Sanghani & 2 others t/a RK Sanghani v Trakana Mombasa Ltd (Civil Case E142 of 2022) [2026] KEMC 108 (KLR)

3. c. Failing to exercise and/or to maintain any or proper or efiective control of motor vehicle registration number KBU 519K; d. Driving at an excessive speed in the circumstances of the situation and/or condition at the material time; e. Driving the aforesaid motor vehicle without any signs or indication; f. Overtaking while it was not safe. The plaintifis averred that the accident and loss and damage was caused solely and exclusively by the negligence, recklessness and/or carelessness of the defendant and/or the defendant’s driver who had the defendant’s authority to drive motor vehicle registration number KBU 519K. That as a result of the accident, the plaintifis’ motor vehicle was written ofi. The plaintifis pleaded the particulars of loss/ special damages and prayed for judgment against the defendant for: a. Special damages of Ksh. 7,613,310/=; b. Interest on the above sum at court rates from the date of filing suit until payment in full; c. Costs of this suit; The Defence 4. The defendant entered appearance on 11/1/2023 and filed a statement of defence on the same day. The defendant denied that the plaintifis were the registered owners of motor vehicle registration number KCD 942U and that it was the registered owner of motor vehicle registration number KBU 519K, denies the occurrence of the accident and that the same was caused by negligence on its part or its driver and denied all the particulars of negligence pleaded in the plaint. In the alternative, the defendant averred that if the accident occurred, which was denied and if the plaintifis’ motor vehicle was extensively damaged, which was also denied, then the plaintifis’ driver wholly and/or substantially contributed to the occurrence of the accident. 5. The defendant pleaded the following particulars of negligence against the plaintifis’ driver: 6. a. Not being observant or having proper outlook of other road users; b. Ramming into the defendant’s motor vehicle; c. Failing to give way to motor vehicle registration number KBU 519K; d. Failing to slow down or stop in time to avoid the accident; e. Causing the said accident; f. Failing to slow down, brake, stop or swerve to avoid causing the accident; g. Failing to notice the defendant’s motor vehicle in time or at all; h. Voluntarily assuming risk. The defendant further averred in the alternative that if indeed the accident occurred, which was denied, then the same was outside the scope and control of the defendant’s driver and hence, he cannot be held liable as he could not, notwithstanding the exercise of all reasonable diligence, skill and care, have exercised any control over the accident. The defendant prayed that the plaintifis’ suit be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 2

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The Evidence The plaintifi ’s case 7. Four witnesses testified on behalf of the plaintifis. PW 1 Mbugua Njoroge testified that he was a motor assessor. That he did an assessment of motor vehicle registration number KCD 942U. The witness produced his report in evidence. PW 2 Abdi Hassan adopted his statement filed in court as part of his testimony. His evidence was that on 7/10/2019 in the morning, he was driving at Kambu area when he saw a truck overtaking another truck. That the overtaking truck moved to PW 1’s lane. PW 1 applied brakes and hooted but there was a head on collision between the two motor vehicles. The witness blamed the driver of KBU for the accident. That the sad driver overtook and rammed into the motor vehicle that the witness was driving. 8. PW 3 Nautamlal Ravji Sanghani (2nd plaintifi) also adopted his statement filed in court as part of his testimony. His evidence was that he was a co-proprietor of RK Sanghani, the owner of motor vehicle registration number KCD 942U. That he was claiming Ksh. 7,613,310/= following the loss and damage to the motor vehicle as a result of the accident. The witness produced in evidence their claim supporting documents. PW 4 Chief Inspector Michael Mbugua testified that he was the investigating oficer in respect of the accident when he was based at Mtito Andei police station. The witness confirmed occurrence of the accident involving the two motor vehicles. PW 4 stated that upon investigations, he blamed the driver of KBU 519K/ZD 8445 for the accident. That the said driver veered to the rightful lane of motor vehicle registration number KCD 942U/ZC 6762 and caused a collision between the two motor vehicles. The witness produced the police abstract in evidence, although none is on record. The defence case 9. The defendant called one witness in support of their case. DW 1 Yaseen Akbar Ali adopted his statement filed in court as part of his testimony. He stated that he worked for the defendant as the breakdown and accident mechanic. That on the material day, he was called and informed of the accident involving the two motor vehicles. The witness stated that he proceeded to the scene and arrived before the police. That he found both motor vehicles on the rightful lane of the defendant’s motor vehicle. The witness took photographs at the scene which he produced in evidence. His opinion was that the plaintifi’s motor vehicle had veered to the rightful lane of the defendant’s motor vehicle, thereby causing a collision. Facts Not In Dispute 10. From the evidence on record, the following facts are not in dispute: a) An accident occurred on 7/10/2019 at Kambu area along Mombasa-Nairobi Highway involving motor vehicles registration numbers KCD 942U and KBU 519K; b) The two motor vehicles were headed in opposite directions; c) Motor vehicle registration number KCD 942U belonged to the plaintifis operating under the name and style of R.K. Sanghani whereas motor vehicle registration number KBU 519K belonged to the defendant; d) Both motor vehicles were damaged as a result of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 3

