree, dated 19th December 2024, is on the record of appeal, so that the appeal does not fail for want of a decree. Secondly, the judgment having been delivered on 17th October 2024 and the memorandum of appeal filed on 3rd February 2025, the appeal was lodged out of the time prescribed by section 79G of the Civil Procedure Act; but the appellant obtained leave to appeal out of time, granted by consent, by an order of this court (Mutai J) of 3rd February 2025 in Mombasa HCC Misc. Application No. E011 of 2025. The appeal is therefore properly before me. It was canvassed by way of written submissions, those of the appellant dated 4th August 2025 and those of the respondent dated 13th November 2025, and I have considered them together with the authorities relied upon and the record of appeal. **The case before the trial court** 4. By its plaint dated 25th April 2018 the respondent pleaded, at paragraph 3, that it was the registered, insured and/or beneficial owner of motor vehicle KBR 172Y and that the appellant was the registered, insured and/or beneficial owner of the Howo tanker of chassis number LZZ5BLNF8FN939228. At paragraph 4 it pleaded that the appellant's driver, servant or agent so carelessly or negligently drove the tanker as to cause it to strike and damage the respondent's vehicle, adding that the full particulars of the accident were within the appellant's knowledge. Paragraph 6 set out particulars of negligence and pleaded, in addition, reliance on the doctrine of res ipsa loquitur. The special damages were pleaded, specifically and by amount, under three heads: repair charges, Kshs. 303,333.00; assessment and re-inspection fees, Kshs. 8,700.00; and investigator's fees, Kshs. 45,400.00; making, in all, Kshs. 357,433.00. 5. By its defence dated 15th May 2018 the appellant denied the accident, denied negligence, and denied that it owned the tanker or that the driver was its servant or agent. Its positive case was that it is a clearing and forwarding company; that its role was confined to clearing the tanker from the Port of Mombasa; and that, once cleared, the vehicle was released to Hansom Eastern Investment Co. (U) Ltd, an entity said to be unconnected with it. 6. The respondent called four witnesses. PW1, No. 84805 PC Vincent Abenge of Central Police Station, testified that on 27th April 2015 an accident occurred at about 4.20 p.m. at Cooperative Bank along Nkurumah Road, involving the Howo tanker and the respondent's pick-up KBR 172Y; that the tanker's driver, one Patrick Bunga, was blamed for causing the accident; and he produced the police abstract dated 28th April 2015 as P Exhibit 1. In cross-examination he stated that the tanker was joining Nkurumah Road and “took a long turn hitting the vehicle KBR 172”; that the accident was at a road junction; that “the tank must stop to show the road was clear”; and that the pick-up was hit on its right rear. He conceded, importantly, that he was not the investigating officer and had not visited the scene. In re-examination he maintained that the tanker was to blame. 7. PW2, Amani Michael Jackson of Jubilee Insurance, produced the policy schedule (P Exhibit 2) and the motor vehicle accident report form (P Exhibit 3), and testified to the appointment of Express Auto Assessors, the assessment report of 20th May 2015 and the re-inspection report of 17th September 2015, the assessment and re-inspection fee notes, and the sum of Kshs. 303,333.00 paid to Toyota (K) Ltd as the cost of repairs (P Exhibits 8(a) and 8(b)). He produced the investigator's invoice of Kshs. 45,400.00 (P Exhibit 10) and confirmed that the respondent had been fully indemnified and that the suit was brought on the insurer's subrogation rights. PW3, Sammy Mwenda, the loss assessor of Express Auto Assessors, produced the assessment and re-inspection reports (P Exhibits 4 and 5) and stated in re-examination that the vehicle was struck on the right rear. PW4, Benard Kioko Kalei, the insurance investigator, produced his report of 6th November 2015 (P Exhibit 9), having been instructed to establish the whereabouts of the appellant as owner of the tanker. 