Urgent Cargo Handling Limited v Mitau (Civil Case E617 of 2025) [2026] SCC 153 (KLR) (30 June 2026) (Judgment)

Urgent Cargo Handling Limited v Mitau (Civil Case E617 of 2025) [2026] SCC 153 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] SCC 153 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Civil Case E617 of 2025 TN Mwangeka, RM June 30, 2026 Between Urgent Cargo Handling Limited Claimant and Shadrack Malonza Mitau Respondent Judgment 1.The Statement of Claim dated 24th November, 2025 seeks judgement as against the Respondent in the sum of Kshs. 259,546/- plus costs and interests until payment in full for material damage as a result of an accident that occurred on or about 27th November 2022 at around 9:30 p.m. under the doctrine of Subrogation. 2.On 9th June 2026, parties elected to have the matter proceed via section 30 of the Small Claims Court Act. 3.It is the Claimant's case that the Claimant’s motor vehicle registration number KBX 137P Toyota Axio was lawfully being driven from SGR Mombasa Terminal towards Mombasa town when upon reaching Port Reitz area near Toyo Junction, the Respondent's driver, servant or agent so negligently and recklessly drove the Respondent's Motor Vehicle Registration Number KBТ 528C Toyota IST from behind and pushing it forward thus knocking a stalled Motor Vehicle registration number KCD 248Q. Consequently, the Claimant's Motor Vehicle registration number KBX 137P was extensively damaged. Particulars of negligence on the part of the Respondent are as stated at paragraph 3 of the Statement of Claim. 4.The Claim is opposed. In the Response to Claim, the Respondent asserts that on the material date he was driving cautiously and at a moderate speed from the SGR area towards Port Reitz, Mombasa, along a hilly stretch of the road near Toyo Junction and a sharp corner approximately 30 meters after the junction. That upon approaching the said corner, he found the Claimant's motor vehicle stationary and/or abruptly stopped on the roadway without any hazard lights, warning triangle, lifesaver sign or any other cautionary warning to approaching motorists. At the same time there was a trailer occupying the opposite lane, which made it unsafe and impossible to overtake, swerve or avoid the obstruction. The Respondent immediately applied brakes and slowed down, and if any contact occurred, the same was slight and minimal while braking and not the significant impact alleged by the Claimant. The Respondent avers that the said contact, if any, was wholly and/or substantially caused by the negligence of the Claimant's driver. 5.From the evidence on record, particularly the Motor Accident Report filed by the Claimant herein. At the paragraph titled “Accident” there is no indication as to whether the Claimant’s vehicle had any lights. Additionally, it states that the estimated speed was 5km/hr. From this, the court is inclined to believe that the Claimant’s motor vehicle was stationary and/or abruptly stopped on the roadway without any hazard lights, warning triangle, lifesaver sign or any other cautionary warning to approaching motorists. However, the Respondent also had a duty to keep a proper look out while driving, have regard for other road users that may be reasonably expected to be on the said road and to brake, slow down, stop and/or control motor vehicle registration Number KBT 528C in such manner as to avoid causing the said accident. 6.Having considered the pleadings, documentary evidence and submissions on record therefore, I find that on a balance of probability, the Respondent was not solely to blame for the accident and thus apportion liability at 60% to the Claimant and 40% to the Respondent. 7.On quantum, the Claimant has relied on various documents to substantiate the Kshs. 259,546/- claimed. I find the same to be sufficiently proven in line with the decided case of Nkuene Dairy Farmers Co-operative Society & Anor v Ngacha Ndeiya (2010) eKLR. 8.Having apportioned liability at 60% to the Claimant and 40% to the Respondent, judgment is entered for the Claimant for the sum of Kshs. 155,727.60/- plus interest from date of judgment. Parties to bear their own costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……30TH …….DAY OF………JUNE………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;..Ms. Oile...for Claimant;Respondent in personC/A Esther