Joel Koech Chelal v Ganday General Trading & Transport Company Limited & 1 other

4. The Plaintiff further averred that at the time of the accident, his motor vehicle had been insured by the insurer. 5. In addition to the above, the Plaintiff pleaded that the insurer made good his loss by expending Kshs. 466,179/= in repair costs, assessment fees, re-inspection fees, and tracing fees thereby necessitating the filing of this suit for the insurer to recover the said sum of Kshs. 466,179/= from the Defendants under the doctrine of subrogation. 6. The Defendants entered appearance and filed a Statement of Defence denying the occurrence of the accident, the damage to the Plaintiff’s motor vehicle, and the particulars of negligence attributed to them by the Plaintiff. The further averred that if the accident herein occurred, then the same was caused by the Plaintiff’s driver. 7. It is against this background that this matter was set down for hearing for the parties to prove the averments in their pleadings on a balance of probabilities. EVIDENCE Plaintiff’s Case 8. PW1 John Koech Chelal adopted his witness statement dated 13th January 2026 as his evidence in chief. He produced the satisfaction note dated 21st February 2022, logbook for the Plaintiff’s motor vehicle, motor vehicle accident claim form dated 19 th January 2021, and the demand letter dated 07th January 2025 as exhibits. 9. His testimony was that the accident occurred along Bungoma – Malaba road near Bwema area when the Defendants’ motor vehicle failed to keep a safe distance and rammed into his motor vehicle from behind, thereby causing extensive damage to the said motor vehicle. 10. He added that the insurer fully repaired his motor vehicle to his satisfaction and settled his claim in full, hence the suit under the doctrine of subrogation. 11. In cross-examination, he admitted that his motor vehicle was driven from Bungoma to Eldoret despite having been extensively damaged in the rear since the insurer directed him to drive to their contracted garage in Eldoret. 12. PW2 Abraham Kendagor adopted his witness statement on record as his evidence in chief. He produced his driving licence as an exhibit. His testimony was largely a regurgitation of PW1’s testimony above, which this court need not reproduce here.

page 2 of 11

13. PW3 No. 76835 PC Isaac Kimani Njuguna of Bungoma Police Station traffic produced the accident’s police abstract dated 18th January 2022 showing that the accident herein occurred on 18th January 2022 at around 0630hrs at Bwema area along Bungoma – Malaba road involving the Plaintiff’s motor vehicle and the Defendant’s motor vehicle. 14. He read out the contents of OB. No. 71/18/01/2022 as reported by PW2 to the effect that the Plaintiff’s motor vehicle had been hit from behind by the Defendant’s motor vehicle. He produced the said OB entry’s extract as an exhibit. 15. PW4 John Namu an investigator from Renze Investigators and Assessors, produced the investigation report/tracing dated 17th December 2024, as well as an invoice and a receipt for Kshs. 20.950/=. 16. He stated in cross-examination that the insurer instructed him to prepare the report sometime in October 2024. He reiterated that although the report on record was unsigned, it was not a fabrication. 17. PW5 George Matta Kiburi is an assessor at Kibmatt Loss Assessors Limited. He testified that the insurer retained him to assess damage to the Plaintiff’s motor vehicle. He produced the motor vehicle assessment report dated 27 th January 2022, an invoice, and a receipt dated 27th January 2022 for Kshs. 6,390/= as exhibits. 18. He conceded in cross-examination that the assessment report field was incomplete. 19. He clarified that since the damage to the Plaintiff’s motor vehicle was on the body, the said motor vehicle could be driven from Bungoma to Eldoret without causing further damage to the said motor vehicle. 20. PW6 Cheryl Odipo is the insurer’s legal officer. She adopted her witness statement dated 13th January 2025 detailing payments made by the insurer towards repairing the Plaintiff’s motor vehicle after the accident herein. 21. She produced all the documents not filed by the other witnesses as exhibits. 22. She conceded in cross-examination that she could not tell if the assessors who assessed the Plaintiff’s motor vehicle travelled from Kisumu to Eldoret to reinspect the Plaintiff’s motor vehicle after repair. She also stated that the payment remittance vouchers filed by the Plaintiff showed that the insurer made the payments claimed. 23. She clarified that the insurer makes payments through Electronic Funds Transfer (EFT), not cheques, after service providers submit invoices to them.

page 3 of 11

24. She admitted that they had not filed a certificate of print for the payment remittance vouchers. Defendants’ Case 25. The Defendants did not call any witnesses to prove their averments in their Statement of Defence on record. The consequence of a Defendant failing to call witnesses to substantiate the averments in their Statement of Defence was aptly captured in Edward Mariga suing through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another [1979] eKLR, where the Court of Appeal stated as follows: “The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” 26. Similarly, C.B. Madan JA made the following remarks in CMC Aviation Ltd Vs. Crusair Ltd (No.1) (1987) KLR 103 regarding this issue: “The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.” 27. Guided by the authorities above, it follows that the averments in the 1 st Defendant’s Statement of Defence, having not been substantiated by any witness, remain mere allegations which this court will not consider in determining this case. ANALYSIS & DETERMINATION 28. This court has duly the Plaintiff’s pleadings, the evidence on record, as well as the written submissions filed by the parties herein. 29. This suit is based on the principle of subrogation. Mohochi J in Eastern Produce Kenya Ltd v Rongai Workshop & Transporters Ltd (Civil Appeal 125 of 2018) [2023] KEHC 24810 (KLR) (7 November 2023) (Judgment) rendered himself thus on what the principle of subrogation means:-