8. The appellant called one witness, DW1, Farid Omar, described as a clearing and forwarding officer of the appellant. It is material to record what became of the appellant's documentary case. On 24th April 2024, the plaintiff's case having long closed, the appellant sought to produce a bundle of documents and more than one witness statement filed only two days earlier, without leave. The trial court disallowed them, ruling that a bundle of documents and further witness statements filed after the close of the plaintiff's case, without leave, would prejudice the plaintiff, and it expunged them. That ruling has not been appealed. DW1's evidence was therefore confined to his oral testimony. In cross-examination he said that an accident had occurred between the two vehicles but that he did not know who was driving the tanker at the time and could not say who was to blame. **The judgment of the trial court** 9. The learned trial magistrate found that an accident had occurred; that, according to the police abstract, the owner of the truck was to blame and the appellant was that owner; and that, although the insured had not testified, the evidence of PW2 remained unchallenged. She found that the damage to and repair of the respondent's vehicle were uncontroverted, that the appellant had not displaced the fact that it owned the tanker, and that, under the doctrine of subrogation, the suit succeeded. She allowed the claim as presented, which carried the sum of Kshs. 357,433.00, interest and costs. **The memorandum of appeal** 10. The memorandum of appeal dated 3rd February 2025 raises seven grounds. Shortly stated, they are that the learned trial magistrate erred in law and in fact: 1. in finding that the appellant was the owner of the tanker of chassis number LZZ5BLNF8FN939228 and thus liable for the accident; 2. in finding that the driver of that tanker was the agent or servant of the appellant so as to render it vicariously liable; 3. in finding that the proof tendered by the respondent in support of the negligence claim was sufficient to sustain it; 4. in finding that the respondent's evidence was unchallenged; 5. in finding that the respondent had pleaded and proved the special damages of Kshs. 357,433.00; 6. in awarding costs to the respondent; and 7. in delivering a judgment contrary to the pleadings, evidence and submissions, which failed to make proper findings, was against the weight of the evidence, and failed properly to consider the appellant's submissions. **The duty of this Honourable Court** 11. This being a first appeal, my duty is to reconsider the whole of the evidence tendered before the trial court, to evaluate it afresh and to draw my own independent conclusions, while bearing in mind that I neither saw nor heard the witnesses and making due allowance in that respect: Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123. That duty is, however, tempered by a corresponding restraint. I may interfere with the findings of the trial court only where they are shown to be based on no evidence, or upon a misapprehension of the evidence, or where the court is demonstrably shown to have acted upon wrong principles: Peters v Sunday Post Ltd [1958] EA 424; Ephantus Mwangi & another v Duncan Mwangi Wambugu [1982-88] 1 KAR 278. As the Court of Appeal cautioned in Peters, where the evidence as a whole can reasonably be regarded as justifying the conclusion reached by the tribunal that saw and heard the witnesses, the appellate court will not interfere merely because, on the printed record, it might have reached a different view. **Issues for determination** 12. The seven grounds resolve into the following questions: a) Whether the appellant was proved to be the owner of the tanker (ground 1); b) Whether the driver was the appellant's servant or agent so as to found vicarious liability (ground 2); c) Whether the respondent proved negligence to the required standard, and whether the trial court's treatment of the evidence as “unchallenged” vitiates the judgment (grounds 3, 4 and 7); d) Whether the special damages were specifically pleaded and strictly proved (ground 5); e) Whether the trial court erred in awarding costs (ground 6); and f) What orders ought to issue. **Analysis and determination** ***(a) Ownership of the tanker (ground 1)*** 13. The legal burden of proving that the appellant owned the tanker lay on the respondent: sections 107 and 108 of the Evidence Act, Chapter 80. But the respondent did not confine itself to registered ownership. It pleaded, in the alternative, registered, insured and/or beneficial ownership, and that pleading is significant, because ownership of a motor vehicle is not established by the register alone. Section 8 of the Traffic Act, Chapter 403, recognises that a person other than the registered owner may be the true owner, and judicial practice has developed the concepts of actual, beneficial and possessory ownership to describe such interests. In Nancy Ayemba Ngaira v Abdi Ali [2010] KEHC 1866 (KLR), on which the respondent relied, Ojwang J (as he then was) explained that a person who enjoys beneficial or possessory ownership “may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration”; and see, to like effect, Securicor Kenya Limited v Kyumba Holdings Limited [2005] 1 KLR 748. 