Pozzolana Stones Ltd v Smart Autos Ltd & another (Civil Case E11983 of 2021) [2026] KEMC 362 (KLR)

Although no witness saw the accident, the Police Abstract, investigation report, photographs and assessor's report proved the occurrence. The offending vehicle left the carriageway and struck a parked vehicle inside private premises, circumstances that do not ordinarily occur absent negligence. The defence offered no explanation, so the evidential burden was not discharged and negligence was established.

The NTSA search showed the 1st Defendant as registered owner, raising a rebuttable presumption. Evidence of a sale and delivery of the vehicle to the purchaser before the accident, unrebutted by contrary evidence, displaced possession and control. Crucially, the Plaintiff could not identify the driver or prove any agency or employment relationship, and registration alone does not impose liability. The Plaintiff's own investigation report identified the 2nd Defendant as beneficial owner, supporting the defence.

Kenindia Assurance paid repair costs and incidental expenses under a comprehensive policy. Following Castellain v Preston, once fully indemnified the insurer is subrogated to the insured's rights. Policy documents, payment vouchers, discharge documents, invoices and the assessor's report established indemnification, entitling the Plaintiff to institute recovery proceedings in its own name.

Special damages of Kshs.252,916.00 were specifically pleaded and strictly proved through an assessment report, repair estimate, repair authority, invoices, payment vouchers, satisfaction note, investigation report, police abstract, NTSA search and receipts. Their authenticity was not seriously challenged. However, proof of damages alone cannot found liability; since the 1st Defendant was not liable, the proved sum was recoverable only from the 2nd Defendant, liable after formal proof.

Under section 27(1) of the Civil Procedure Act costs follow the event. The Plaintiff succeeded against the 2nd Defendant, who must pay costs. Although the 1st Defendant would ordinarily get its costs, the NTSA records still showed it as registered owner when suit was filed, making joinder not unreasonable; hence each party to bear its own costs as between Plaintiff and 1st Defendant.