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Small ClaimsPartially Allowed· [2025] SCC 48 (KLR)

Mwaura v Kimanzi & another (Claim E4424 of 2024) [2025] SCC 48 (KLR)

Small Claims Court
26 August 2025
2,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Small Claims Court ruled that a police abstract's fault finding is presumed true unless proven wrong, and insurers must strictly prove every shilling claimed.

What this practically means

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Executive summary

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This Small Claims Court at Bungoma judgment, delivered by Adjudicator T.O. Omono on 26th August 2025, concerned a subrogation claim by Pioneer General Insurance Company Kenya Limited seeking Kshs. 182,370/= for repairs, assessment fees, re-inspection fees and a motor vehicle search fee following a road traffic accident on 12th April 2024 along Ringroad Kindaruma involving motor vehicles KCS 950 U and KCZ 776 B. The Respondents, defending under subrogation on behalf of CIC General Insurance Limited, denied negligence, blamed the Claimant's driver, and counterclaimed for Kshs. 1,055,155/=. The court framed the dispute as turning on liability and quantum. On liability, it held that the entry in the police abstract attributing the accident to KCZ 776 B, supported by section 38 of the Evidence Act, the presumption of regularity, the uncontroverted sketch plan and CW2's testimony, established that the Respondents were jointly and severally 100% liable. The abstract entry was held persuasive and rebuttable only by credible evidence. On quantum, applying the rule that special damages must be pleaded and strictly proved, the court awarded Kshs. 181,820/= proved by payment vouchers, excluding Kshs. 550/= (paid by counsel, not the insurer) and Kshs. 5,000/= witness attendance (unpleaded and unreceipted). The counterclaim was dismissed with costs. The court also held that costs in the Small Claims Court are assessed by judicial discretion under section 33 of the Small Claims Court Act since the Second Schedule to the Rules has not been enacted, assessing costs at Kshs. 30,000/=, with interest at court rates from the date of judgment.

Key legal issues

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01

Liability for the road traffic accident

Holding

The Respondents were jointly and severally 100% liable for the accident

Reasoning

The police abstract contained an entry on the outcome of investigations attributing the accident to motor vehicle KCZ 776 B. By section 38 of the Evidence Act and the presumption of regularity (omnia praesumuntur rite esse acta), such an entry is deemed true unless rebutted. The only rebuttal evidence was the Respondents' own oral testimony. The uncontroverted sketch plan in the motor vehicle accident claim form corroborated that the driver of KCZ 776 B failed to give way at the junction, consistent with CW2's testimony.

p. 6
02

Quantum of special damages recoverable under subrogation

Holding

Only strictly proved sums recoverable by the insurer were awarded: Kshs. 181,820/= of the Kshs. 182,370/= claimed

Reasoning

Special damages must be pleaded and strictly proved. Payment vouchers proved repairs, assessment fees and re-inspection fees totalling Kshs. 181,820/=. The Kshs. 550/= search fee was excluded because the e-receipt showed it was paid by counsel, not the insurer. The Kshs. 5,000/= witness attendance fee failed for want of a receipt and because it was not pleaded, and in any event would be disbursements/costs rather than special damages.

p. 8
03

The Respondents' counterclaim

Holding

Counterclaim dismissed with costs

Reasoning

Having found the Respondents 100% liable, their counterclaim had to fail. The court noted hypothetically that had the Respondents proved the Claimant 100% liable, documentary evidence would have supported an award of Kshs. 1,000,000/= out of the Kshs. 1,055,155/= expended by the 1st Respondent's insurer.

p. 7
04

Assessment of costs in the Small Claims Court

Holding

Costs assessed at Kshs. 30,000/= through judicial discretion guided by section 33 of the Small Claims Court Act

Reasoning

Section 33 of the Small Claims Court Act permits the court to award costs to the successful party and disbursements. Rule 37 of the Small Claims Court Rules refers to a Second Schedule, but that schedule has not been enacted and there are no practice directions on the Advocates Remuneration Order in the Small Claims Court. The court therefore exercised judicial discretion, considering filing fees, attendances, time taken, the award and the engagement of an advocate.

p. 10

Legal principles established

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  • Where a police abstract contains an entry on the outcome of investigations, the court cannot ignore it; such an entry is persuasive, not sole proof of negligence
  • An entry made by a police officer in a police abstract is deemed true unless rebutted by credible evidence, by virtue of section 38 of the Evidence Act and the presumption of regularity
  • Special damages must be pleaded and strictly proved
  • As of now, assessment of costs in the Small Claims Court is done through judicial discretion guided by section 33 of the Small Claims Court Act, since the Second Schedule to the Rules has not been enacted

Court orders

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  1. 1.Liability 100% in favour of the Claimant
  2. 2.Judgment entered against the Respondents jointly and severally for Kshs. 181,820/=
  3. 3.The sum of Kshs. 181,820/= to earn interest at court rates from the date of judgment till payment in full
  4. 4.The Respondents' Counterclaim dismissed with costs
  5. 5.The Claimant awarded costs of the claim and Counterclaim assessed at Kshs. 30,000/=
  6. 6.Certificate of costs and decree to issue forthwith

Authorities

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Legislation

  • Evidence Actsection 38
  • Small Claims Court Actsection 33
  • Small Claims Court Rulesrule 37 and Second Schedule

Cases cited (9)

  • Eastern Produce Kenya Ltd v Rongai Workshop & Transporters Ltd
    Civil Appeal 125 of 2018 [2023] KEHC 24810 (KLR)
  • Kenya Power & Lighting Company Limited v Julius Wambale & Another
    (2019) eKLR
  • Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge
    {2021} eKLR
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another
    (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011))
  • David Bagine Vs Martin Bundi
    [1997] eKLR
  • Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store
    Civil Appeal No. 5 of 1990 (unreported)
  • Idi Ayub Sahbani v. City Council of Nairobi
    (1982-88) IKAR 681
  • Bonham Carter vs. Hyde Park Hotel Limited
    [1948] 64 TLR 177
Jurisdiction invoked
Small Claims Court Act (claim filed and determined under the Small Claims Court Act, costs under section 33 thereof)

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, "Mwaura v Kimanzi & another (Claim E4424 of 2024) [2025] SCC 48 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/48/eng@2025-08-26

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