14. This was, moreover, a case in which registered ownership could not have been proved by a Kenyan certificate at all, for the tanker was not registered in Kenya; it bore no Kenyan registration mark and is identified throughout by its chassis number. The evidence of ownership therefore had necessarily to be of the alternative kind. 15. On that question there was evidence pointing to the appellant. The police abstract named the appellant as owner; the investigation report of 6th November 2015 (P Exhibit 9) concluded that the appellant was the owner of the Howo tanker; and the appellant's own case placed the vehicle in its hands, for it admitted, through DW1 and in its defence, that it had cleared this very tanker from the Port of Mombasa. Clearing a vehicle from the port is the assumption of possession and control of it. On its own account, therefore, the appellant had possession of the tanker. 16. The appellant's answer was that it had released the vehicle to Hansom Eastern Investment Co. (U) Ltd before the accident. That was an affirmative assertion, and the identity of its principal, the terms on which it acted and the moment at which possession passed were all facts especially within its own knowledge: section 112 of the Evidence Act; Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334. Having raised the assertion, the appellant bore the evidential burden of making it good. It did not. Its documentary bundle, which might have contained the clearing instructions, the transit papers or a release note, was expunged for having been filed years late and without leave, a ruling it has not appealed; and even leaving those documents aside, DW1 could say nothing of substance. He did not identify Hansom Eastern Investment Co. (U) Ltd's interest, produce any dealing with it, or explain when or how possession passed. The appellant did not join that company as a third party and did not apply to be struck out as wrongly sued. 17. The appellant urged that the abstract, being challenged, could not by itself prove ownership, relying on Wellington Nganga Muthiora v Akamba Public Road Services Ltd & another [2010] eKLR and Mega Industries Limited v Jane Jerotich [2020] eKLR; and it is true that, once challenged, an abstract must be supported by other proof. But here there was other proof: the investigation report, the appellant's admitted possession of the vehicle, and its failure to displace the ownership so established. Petrocity Enterprises (U) Ltd v Roseline Sikudi & 2 others [2017] eKLR, on which the appellant also relied, does not assist it; there the records of the Uganda Revenue Authority were available and pointed elsewhere, whereas here no registry, Kenyan or Ugandan, was shown to hold any record of the vehicle, and the case was one of possessory and beneficial, not registered, ownership. As for the criticism that the investigation report was not binding, that is correct as far as it goes, an expert's opinion being always subject to the court's own assessment (Parvin Singh Dhalay v Republic [1997] eKLR); but the report was not the sole foundation of the finding, and it was entitled to weight alongside the abstract and the appellant's admissions. 18. On a re-evaluation of the whole of this evidence I am satisfied that the finding that the appellant was, at the material time, the beneficial and possessory owner of the tanker was amply open to the trial court. Ground 1 fails. **(b) Whether the driver was the appellant's servant or agent (ground 2)** 19. Proof of ownership raises a rebuttable presumption that, at the time of the accident, the vehicle was being driven by the owner's servant or agent in the course of the employment or agency. The presumption is one of fact, and it lies on the owner to displace it, since the identity of the driver and the business on which he was engaged are matters within the owner's knowledge. The appellant, having been found to be the owner, did nothing to rebut the presumption. It did not say who was driving the tanker, did not suggest that the driver was a stranger or an interloper, and did not call the driver, Patrick Bunga, who was named in evidence. DW1 professed simple ignorance of who was driving. 20. The appellant invoked Joseph Njuguna v Cyrus Njathi [1999] eKLR for the proposition that vicarious liability requires proof both that the driver committed a tort and that he was the owner's servant or agent. That is a correct statement of the law, and I apply it. The first limb is established under the next issue; the second is established by the unrebutted presumption arising from ownership. Ground 2 fails. ***(*c) Negligence, and the “unchallenged” finding (grounds 3, 4 and 7)** 21. It is convenient to take these grounds together, for the appellant's real complaint is a single one: that the respondent did not prove how the accident happened, and that the trial court, by treating the respondent's evidence as unchallenged, relieved itself of the duty to weigh the matter. 