https://new.kenyalaw.org/akn/ke/judgment/scc/2026/205

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCC/E208/2025** **EVELYN CHEPNGETICH TOO VS RAYCON LIMITED** **JUDGMENT** 1. The claimant sued the respondent for the following orders: 2. Judgment in the sum of ksh 175,130/- 3. Interest on the above at 14% from the date of loss 1st April, 2022 until payment in full b. Costs plus 16% VAT and interest of the claim 1. The cause of action arose on or about **1st April, 2022,** when the claimant's authorised driver, servant and/or agent was lawfully driving motor vehicle registration number **KDG 102M** along the Eldoret–Kapsabet Road at Unity Homes area. It is pleaded that the respondent's authorised driver, servant, agent and/or employee so negligently, carelessly and recklessly drove motor vehicle registration number **KBB 540X** that it rammed into the rear right side of the claimant's motor vehicle, causing extensive damage. The claimant therefore holds the respondent directly and/or vicariously liable in negligence, as particularised in paragraph IV of the statement of claim. 2. The claimant further avers that, as a consequence of the accident, her motor vehicle sustained extensive damage. She states that the present claim has been instituted on behalf of **Kenya Orient Insurance Company Limited,** her insurer, pursuant to its right of subrogation after fully indemnifying her for the loss suffered. 3. The respondent filed a response dated **13th May, 2026,** denying the contents of the statement of claim and putting the claimant to strict proof thereof. The respondent denied ownership of motor vehicle registration number **KBB 540X** and further averred that, if any accident occurred, which was denied, the same was wholly or substantially caused by the negligence of the driver of motor vehicle registration number **KDG 102M.** 4. The matter proceeded by way of viva voce evidence. The claimant called four witnesses, while the respondent, although having filed a defence, did not call any witness. 5. **CW1,** PC James Shindo of Langas Police Station, testified that the accident occurred on **1st April, 2022** at about **0900hours** at Unity Homes along the Eldoret–Kapsabet Road. He testified that motor vehicle registration number **KDG 102M**, a Nissan Note, was travelling from Eldoret towards Kapsabet. Upon reaching the entrance to Unity Homes, its driver indicated and slowed down to allow oncoming traffic to pass before turning right, whereupon it was struck on the rear by motor vehicle registration number **KBB 540X,** a Mitsubishi Fuso. He confirmed that the scene was visited by Corporal Purity, who made the relevant OB entry and issued a police abstract. The police abstract was produced as **Claimant's Exhibit 2.** 6. During cross-examination, CW1 stated that he was not the investigating officer and therefore relied on the police records, including the Occurrence Book and the police abstract. He confirmed that sketch plans were not produced and that neither driver was charged with any traffic offence. During re-examination, he confirmed that the police records indicated that motor vehicle registration number **KBB 540X** rammed into the rear of motor vehicle registration number **KDG 102M.** 7. **CW2**, Bernard Lalei, produced the tracing report as **Claimant's Exhibit 15**. He testified that the report dated **22nd November, 2023** had been prepared by a former employee, Zephania. He clarified that his instructions were limited to tracing the ownership and physical location of the motor vehicle and were not related to investigating the accident. 8. **CW3,** John Waweru Njoroge, an assessor from Oriswatch Auto Assessors, produced the assessment report and fee note as **Claimant's Exhibits 4 and 5** respectively. He testified that the repair cost stated in the report was an estimate which could vary depending on the actual repairs undertaken. He confirmed having produced the fee note together with proof of payment. 9. **CW4,** Shakinah Barsito, the Legal Officer of Kenya Orient Insurance Company Limited, adopted her witness statement dated **23rd June, 2026** and produced the remaining documents in the claimant's list of documents as **Claimant's Exhibits 1, 3 and 6–15**. Both the claimant’s and respondent’s cases were closed and parties directed to file submissions. At the time of writing this judgment, only the claimant had complied. 10. Having considered the pleadings, the evidence on record and the submissions by the claimant, the issues for determination are: *a. Who was liable for the accident?* *b. Whether the claimant has proved the damages claimed.* 1. The burden of proving negligence rests upon the claimant by virtue of **Section 107(1) of the Evidence Act**, which provides that whoever desires a court to give judgment as to any legal right or liability dependent upon the existence of facts must prove that those facts exist. 2. Although CW1 was not the investigating officer, he testified from the official police records, namely the Occurrence Book and the police abstract. Those records consistently attributed blame for the accident to motor vehicle registration number **KBB 540X.** His evidence was not shaken during cross-examination. Moreover, the respondent, despite filing a defence denying liability, elected not to call any witness to rebut the claimant's evidence or to offer an alternative account of how the accident occurred. 3. In **Kenya Bus Services Ltd v Dina Kawira Humphrey [2003] eKLR**, citing **Karisa v Solanki [1969] EA 318**, the Court of Appeal held that where it is proved that a motor vehicle caused damage through negligence, a presumption arises, in the absence of evidence to the contrary, that it was being driven by a person for whose negligence the owner is responsible. In the present case, the respondent did not adduce any evidence to rebut that presumption. 4. I have also considered the assessment report together with the photographs annexed thereto, which show damage to the rear bumper and rear section of the claimant's motor vehicle. The nature of the damage is consistent with the claimant's account that the vehicle was struck from behind. Consequently, I find that the claimant has proved, on a balance of probabilities, that the accident was solely caused by the negligence of the driver of motor vehicle registration number **KBB 540X.** The respondent is therefore held **100% liable.** 5. On Quantum, the assessment report dated 6th April, 2022, produced by Cw3 as exhibit 4a clearly indicated the vehicle damaged and indicates the spares to be fitted. The report established the total costs would be ksh 153,120/- the respondent has not produced any contradicting report before this court. The said vehicle was taken at Buffalo Autolab Ltd where it was repaired at a cost of ksh 153,120/- which had been estimated by the assessor and a reinspection report was done confirming the that the repairs were satisfactorily done and the photos taken of the vehicle after the said repairs. Cw 4 Shokinah Barsito, legal officer at Keya Orient Insurance company, testified in court, produced the statement dated 28th June 2026 as her evidence in chief and produced documents in their list of documents as claimant's exhibit 1, 3 and 6-15. She produced an Invoice and receipt for Kshs. 153,120/= as CEX 8. CW-3 John Waweru Njoroge produced an assessment report - CEX4 and a Fee note no. 3176 - CEX 5 for Kshs. 13,930/= from Oriswatch Auto Assessors which sum was paid vide cheque no. 181522 as evidenced in the payment voucher - CEX-14 dated 6/10/2022. Further the witness produced a re-Inspection report - CEX 12 and a fee note - CEX- 13 from Master Assessors & Engineering Ltd for Kshs. 8,080/= which sum was paid vide cheque no. 179479 as evidenced in the payment voucher - CEX- 6 dated 1/7/2022. Therefore, on a balance of probabilities, the Claimant has proven the Re-Inspection fees of Kshs. 8,080/=as pleaded. 6. In the circumstance the court makes the following orders: 7. Liability 100% in favour of the claimant as against the respondent 8. Claimant is entitled to damages of ksh 175,130/- 9. The claimant is awarded costs and interest of the suit. Stay of 30 days granted. Judgment dated and delivered at Eldoret this 7th day of August, 2026. M. E. ALIGULA- RM In the presence of C/A Mr.Lepatoiye Claimant: Ms Wekesa for the claimant Respondent: N/A for the respondnet