Kamami v Kiarii & another (Claim E6016 of 2024) [2025] SCC 43 (KLR)
The bottom line
#A Bungoma court ruled that insurers can recover accident payouts from at-fault drivers, but only receipts marked 'Paid' prove what was actually spent.
What this practically means
#Executive summary
#Key legal issues
#Doctrine of subrogation - entitlement of insurer to recover from third party
The claim under subrogation was properly before the court; the insurer paid the Claimant's loss and was entitled to step into the insured's shoes.
The court adopted Githua J's statement of the doctrine: where an insurer compensates its insured for loss caused by a third party, the insurer is entitled to the insured's rights and remedies, including indemnity from the third party. There was no contest that the vehicle was insured, damaged, and the insurer expended money making good the loss. The only disputes were liability and quantum.
Liability for the accident
The Respondents were jointly and severally 100% liable; the Claimant's vehicle was hit from behind, creating a prima facie case of negligence the Respondents did not rebut.
The Motor Accident Claim Form, Motor Assessment Report and witness evidence showed the Respondents' vehicle hit the Claimant's vehicle from behind. The police abstract entry blaming KBP 690 V was persuasive. The Respondents filed no witness statements or documents; their pleaded averments remained mere allegations and uncontroverted evidence was accepted.
Quantum of special damages
Total loss (Kshs. 330,000/=) and towing fees (Kshs. 9,000/=) proved via cheque formats; tracing fees (Kshs. 26,470/=) not proved as the invoice was not endorsed 'Paid'.
Special damages must be both pleaded and proved. Cheque formats dated 5th April 2022 and 5th May 2022 proved payment of the total loss and towing sums. The investigators' invoice was only a request for payment and, lacking a 'Paid' endorsement, could not sustain the tracing fees claim.
Legal principles established
#- An insurer that has indemnified its insured may, under the doctrine of subrogation, step into the insured's shoes and seek indemnity from a third party, provided the action is instituted with the insured's consent and relates to the subject of the insurance contract.
- A police abstract entry on the outcome of investigations, while not sole proof of negligence, is persuasive.
- A driver who hits another vehicle from behind bears a prima facie case of negligence which he must rebut.
- Averments in pleadings are mere allegations and do not constitute evidence, including in section 30 Small Claims Court determinations.
- An invoice is not proof of payment; special damages must be proved by receipts or invoices endorsed 'Paid'.
Court orders
#- 1.Liability 100% in favour of the Claimant
- 2.Judgment entered against the Respondents jointly and severally for Kshs. 339,000/=
- 3.Interest on Kshs. 339,000/= at court rates from the date of judgment until payment in full
- 4.Costs of the claim assessed at Kshs. 30,000/=
- 5.Prayer for 16% VAT on costs dismissed
- 6.Certificate of costs and decree to issue forthwith
- Jurisdiction invoked
- Section 30 of the Small Claims Court Act (parties consented to determination under section 30)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamami v Kiarii & another (Claim E6016 of 2024) [2025] SCC 43 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/43/eng@2025-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.