22. I begin with the criticism of the trial court's language, because it has some force. The statement that “the evidence of PW2 remains unchallenged” was, taken literally, inaccurate: the appellant had filed a defence, cross-examined the respondent's witnesses and called a witness of its own, and its evidence was in that sense challenged. Had the trial court used that phrase to shut out the defence case from consideration, the criticism would be well founded. But two things must be said. First, PW2 was the insurance witness, and his evidence went to the policy, the assessment, the repairs and the subrogation, matters which the defence did not in truth contradict at all. Secondly, and in any event, the office of a first appellate court is precisely to cure such a defect by re-evaluating the evidence for itself. A loosely expressed finding does not vitiate a judgment if, on a fresh and independent scrutiny of the record, the result is sound. I therefore turn to that scrutiny. 23. The burden of proving negligence lay on the respondent throughout, and it is trite that negligence is not established by the bare fact of a collision. But the respondent's case was not the bare fact of a collision. There was evidence of the manner of the accident. PW1's account, most of it elicited in the appellant's own cross-examination, was that the tanker was joining Nkurumah Road at a junction and, in doing so, took a wide turn and struck the respondent's pick-up on its right rear; that it was a junction at which “the tank must stop to show the road was clear”; and that the tanker's driver was blamed. The motor vehicle accident report form recorded that the respondent's driver was not to blame. A vehicle joining a road at a junction is under a duty to give way and to satisfy itself that the road is clear before proceeding; a vehicle which, in breach of that duty, takes a wide turn across a junction and strikes another already on the road is, without more, prima facie negligent. 24. The appellant makes much of PW1's concession that he was not the investigating officer and had not visited the scene, and it relies on Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR. The concession is a real one and it goes to the weight of PW1's evidence, for his account of the mechanism was derived from the report rather than from personal observation. But it does not empty the respondent's case, for three reasons. First, the police abstract was admissible and, on the authorities, prima facie evidence of the matters recorded in it. Secondly, the manner of the tanker's driving was a matter peculiarly within the appellant's knowledge, a point the respondent had expressly pleaded, so that once a prima facie case was raised the evidential burden shifted to the appellant to answer it: Anne Wambui Ndiritu (above). Thirdly, and decisively, the appellant offered no answer at all. It called no eyewitness, gave no account of how the accident happened, and did not call its own driver, Patrick Bunga, who could have explained the manoeuvre if there were an innocent explanation for it. From that silence an adverse inference properly arises. Benter Atieno is distinguishable: there the plaintiff's evidence disclosed no credible basis at all from which negligence could be inferred, whereas here there was a described mechanism, an apportionment of blame, and a defendant who chose to say nothing. 25. The respondent had, in addition, pleaded res ipsa loquitur, and while I would not rest the decision on that maxim alone, it reinforces the conclusion. The principle it embodies, as explained in Embu Public Road Services Ltd v Riimi [1968] EA 22 and applied in P M M (minor suing through the mother and next friend M N M) v Family Bank Limited & another [2018] KEHC 2783 (KLR), is that where a vehicle behaves as this tanker did and no explanation is offered by the person in control of it, the driver's negligence may be presumed. As Odunga J put it in P M M, drivers driving carefully do not ordinarily lose control of, or misdirect, the vehicles in their charge; it is for the driver to explain, and where no explanation is forthcoming, negligence must be presumed. The appellant offered no explanation. 