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Main Issues For Determination 11. In my opinion, the main issues for determination are as follows: i. Whether the suit is competent; ii. Whether the defendant’s driver is liable for the accident and thus to blame; iii. Whether the plaintifis sufiered loss and damage as a result of the alleged accident; iv. Whether the plaintifis are entitled to damages as against the defendant and if so, the nature and quantum thereof; v. Who should bear the costs of this suit? The Plaintifi ’s Submissions 12. The plaintifis relied on their evidence on record and submitted that the defendant’s driver was to blame for the accident. That the defendant did not challenge the plaintifis’ evidence. The plaintifis submitted that the defendant did not call any evidence to defend itself. The plaintifis urged the court to hold the defendant 100% liable. On quantum, the plaintifis argued that they had specifically and strictly proven the claim and urged the court to award the amount pleaded plus costs of the suit and interest. The Defendant’s Submissions 13. The defendant relied on the testimony of its witness who stated that he arrived at the scene and found both motor vehicles on the rightful lane of the defendant’s driver. That the assertion that the defendant’s motor vehicle encroached on the rightful lane of the plaintifis’ motor vehicle was not supported by any corroborative evidence. The defendant argued that PW 3 did not produce any authority that allowed him to institute the suit on behalf of other co-proprietors of RK Sanghani. The defendant submitted that RK Sanghani was a registered company and the registered owner of motor vehicle registration number KCD 942U, yet there is no board resolution or written authority authorizing the filing of the suit as required by Order 4 rule 4 of the Civil Procedure Rules. 14. The defendant argued that a company, being a distinct legal person, can only act through a properly sanctioned resolution. That the absence of such authority renders the institution of these proceedings procedurally defective and calls into question the Plaintifis’ locus standi. The defendant submitted that a company can only sue in its own name with the sanction of its Board of Directors or by a resolution. The defendant relied on the authorities of Bactlab Limited v Bactlabs East Africa Limited & 5 others [2021] eKLR and East African Portland Cement Co. Ltd v Capital Markets Authority & 4 others (2014) eKLR. The defendant contended that the suit is incompetent and fatally defective. 15. Nonetheless, the defendant submitted that PW 2 ofiered no satisfactory explanation as to how such a collision occurred if he remained strictly within his lawful lane and for his failure to take evasive action. The defendant argued that other than PW 2, there was no independent eyewitness to corroborate his version of events. That in contrast, the photographic evidence produced by DW 1 clearly shows that both vehicles were positioned on the defendant’s motor vehicle’s lane, a fact that was further confirmed by the Plaintifi’s driver during the hearing when cross-examined. The defendant argued that PW 4 did not produce the sketch map indicating the point of impact, direction of travel, and final resting positions of the vehicles. 16. The defendant argued that the absence of charges against the defendant’s driver further weakens the probative value of the police conclusion. That injury alone does not bar prosecution where https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 4

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investigations establish culpability. The defendant contended that the plaintifis had not proven negligence and urged the court to dismiss the suit with costs. The defendant relied on the following authorities: a) Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR; b) Equator Distributors v Joel Muriu & 3 others [2018] KECA 53 (KLR); c) Gatonye & another v Kinyae & 2 others [2025] KEHC 11706 (KLR; d) Z O S & C A O [Suing as the Legal Representatives in the Estate of S A O [Deceased] v Amollo Stephen [2019] KEHC 9268 [KLR; e) Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR). 17. On quantum, the defendant submitted that the plaintifis had failed to prove the pre-accident value of the motor vehicle. That the accident occurred on 7th October 2019, yet the Plaintifis rely entirely on an assessment report prepared more than two years later, on 26th November 2021. The defendant argued that the assessment report reveals that some parts of the vehicle were not tested, while others were missing, and no explanation was ofiered for these gaps. That the evidence shows that the assessors never visited the accident scene, meaning the missing parts could have been removed or stolen. This undermines the credibility of the report. It was further argued that the report calculated the preaccident value by the use of age-based calculations alone which do not refiect the true market value, which should consider mileage, mechanical condition, maintenance, usage, and comparable market sales. None of this evidence was provided. 18. The defendant submitted that the salvage value of Ksh. 300,000/= is also unverified. That no auction records, bids, or independent valuations were produced to support it. According to the defendant, even if considered expert evidence, Section 48 of the Evidence Act requires that opinion be based on facts and a clear methodology. That the report fails that standard: it is unverified, uncorroborated, conducted years after the accident, and relies on incomplete and untested information. The defendant contended that the plaintifis have failed to strictly prove the pre-accident value or the extent of the loss. The assessment report is speculative and cannot form the basis of a claim. The defendant urged the court to reject the Plaintifi’s assessment report entirely. In the alternative, the defendant submitted that if the court is minded to make any award, it should substantially reduce the value to refiect a reasonable market value based on verifiable evidence. 19. The defendant submitted that the claim for loss of user at Ksh. 30,000/= for 90 days was not substantiated. That no documentary proof, contracts, work logs, or financial records were produced to show that the vehicle generated income or that the Plaintifi sufiered actual loss during the alleged 90-day period. The defendant argued that loss of user is in the nature of special damages which ought to be specifically pleaded and strictly proven. The defendant urged the court o disallow the claim and dismiss the plaintifis’’ claim with costs. