https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11171

Shreeji Enterprises (K) Limited v Simba Coach Limited (Civil Appeal E018 of 2024) [2026] KEHC 11171 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11171 (KLR) Republic of Kenya In the High Court at Garsen Civil Appeal E018 of 2024 JN Njagi, J July 16, 2026 Between Shreeji Enterprises (K) Limited Appellant and Simba Coach Limited Respondent (Being an Appeal from the judgment and decree of Hon. M. M. Wachira Principal Magistrate, in Lamu Princioal Magistrate`s Court Civil Case No. E011 of 2021 delivered on 18/7/2024) Judgment 1.The Appellant herein filed a suit against the Respondent seeking to recover a sum of Ksh.3,188,956/- being repair costs of its motor vehicle registration No. KBB after the same was hit and damaged by a motor vehicle belonging to the Respondent. The trial court found the Respondent liable for the accident and awarded the Appellant Kshs. 1, 183, 098/- for loss of user of the motor vehicle during the repair period and a further Ksh.25,000/= being the charges for assessment of the motor vehicle by a motor vehicle assessor. The court however dismissed the claim on repair of the motor vehicle on the ground that there was no proof of payment of the sum claimed. The court found that the Appellant only produced an invoice in support of the claim which is not proof of payment. The Appellant was aggrieved by the dismissal of the claim and lodged the instant appeal. 2.The grounds of appeal are that:1.The learned trial magistrate erred in law and fact in disallowing the Plaintiff’s prayer for the cost of material damage occasioned to the subject motor vehicle KBB 389H in the sum of Kshs. 3,188,956/- despite the appellant’s evidence in support of the claim.2.That the learned trial magistrate erred in law and fact in finding that the assessor’s report and the accompanying invoice was insufficient to prove the cost of the repairs.3.That the learned trial magistrate erred in law and fact by ignoring the fact that a motor vehicle Assessor’s report was sufficient proof of a claim for repair costs and production of receipts for such repairs was not mandatory.4.That the learned trial magistrate erred in law and fact in failing to appreciate that the appellant’s evidence was not controverted. 3.The appellant sought to have the order of the trial court set aside and they be awarded the sum of Kshs. 3,188,956/- and costs of the appeal. Case for Appellant 4.The case for the Appellant is that after the accident the motor vehicle was assessed by a qualified motor assessor PW2 who assessed the cost of repair at Kshs. 2,241,136/- inclusive of 16% VAT and prepared an assessment report to that end. 5.The Appellant called two material witnesses in the case. An administration clerk at the Appellant`s office Duncan Obiero Owino PW3 told the court that the subject motor vehicle was extensively damaged during the accident and was repaired by Delta Automobile Limited. The repairers issued them with an invoice of Ksh.3,188,956/- which sum the Appellant paid. The witness produced the invoice in court as exhibit. 6.The motor vehicle assessor PW2 testified that he assessed the motor vehicle and prepared an assessment report. The cost of repair was Kshs. 2,241,136/- inclusive of 16% VAT. He produced his report in court as exhibit. Submissions 7.The appeal was canvassed by way of written submissions. Appellant’s submissions 8.The Appellant through counsel submitted that the appellant had proved its case as the trial court held that liability had been sufficiently proved. That the appellant had equally proved special damages of the repair costs of Ksh.3,188,956/- by production of an Assessment Report and an invoice dated 1st October, 2021 for the stated amount. 9.Counsel submitted that the trial magistrate failed to notice the ETR receipt from Delta Automobiles Limited which was evidence of payment of the repair costs thereby reaching a wrong decision. That the receipt was sufficient proof of payment of the repairs occasioned to its motor vehicle. 10.It was further submitted that the appellant only needed to prove that its motor vehicle was damaged during the accident which was done by the testimony of PW2, the licensed motor vehicle assessor who produced the Assessment Report (Exhibit 3). Counsel relied on the case of Nkuene Dairy Farmers Co-Operative Society & Anor v Ngacha Ndeiya (2010) eKLR where the Court of Appeal held-:“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. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty.” 11.He further relied on the case of David Bagine v Martin Bundi (1996) eKLR where the Court of Appeal in asserting the probative value of an assessor’s report reiterated that:“The assessor’s report was sufficient proof and the failure to provide receipts for any repairs done was not fatal to the respondent’s claim.” 12.In the end, counsel submitted that there was sufficient proof of payment of the repair costs to Delta Automobile Limited where the motor vehicle was repaired and that it had discharged the burden of proof that was placed on them. Counsel urged the court to find that the trial court erred in finding that the appellant failed to prove its claim for repair costs. 