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Small ClaimsPartially AllowedKitale SCC Claim No. E036 of 2024· [2025] SCC 44 (KLR)

Ogutu v Mbiro & another (Claim E383 of 2025) [2025] SCC 44 (KLR)

Small Claims Court
10 July 2025
TOT.O. Omono
2,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court split fault 50:50 in a road accident claim because neither side proved who was to blame, halving the payout.

What this practically means

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Executive summary

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The Claimant, George Otieno Ogutu, sued for special damages of Kshs. 840,000/= arising from a road traffic accident of 01st November 2024 along the Eastern Bypass involving his vehicle KDE 737 J and the Respondents' vehicle KDD 470 J. The Respondents denied the accident and blamed the Claimant's negligence. Only the 2nd Respondent's ownership and the 1st Respondent's agency were not in dispute, so vicarious liability turned on findings on the 1st Respondent's negligence. On liability, the court noted conflicting police abstracts from the same station, no certified OB extract on record, an investigating officer who never testified, an investigating witness (PC Naeku) who did not visit the scene, and photographs taken off the road. An uncertified OB extract attached to written submissions was expunged, the court holding that submissions are not evidence, citing Mwavula v Waweru and Daniel Toroitich Arap Moi. Applying Farah v Lento Agencies and Moiz Motor Limited, the court held the drivers equally to blame, apportioning liability 50%:50%. On quantum, following Jimnah Munene Macharia and Bungoma Line Sacco, the Claimant was awarded the pre-accident value of Kshs. 820,000/= less the salvage value of Kshs. 180,000/=, totalling Kshs. 640,000/=; claims for towing and assessment fees were dismissed for want of receipts. The net award after the 50% reduction was Kshs. 320,000/=, with interest at court rate from filing and costs assessed at Kshs. 25,000/=. The file was closed. The judgment contains several internal inconsistencies flagged above, including reference to a 3rd Respondent and delivery at Bungoma rather than Kitale.

Key legal issues

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01

Liability for the accident

Holding

Liability apportioned 50%:50% as the evidence was inadequate to determine which driver was to blame

Reasoning

The parties produced conflicting police abstracts from the same station, neither filed a certified OB extract as evidence, PC Naeku did not visit the scene, and photos were taken off the road. In the absence of the investigation officer or eyewitnesses, the court could not draw any distinction between the drivers and applied Farah v Lento Agencies, holding both equally to blame.

p. 6
02

Use of police abstracts and OB extracts as evidence of liability

Holding

Conflicting police abstracts and an uncertified OB extract attached to submissions cannot be used to apportion liability

Reasoning

The two abstracts from the same station had conflicting entries; only the investigations officer could explain the contradiction. PC Naeku could not speak to the circumstances since she did not visit the scene, and the OB extract attached to written submissions was uncertified and was expunged from the record.

p. 4
03

Quantum for a written-off vehicle

Holding

Claimant entitled to pre-accident value of Kshs. 820,000/= less salvage value of Kshs. 180,000/=, totalling Kshs. 640,000/=

Reasoning

The assessment report showed the vehicle was written off, with pre-accident value of Kshs. 820,000/= and salvage value of Kshs. 180,000/=. Following Jimnah Munene Macharia v John Kamau Erera and Bungoma Line Sacco, compensation is the difference between pre-accident value and salvage value where there is no proof of repair.

p. 8

Legal principles established

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  • Submissions are not evidence and cannot take the place of evidence
  • Where evidence is inadequate to determine which driver was to blame, both drivers are held equally to blame
  • Special damages must be pleaded and strictly proved
  • Where a vehicle is written off with no proof of actual repair, the plaintiff is entitled to pre-accident value less salvage value

Court orders

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  1. 1.Liability apportioned at 50%:50%
  2. 2.Judgment entered against the 1st and 3rd Respondents jointly and severally for Special Damages of Kshs. 640,000/=; grand award less 50% giving net award of Kshs. 320,000/=
  3. 3.Interest on the award at court rate from the date of filing the claim till payment in full
  4. 4.Costs of the claim assessed per section 33 of the Act at Kshs. 50,000/= less 50%, i.e. Kshs. 25,000/=
  5. 5.Certificate of costs and decree to issue forthwith upon payment of requisite court fees, if any
  6. 6.File closed

Authorities

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Legislation

  • Small Claims Court Actsection 33

Cases cited (6)

  • Mwavula v Waweru t/a Antique Auctioneers Agencies & another
    (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR)
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Farah vs. Lento Agencies
    [2006] 1 KLR 123
  • Moiz Motor Limited & another v Muthoka & 2 others
    (Civil Appeal E079 of 2022) [2023] KEHC 26428 (KLR)
  • Jimnah Munene Macharia vs. John Kamau Erera
    Civil Appeal No. 218 of 1998
  • Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited
    [2021] eKLR
Jurisdiction invoked
Small Claims Court Act (claims referred to in section 33 of the Act govern costs; original civil claim under the Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ogutu v Mbiro & another (Claim E383 of 2025) [2025] SCC 44 (KLR)", Case Analysis (2025). Kitale SCC Claim No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/44/eng@2025-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.