page 4 of 11

“The principle of the doctrine of insurance was well defined in Kenya Power & Lighting Company Limited v Julius Wambale & Another (2019) eKLR where Githua J held; ‘‘The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.’’ 30. This court’s understanding of the authority above is that for a suit brought under the doctrine of subrogation to succeed, the Plaintiff must prove on a balance of probabilities that after their insured motor vehicle was damaged in an accident, their insurer made good their loss, and that the accident was caused by a third party (“the Defendant”) who ought to indemnify the Plaintiff’s insurer. 31. Having fully appreciated the ingredients of the claim under the doctrine of subrogation, this court will proceed to determine whether the Plaintiff proved their case on a balance of probabilities. 32. It is common ground that the accident herein occurred, causing damage to the Plaintiff’s motor vehicle, and that the insurer had insured the Plaintiff’s motor vehicle at the time of the accident. 33. In the circumstances, this court is of the considered view that the issues for determination are liability and quantum. Liability 34. PW1 and PW2, who are the accident’s eyewitnesses testified that the accident occurred when the Defendant’s motor vehicle hit the Plaintiff’s motor vehicle from behind. Their testimony on the circumstances under which the accident occurred was corroborated by the motor vehicle inspection report on record showing that the Plaintiff’s motor vehicle was damaged on the rear at the time of the accident.

page 5 of 11

35. The Defendants took the position that in the absence of sketch plans, the Plaintiff had not prove negligence on the Defendants’ part. They placed reliance on Postal Corporation Limited v Dickens Munayi (2014) eKLR for the position that in the absence of a sketch plan this court cannot clearly map out how the accident occurred. 36. The Postal Corporation Limited case (supra) is distinguishable from this case. In that case, the Defendant led evidence to controvert the Plaintiff’s version of events on how the accident occurred. The court in that case was confronted with two contradictory versions of events on how the accident occurred, thus the need for a sketch plan for this court to fully understand how the accident occurred. 37. In the instant case, the Plaintiff’s evidence on how the accident occurred is uncontroverted; therefore, a sketch plan may not be the determining factor on who caused the accident. 38. Given the fact that the Plaintiff’s motor vehicle was hit from behind by the Defendants’ motor vehicle, a prima facie case of negligence was established against the Defendants. To this end, this court draws inspiration from the position taken by Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment) where the learned judge expressed himself as follows:A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence.’ 39. In addition to the above, a motor vehicle that hits another motor vehicle is presumed to have been driven at a high speed, which made it impossible for the driver of such a motor

page 6 of 11

vehicle to prevent the occurrence of the accident. In support of this position, this court places reliance on Mumbi Mugi v The Co-operative Bank of Kenya Limited & Others Civil Appeal No. 214 of 2004, where the Court of Appeal opined that:“If a “matatu” is driven in a normal and at reasonable speed, there would be no reason why it would run into a hippopotamus or veer off the road and smash into a tree. If a vehicle does any of these things, some explanation ought to be offered by the driver of the vehicle ….. vehicles, when normally driven at reasonable speed, do not just do certain things…” 40. The common thread running through the authorities above is that where a motor vehicle hits another motor vehicle, a prima facie case of negligence is established against the motor vehicle that hit the other motor vehicle. 41. The Defendants did not lead any evidence to dislodge the prima facie case of negligence established against their driver. 42. The foregoing shows that the Plaintiff proved on a balance of probabilities that the accident occurred when the Defendants’ driver hit the Plaintiff’s motor vehicle from behind after failing to keep a safe distance. 43. There is nothing on record to suggest that the Defendants’ motor vehicle driver was on a frolic of his own at the time of the accident. Therefore, the Defendants must be held vicariously liable for their driver’s acts or omissions. 44. In the circumstances, this court finds and holds the Defendants jointly and severally 100% liable for the occurrence of the accident herein. Quantum 45. Before determining quantum in this case, it is imperative for this court to dispose of the issues raised by the 1st Defendant’s counsel in their written submissions. 46. Counsel submitted that the payment remittances filed by the insurer without a certificate of print under section 106B of the Evidence Act could not be used to prove that the insurer expended the money claimed in this suit. They cited Mariam Senalire v African Institute of Capacity Development (2021) eKLR, where the court held that office