13.On whether the appellant was entitled to the special damages for the repair costs, he submitted that the appellant was required to show the extent of the damage to its motor vehicle and the cost incurred to restore the motor vehicle to as near as possible the condition it was before the material damage. He relied on the decision in the case of Murage v Equity Bank Limited (Civil Appeal 125 of 2023) (2024) where the court followed the principles established in Nkuene Dairy Farmer`s case and the David Bagine v Martin Bundi case and held that:“It is therefore clear that the appellant only needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that the repairs were actually done and paid for. In civil cases, the burden of proof on the appellant is at all times on a balance of probabilities and not beyond reasonable doubt. The value of the damage was assessed by PW2 and he produced a report in support of his evidence whose authenticity was not challenged. The respondent did not adduce any evidence to counter that of the appellant. It was therefore not necessary to demonstrate that indeed the costs of repairs were incurred because the report was sufficient proof on a balance of probabilities. Relying on the Court of Appeal cases (supra), the report of the assessor who is an expert is in my view, sufficient proof of loss incurred by the appellant…” 14.The Appellant urged the court to award them the sum claimed. Respondent’s submissions 15.The Respondent on the other hand submitted through counsel on two issues - whether the appellant had proved its case and whether the appellant is entitled to the special damages for the repair costs. 16.On whether the appellant proved its case, counsel submitted that the appellant had not proved its case as they failed to prove that they spent the monies claimed for repair costs and as such they should not be awarded the amount pleaded. To support this assertion, counsel relied on the cases of Mwihaki v Mweha (Civil Appeal E174 of 2024) (2026) KEHC 1212(KLR) and that of Ogwari v Hersi (Civil Appeal 223 of 2022 (2023) KEHC 20111 (KLR) on the proposition that material damage claim is a special damage claim and ought to be specifically pleaded and proven with a degree of certainty. However, that the degree of certainty depends on the circumstances and nature of the act complained of. 17.It was the submission of counsel that the appellant produced the Assessment Report of the total repair costs for the damage at Kshs. 2,241,136/- and an invoice dated 1st October, 2021 for the amount of Kshs. 3,188,956/-. However, that they did not adduce any ETR receipt as proof of payment. That the receipt produced is only an excerpt of a receipt attached to an invoice which did not indicate if the amount was paid, the items or services purchased, mode of payment and when the payment was made. According to counsel, the said receipt by the appellant was only an invoice and as such, not sufficient proof of payment of the repairs. More so that the witness for the Appellant PW3 stated upon cross-examination that the plaintiff did not issue any receipt and that there was no evidence to prove payment. 18.Counsel also submitted that an invoice cannot be a receipt unless endorsed, as was held in the case of Guardian Coach Ltd & another vs Kiptoo (Civil Appeal 34 of 2020). 19.On whether the appellant was entitled to the special damages for the repair costs, counsel submitted that the appellant did not prove that they spent the money claimed for the repair costs and as such they should not be awarded the amount pleaded. That they failed to produce an actual ETR receipt proving that payment was rendered for the costs for repair. 20.Counsel relied on the case of Kimani v Vehicle and Equipment Leasing Ltd & 2 others (Civil Appeal E1147 of 2023) (2025) KEHC 12977 (KLR) where DKN Magare J cited the case of David Bagine v Martin Bundi (1997) eKLR, where the Court of Appeal cited the judgment by Lord Goddard CJ in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177, that“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages, they have to prove it.” 21.He further submitted that the Appellant is not entitled to any special damages under the issue of costs of repair as they failed to prove what the pleaded for. Analysis and determination 22.This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 23.I have considered the grounds of appeal, the evidence and the submissions tendered by the respective counsels for the parties. 24.I have at the same time to remind myself that the standard of proof in civil cases as in this case is on a balance of probabilities. In essence, I must ask myself whether the record bears sufficient evidence to sustain the findings in the judgment of the learned trial magistrate. 25.What is for determination in this appeal is whether the appellant is entitled to Kshs. 3,188, 956 being cost of repair of its motor vehicle. 