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Small ClaimsPartially AllowedNot stated in the judgment· [2025] SCC 67 (KLR)

Maina v Kahiu & 3 others (Claim E3619 of 2024) [2025] SCC 67 (KLR)

Small Claims Court
23 October 2025
3,495 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A police abstract blaming a driver isn't proof of negligence in Kenya—courts split liability 50:50 when evidence can't fix blame.

What this practically means

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Executive summary

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The Claimant, APA Insurance Company Limited, sued under the doctrine of subrogation to recover Kshs. 155,092/= paid to its insured, whose motor vehicle KCT 504 K was damaged on 25th July 2021 when the 1st Respondent's motor vehicle KBR 420 L allegedly rammed into its rear along North Airport road. The 1st Respondent denied negligence, blaming the Claimant's driver, who allegedly braked suddenly and swerved to avoid a pothole. The 4th Respondent was struck out and the claim against the 2nd and 3rd Respondents was withdrawn. The court identified two issues: liability and quantum. On liability, the court held that a police abstract entry blaming a vehicle is not conclusive proof of negligence without the investigating officer's testimony, but evidence that the 1st Respondent's vehicle hit the Claimant's from behind established a prima facie case of negligence, reinforced by the pleaded doctrine of res ipsa loquitor. However, RW1's un-rebutted account of sudden braking meant blame could not be fixed on either driver, and applying the principle that where there is no concrete evidence of blame between two drivers liability is shared equally, the court apportioned liability 50%:50%. On quantum, the court awarded the strictly proved special damages of Kshs. 135,092/=, including garage repair costs of Kshs. 98,832/= and car hire fees limited to two days at Kshs. 5,000/=. After deducting 50% liability, judgment was entered for Kshs. 67,546/= with interest at court rates from the date of filing, and costs assessed at Kshs. 30,000/= to the Claimant.

Key legal issues

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01

Liability for the rear-end collision

Holding

Liability apportioned at 50%: 50% between the Claimant and the 1st Respondent.

Reasoning

The evidence showed the Claimant's vehicle was hit from behind, raising a prima facie case of negligence against the 1st Respondent, and res ipsa loquitor was pleaded, shifting the burden. However, RW1's evidence that the Claimant's vehicle braked suddenly to avoid a pothole was not disproved, and the investigating officer did not testify. With only word against word and no adequate evidence to apportion blame, the court held the drivers equally liable.

p. 6
02

Quantum of special damages

Holding

Special damages of Kshs. 135,092/= proved and awarded, including garage repair costs of Kshs. 98,832/= and car hire of Kshs. 5,000/= for two days.

Reasoning

Special damages must be pleaded and strictly proved. Payment vouchers and receipts proved the assessment, re-inspection, tracing and inspection fees. The repair claim of Kshs. 98,832/= was supported by the payment voucher despite the higher quotation; the notes on previous tail gate repairs did not show unrepaired pre-accident damage. Car hire was payable as part of the insurer's duty of indemnity but limited to two days per the assessment report.

p. 7

Legal principles established

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  • An entry in a police abstract blaming a motor vehicle for an accident is not conclusive proof of negligence; it is only of persuasive value and becomes binding only if the investigating officer's evidence on the entry remains unshaken.
  • A driver who hits another vehicle from behind creates a prima facie case of negligence against himself, which he must rebut.
  • Where there is no concrete evidence to establish who is to blame as between two drivers, liability should be apportioned equally at 50:50.
  • Special damages must be specifically pleaded and strictly proved.
  • For a claim under subrogation, the insurer must prove a contract of insurance, that the insured suffered loss which the insurer made good, and that the loss was caused by a third party.

Court orders

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  1. 1.Judgment entered against the 1st Respondent at 50% liability
  2. 2.Award of special damages totalling Kshs. 135,092/= (garage repair costs Kshs. 98,832/=; car hire fees Kshs. 5,000/=; assessment fees Kshs. 6,380/=; re-inspection fees Kshs. 2,320/=; tracing charges Kshs. 22,010/=; motor vehicle inspection Kshs. 550/=)
  3. 3.Net award of Kshs. 67,546/= after deduction of 50% liability
  4. 4.Interest at court rate on the sum of Kshs. 67,546/= from the date of filing the claim until payment in full
  5. 5.Costs of the claim assessed at Kshs. 30,000/= to the Claimant
  6. 6.Certificate of costs and decree to issue forthwith
  7. 7.File closed

Authorities

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Legislation

  • The Traffic ActNot specified

Cases cited (11)

  • Richard v Njeru
    (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR)
  • Egypt Air Corporation v Sufish International Food Processors (U) Ltd and Another
    [1999] 1 EA 69
  • Atanga v Rojeh
    (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR)
  • Orioki v Kevian Kenya Limited
    (2025) KECA 780 (KLR)
  • Njuguna v Chogo
    [1985] KLR 452
  • Esther Nduta Mwangi & another v Hussein Dairy Transporters Limited
    Machakos HCCC No 46 of 2007
  • James Vulimu Mbaja v Anvi Emporium Limited & another
    [2021] KEHC 13367 (KLR)
  • Isaac Onyango Okumu v James Ayere & another
    [2019] eKLR
  • Michael Hubert Kloss & another v David Seroney & 5 others
    [2009] eKLR
  • Salmin Mbarak Awadhi v Emma Nthoki Mutwota
    [2017] eKLR
  • Herbert Hahn v Amrik Singh
    [1985] eKLR
Jurisdiction invoked
First-instance claim under the insurance principle of subrogation before the Small Claims Court

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, "Maina v Kahiu & 3 others (Claim E3619 of 2024) [2025] SCC 67 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23

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