page 7 of 11

documents showing the schedule of payments and stamped paid could be relied upon by the Defendant to prove payment. 47. The Miriam Senalire case (supra) is distinguishable from this case since the Defendant in that case was solely relying on their own payment schedules without bank statements to prove payments to another party, unlike in this case, where the insurer is relying on their own documents as well as ETR receipts from service providers to claim the money sought herein. 48. ETR receipts from service providers showing the insurer as the payee prove on a balance of probabilities that the insurer expended the money in such receipts (see Kioko v Karagu (Civil Appeal E848 of 2022)[2025] KEHC 2072 (KLR)). 49. The foregoing shows that the omission by the insurer to file a certificate of print alongside their payment remittances extracts is not fatal to the insurer’s claim. Requiring the insurer to file their bank statements to prove the payments herein, despite the evidence of payment on record, will be akin to demanding the insurer to prove their claim beyond reasonable doubt, yet the standard of proof in civil matters is on a balance of probabilities. 50. The Defendants’ counsel also took issue with the Plaintiff’s driver’s driving of the motor vehicle from Bungoma to Eldoret. Counsel submitted that such an act caused more damage to the Plaintiff’s motor vehicle which the Defendants’ should not be called upon to shoulder. 51. PW5 who is a motor vehicle assessor well versed in motor vehicle matters explained that the rear damage to the Plaintiff’s motor vehicle could not prevent the Plaintiff’s motor vehicle to move from Bungoma to Eldoret, and that the movement did not cause further damage to the said motor vehicle. 52. This court is of the considered view that in the face of PW5’s expert opinion above, it was not enough for the Defendants to simply submit that the Plaintiff’s motor vehicle’s movement from Bungoma to Eldoret caused further damage to the said motor vehicle through submissions. Submissions are not evidence. 53. In any evidence, at least from the evidence on record, the Defendants’ counsel is not an expert in motor vehicles. Only an expert witness or report could impeach PW5’s

page 8 of 11

testimony that the Plaintiff's motor vehicle’s movement from Bungoma to Eldoret caused further damage to it. 54. Having disposed of the issues above, this court now proceeds to determine quantum. 55. The Plaintiff prayed for an award of the following:a. Repair costs – Kshs. 418,679/= b. Assessment fees – Kshs. 6,380/= c. Tracing fees – Kshs. 30,000/= d. Re-inspection fees – Kshs. 11,120/= 56. The sums of money claimed above are special damages that need only be pleaded but also strictly proved before they are awarded. To this end, this court is fortified by the holding in Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011)), where Mahmud Mohammed, JSC. delivering the judgment of the Supreme Court of Nigeria, stated as follows: “I must emphasize that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff …. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award...” 57. The reasoning above was also followed by the Court of Appeal in David Bagine Vs Martin Bundi [1997] eKLR, where the Court of Appeal stated as follows: “It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:"....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde

page 9 of 11

Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" 58. Guided by the authorities above, this court will now determine whether the Plaintiff strictly proved that his insurer expended the sums of money above. Repair costs 59. The Plaintiff placed before this court a motor vehicle assessment report from Kibmatt Loss Assessors, which proved that the Plaintiff’s motor vehicle was damaged as a result of the accident, and that it was to be repaired at a cost of Kshs. 418,679/=. The satisfaction note on record proved that the said repairs were undertaken. 60. The invoice, as well as an ETR receipt from Aman Ventures, on the other hand, proved on a balance of probabilities that the insurer paid Kshs. 418,679/= towards repairing the Plaintiff’s motor vehicle. Assessment fees 61. The fee note and the ETR receipt dated 27th November 2022 from Kibmatt Loss Assessors proved the claimed sum of Kshs. 6,380/= to the required standards. Re-inspection fees 62. The Defendants submitted that in the face of PW6’s admission that she could not confirm whether the assessor travelled to Eldoret to inspect the Plaintiff’s motor vehicle, the insurer could not recover the claimed sum of Kshs. 11,120/=. 63. This court notes that the Plaintiff’s motor vehicle was repaired in Eldoret. There is nothing on record to suggest that Kenya Pride Automotive Valuers has an office in Eldoret. This, in effect, means that the assessor from Kenya Pride Automotive Valuers could only assess the Plaintiff’s motor vehicle by travelling to Eldoret, where the motor vehicle was located. 64. In the circumstances, the insurer is entitled to the sum of Kshs. 11,120/= as evidenced by the invoice and the ETR receipt on record from Kenya Pride Automotive Valuers.

page 10 of 11

Tracing fees 65. The Plaintiff pleaded tracing fees of Kshs. 30,000/=. However, PW5 testified before this court and produced an ETR receipt showing that he was paid Kshs. 20,950/= for the tracing services. 66. Therefore, the insurer can only recover the proved sum of Kshs. 20,950/=. DETERMINATION 67. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms:a. Liability - 100% b. Repair costs – Kshs. 418,679/= c. Assessment fees – Kshs. 6,380/= d. Tracing fees – Kshs. 20,950/= e. Re-inspection fees – Kshs. 11,120/= Total Award - Kshs. 457,129 /= 68. The award above, being special damages, will accrue interest at court rate from the date of filing this claim till payment in full. 69. The Plaintiff will also have the costs of this suit. 70. It is so ordered. Read, signed, and delivered in open Court at Bungoma this 21st day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Keiro for the Plaintiff Mr. Opiyo for the Defendants C/A: Mr. Rioba

page 11 of 11