26.The appellant contends that it proved special damages of the repair costs of Ksh.3,188,956/-. That this was sufficiently proved as they produced an Assessment Report of the total repair costs for the damage and an invoice dated 1st October, 2021 for the stated amount. The appellant also asserts that the trial magistrate failed to notice the ETR receipt from Delta Automobiles Limited which was evidence of payment of the repair costs thereby reaching a wrong decision. 27.The Respondent on the other hand argues that the appellant produced the Assessment Report of the total repair costs for the damage in the amount of Kshs. 2,241,136/- and an invoice dated 1st October, 2021 for the amount of Ksh. 3,188,956/-. However, they did not adduce any ETR receipt as proof of payment. That the receipt produced is only an excerpt of a receipt attached to an invoice which did not indicate if the amount was paid, the items or services purchased, mode of payment and when the payment was made. Therefore, that the said receipt was only an invoice and as such, not sufficient proof of payment of the repairs. 28.The established legal standard is that special damages must be specifically pleaded and strictly proved. In Civil Appeal No. 282 of 2018 John Nganga Kinuu & 2 Others -vs- Peter Rubiro Ndongi & 4 Others, the Court of Appeal, in reference to the decision in Hann -vs- Singh [1985] KLR 716 discussed special damages as follows;…. Special damages must not only be specifically claimed but also strictly proved. The degree of certainty and the particularity of proof required depends on the circumstances and the nature of the acts themselves… 29.The question of law before this Court is whether the learned magistrate misdirected himself on the legal standard of strict proof by categorically concluding that the assessment report and invoice produced by the appellant were legally incapable of proving financial loss. The trial court stated that the said invoices did not bear any endorsement that they were paid and as such the invoices did not amount to receipt. 30.It is clear from the evidence that the suit was a material damage claim seeking recovery of repair costs of a motor vehicle. The law in respect to material damage claims was settled by the Court of Appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [supra] in the following rendition: -…. 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. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value…. 31.The Court further went on to state that: -In the result we agree with Mr. Charles Kariuki that the Assessor’s report was sufficient proof and the failure to produce receipts for any repairs done was not fatal to the respondent’s claim…… 32.Earlier on, the Court of Appeal in Hahn vs. Singh [1985] KECA 129 (KLR), had discussed the degree of certainty and particularity of proof in respect to special damages and stated that the degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. 33.I have considered the principle laid out in the Nkuene Dairy Farmers Case that a party only needs to demonstrate the extent of the damage to his motor vehicle and the estimated costs of repairs, without necessarily proving that the repairs were carried out or paid for. In the case at hand, the motor vehicle was assessed by a qualified motor vehicle assessor. In the report the assessor quoted the prices of the material required for repair. The respondent did not challenge the report during the hearing. Neither did they provide an opposing report. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor’s report. I therefore find that the motor vehicle Assessor`s report coupled with the invoice from those who repaired the motor vehicle were sufficient proof of the material damage claim. Failure to produce a receipt was not fatal to the case. 34.I find support in the above proposition in the case of Last Mile Carrier Limited v Kimanzi & another [2025] KEHC 9999 (KLR), where the court awarded a sum of Ksh..522, 232/= as the cost of repair of a motor vehicle based on an assessment report. The court found that the same was not disputed or contradicted by the appellant. In Githinji v Kagwi & another [2025] KEHC 2130 (KLR), the court cited the David Bagine v Martin Bundi (1996) eKLR where the Court of Appeal in asserting the probative value of an assessor’s report stated that:-‘’The assessor’s report was sufficient proof and the failure to provide receipts for any repairs done was not fatal to the respondent’s claim.” 35.I find that the trial court erred in rejecting the claim of Kshs.3,188,956/=. The judgment of the learned magistrate is thereby set aside. Consequently, I enter judgment in the sum claimed of Kshs.3,188,956/= with interest at court rates from the date of judgment till payment in full. The Appellant to have the costs of the appeal. DELIVERED, DATED AND SIGNED AT GARSEN THIS 16TH DAY OF JULY 2026J. N. NJAGIJUDGEIn the presence of:Miss Mbesa HB for Mr.Oonge for AppellantMiss Orina HB for Miss Itegi for RespondentCourt Assistant – Rahma