26. I have not overlooked that the respondent's own driver, the one eyewitness who could have described the accident from first-hand knowledge, was not called, the suit having been prosecuted by the subrogated insurer. That is a weakness in the respondent's case and I have weighed it. But it is not fatal. The respondent's burden was to prove negligence on a balance of probabilities, not beyond reasonable doubt, and it was open to it to discharge that burden by the abstract, the accident report, the account of the junction mechanism and the appellant's unexplained silence, taken together. Weighing the whole of the evidence for myself, I am satisfied that the respondent proved, on a balance of probabilities, that the accident was caused by the negligence of the tanker's driver. The trial court's finding to that effect, though thinly expressed, was supportable on the evidence, and there is no proper basis on which I may interfere with it. Grounds 3, 4 and 7 fail. 27. For completeness, I reject the discrete complaint under ground 7 that the trial court failed to consider the appellant's written submissions. A court is not bound to rehearse every submission addressed to it, and submissions are not evidence: Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. The appellant's case was considered and rejected; that its submissions were not separately catalogued is no ground of appeal. **(d) Special damages (ground 5)** 28. Special damages must be specifically pleaded and strictly proved: Hahn v Singh, Civil Appeal No. 42 of 1983, [1985] KLR 716; David Bagine v Martin Bundi [1997] KECA 54 (KLR). Both requirements were satisfied here. 29. As to pleading, the respondent set out the three heads of loss, each with its amount, in the particulars of loss in the plaint. The appellant's argument that only the “repair charges” were pleaded, and that the components of those charges, being parts, labour, paint and value added tax, were not, is misconceived. The plaint pleaded a single head, “repair charges”, in a single and precise sum, Kshs. 303,333.00. That is specific pleading. The invoice and the assessment report are not a further pleading requiring its own particulars; they are the proof of the sum pleaded, and they show how it was composed. Mwakureherwa v Jubilee Jumbo Hardware Limited (Civil Appeal E245 of 2021) [2023] KEHC 27544 (KLR), on which the appellant relied, is distinguishable: there the plaintiff sought the cost of spare parts over and above a pleaded claim for the cost of repairs, so that the parts were an unpleaded head; here there is no head beyond the Kshs. 303,333.00 pleaded, and every shilling of the invoice falls within it. 30. As to proof, this is not a case of an unpaid estimate. PW2 testified that the sum of Kshs. 303,333.00 was in fact paid to Toyota (K) Ltd as the cost of the repairs, and the payment was evidenced (P Exhibits 8(a) and 8(b)); the assessment and re-inspection reports were produced and spoken to by the assessor himself, PW3; and the investigator's fee of Kshs. 45,400.00 was evidenced by invoice (P Exhibit 10). That is precisely the quality of proof whose absence was fatal in David Bagine, where an award of repair costs founded on nothing better than an unproven estimate was set aside. Here the repairs were assessed by an assessor who testified, and they were paid. The requirement of strict proof was met. 31. I add one observation. The respondent's submissions attribute to David Bagine a passage to the effect that an assessor's report is sufficient proof and the absence of repair receipts is not fatal. No such passage appears in that judgment, whose result was in fact to set the award aside. Counsel must cite authority with care. The error is, in the event, immaterial, because the respondent's proof did not depend on the misquoted proposition: the repairs here were not merely assessed but paid. Ground 5 fails. **(e) Costs (ground 6)** 32. Costs are in the discretion of the court but ordinarily follow the event: section 27 of the Civil Procedure Act. The respondent having succeeded, costs properly followed, and no error of principle in the exercise of the trial court's discretion has been shown. Ground 6 fails. **Disposition** 33. Every ground of appeal having failed, the appeal must be dismissed. On my own re-evaluation of the record, I am satisfied that the respondent proved the appellant's ownership of the tanker, the driver's negligence, the appellant's vicarious liability, and the special damages claimed, and that the trial court arrived at the right result. The infelicity in the expression of its judgment does not touch that result. 34. In the ultimate, I make the following orders: a) The appeal is dismissed. b) The judgment and decree of the trial court delivered on 17th October 2024 in Mombasa Chief Magistrate's Court Civil Case No. 827 of 2018 are affirmed. c) The decretal sum deposited in the joint interest-earning account pursuant to the order of this court of 3rd February 2025 in Mombasa HCC Misc. Application No. E011 of 2025, together with the interest accrued on it, shall be released to the respondent in satisfaction, to that extent, of the decree. d) The appellant shall bear the costs of the appeal. **Signed, dated and delivered at Mombasa on 31 July 2026.** Ngaah Jairus **JUDGE**