Motrex Limited v Dahir & another (Civil Case E134 of 2023) [2025] KEMC 301 (KLR)

b. Costs of this suit; c. Interest on the above; d. Any other relief that this Honourable court may deem fit to grant. The Defence 3. The defendants entered appearance on 8/8/2023 and filed a statement of defence on the same day in which they denied the plaintifi's claim in toto. The defendants denied that they were the registered owner and driver respectively of motor vehicle registration number KAW 342P, denied the occurrence of the accident on the material day, denied that the accident involved the two motor vehicles and averred that if the accident occurred, the same was solely caused or substantially contributed to by the plaintifi’s driver. The defendants pleaded several particulars of negligence as against the plaintifi’s driver but I will not reproduce them for the reason already given hereinabove. The defendants prayed that the plaintifi’s suit be dismissed with costs. Consent On Liability And Evidence 4. The record indicates that on 5/8/2025, the parties recorded a consent on liability, in which the plaintifi was to shoulder 20% whereas the defendants were to bear 80%. The parties further agreed to adopt the plaintifi’s witness statements and documents in evidence without calling the makers. The consent was adopted by the court. The Evidence 5. The Plaintifi produced in evidence several documents in support of its case. No evidence was tendered by the defendants. Main Issues For Determination In my opinion, the main issues for determination are as follows: i. Whether the plaintifi sufiered loss and damage as a result of the alleged accident; ii. Whether the plaintifi is entitled to damages and if so, the nature and quantum thereof; iii. Who should bear the costs of this suit? The Plaintifi ’s Submissions 6. The plaintifi relied on his evidence on record and submitted that it incurred a total of Kshs. 1,041,528/ = as the costs of repairs of motor vehicle KBV 873C. The plaintifi further submitted that it produced receipts of all the expenses incurred and urged the court to award the amount pleaded. The plaintifi also urged the court to award costs and interest. The plaintifi filed a list of authorities but did not bother to attach copies thereof. The Defendants’ Submissions 7. The defendants filed brief submissions. They urged the court to award what had been specifically pleaded and proved by production of receipts. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/301/eng@2025-11-25 2

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Analysis And Determination 8. I have carefully considered the evidence on record. The plaintifi pleaded special damages amounting to Ksh. 1.041,528. The plaintifi produced an assessment report which clearly shows that its motor vehicle was damaged as a result of the accident. I am satisfied that the plaintifi sufiered loss and is thus entitled to damages as against the defendants. The plaintifi's claim is basically one for special damages. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said: “ It has time and again been held by the Courts in Kenya that a claim for each particular type of special damage must be pleaded" 9. In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintifi in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L.J’s Judgment on page 532 and 533 in Ratclifie v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage: “ The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 10. Similarly, in the case of Hahn v Singh [1985] KLR 716, it was held that: “ … special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves.” 11. In the case of Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR), Joel Ngugi J (as he then was) held that: “ Our decisional law is quite clear now that one consequence of this general principle is that a party claiming special damages must demonstrate that they actually made the payments or sufiered the specific injury before compensation will be permitted. A natural corollary of this has been that the Courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury. It is not enough for a party to provide pro forma invoices sent to the party by a third party. In this regard, our Courts have held that an invoice is not proof of payment and that only a receipt meets the test. See Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR; Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR; Sanya Hassan v Soma Properties Ltd. Consequently, our case law seems quite clear that a party must produce actual receipts in order to meet the test of specifically proving special damages and that a pro forma invoice will not sufice.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/301/eng@2025-11-25 3

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12. In Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] KECA 822 (KLR), the Court of Appeal held: “ A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt, and as such cannot attest to the existence of or the acquisition of goods. We consider that a proforma invoice was not satisfactory proof of the respondent’s loss, or the replacement value of the respondent’s equipment, and the learned judge misdirected himself in finding that the proforma invoices were suficient proof of special damages for the respondent’s equipment supposedly withheld by the appellant.” 13. In the authority of Jonathan Njenga v Hassan Faraj Aboud [1987] KECA 17 (KLR), the Court of Appeal (per Platt JA) was of the view that in cases of material damage, the victim would be entitled to compensation for depreciation of his motor vehicle. The compensation is arrived at by getting the preaccident value of the car less the scrap value. Similarly, in Herbert Hahn v Amrik Singh [1985] KECA 68 (KLR), the Court of Appeal observed: “ The appellant was, nevertheless, entitled to the depreciation in the value of his vehicle resulting from the accident. That depreciation is calculated by deducting the post-accident estimated market value from the estimated pre-accident market value of the motor vehicle and getting the difierence, if any, which represents the loss the plaintifi will sufier at the time of resale of his vehicle and which is recoverable. But this loss has to be proved by evidence and is not automatic.” 14. The position was also alluded to in the authority of DAVID BAGINE v MARTIN BUNDI [1997] KECA 54 (KLR) in which the court of Appeal held: “ We come now to the issue of special damages award for Kshs. 277,750/= for repair costs. Counsel for the appellant argued that the respondent could properly only have claimed such sum as he actually spent towards repair of his lorry and that he could not have claimed on the basis of an estimate of costs of parts to be replaced…………………No evidence by any expert was called to prove the exact repair costs. Nor was there any evidence to show what was the pre-accident value of the lorry and the salvage value (if the lorry was indeed a wreck). There was nothing to show if the sum of Kshs. 277,750 could have properly been spent to put the lorry back on the road……..The best evidence in this respect could have been supplied by an automobile assessor.” 15. 16. The foregoing reveals that there are two ways in which a claimant may be compensated for damages for material damage; a. Where the property is repaired and repair costs are proven. In this case, the claimant must prove loss incurred in terms of repair costs by production of receipts for payment of the costs; b. Where the property is beyond repair and written ofi, the claimant may be paid the pre-accident value thereof. If the property can be salvaged, compensation is reached by deducting the salvage value from the pre-accident value. In this case, although the plaintifi claimed to have paid for repairs, no payment receipts were produced in evidence. The plaintifi produced a quotation from City Panel Beaters and Painters Ltd and an invoice from Interspares Ltd. There is no documentary proof to show that the plaintifi incurred any expenses. A quotation and invoice are not proof of payment. Without proof of payment for the repair https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/301/eng@2025-11-25 4

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costs, the plaintifi would have no legal basis to claim special damages. There is even no evidence to show that the motor vehicle was repaired. Disposition 17. In summary, I hold that the plaintifi has failed to prove its case on a balance of probabilities as against the defendants. Consequently, I proceed to dismiss the suit with costs. It is unfortunate that parties entered into a consent on liability but the suit has to sufier this fate. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 25TH DAY OF NOVEMBER, 2025. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/301/eng@2025-11-25 5

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