Transeast Kenya Limited v Mombasa Cement Limited

Analysis 6. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. (See Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123) 7. Upon considering the written submissions by the parties, the issues for determination are; a. Whether there was proof of negligence on the part of the Respondent b. Whether special damages have been proved 8. It is disputed that the Claimant pleaded and proved liability. The trial court dismissed the claim on this ground. The Respondent relied on the case of Ogwari v Hersi (Civil Appeal No. 223 of 2022) where Magare J. held that negligence must first be pleaded before it is proved. 9. On the other hand, the Claimant Appellant stated that it is a misapprehension of the law that the subheading of ‘Particulars of Negligence’ must appear in the Statement of Claim. It was submitted that the evidence of negligence was pleaded in para 3 and 4 of the Statement of Claim. 10. This court has had different positions on whether or not particularization of negligence is mandatory I the pleadings. In Elrons Ltd v Basil (Civil Appeal E890 of 2022) [2024] KEHC 6614 (KLR) (Civ) (6 June 2024) (Judgment), Musyka J. departed from the position as held by Magare J in the Ogwari case (supra). He stated as hereunder; “ The approach, by the trial court, echoes the thoughts in Ogwari vs. Hersi [2023] KEHC 20111 (KLR) (Magare, J), which, in a way, with utmost respect, claws back on the design to move away from the complexities of procedure and evidence, meant to enable ordinary citizens, with small claims, have an easier access to, and time in, the courts. It could spell doom to the Small Claims Court, reducing it to just another Magistrate’s Court, or the High Court for that matter, bound, as they are, by layers of complex rules of procedure and evidence." 11. Further, the Judge in Elrons case took the position taken by Ong’udi J. in the case of Kenyatta National Hospital v Dorcas Odongo & another [2021] eKLR in finding that particulars of negligence in pleadings were not mandatory as long as the acts of negligence have been alleged in the pleadings. I am persuaded by this position and find that the failure by the Claimant to plead particulars of negligence was not fatal to the Claimant’s case as the acts of negligence have been pleaded. 12. On whether the Claimant proved negligence, I have perused through the witness statements of the Claimants witnesses. I have considered the independent evidence by the Investigating Officer I the traffic matter and whose finding were produced in court by CW4, one Sgt. Jacob Nyambu who testified on behalf of the Investigating Officer, PC Michael Kajoli. 13. It was his evidence that the Respondent’s vehicle was heading to the opposite direction of the Claimant’s vehicle, was overtaking but did not complete the overtaking. The Claimant’s driver tried to avoid a head-on collision by swerving to the left, but was hit at the rear by the Respondent’s vehicle causing it to overturn and roll. He blamed the Respondent’s driver for the accident. 14. The Respondent did not adduce any evidence. The evidence by the Claimant remains unrebutted. I find that negligence has been proved by the Claimant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12080/eng@2025-05-30 2

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15. On special damages, the same has been pleaded. From the documentary and oral evidence on record. The Claimant produced documents in support of paragraph 8 and 9 of the Statement of Claim. There being no evidence to the contrary, I find the special damages have been proved. The Claimant has discharged the burden of proof as per section 107 of the Evidence Act. I find the appeal has merits. 16. On costs, the appeal being successful, I hereby exercise the discretion of the court and order that costs be awarded to the Appellant both in the lower court and the appeal. Determination 17. In the upshot, I make the following orders: a. The Appeal has merits. b. The Judgment of the lower court dated 31072024 is hereby set aside and substituted with Judgment in favour of the Claimant as prayed in the Statement of Claim. c. Costs awarded to the Appellant. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 30TH DAY OF MAY, 2025. ............................. F. WANGARI JUDGE In the presence of; Mr. Oloo Advocate for the Appellant Mr. Chamwanda Advocate for the Respondent MS Norah, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12080/eng@2025-05-30 3

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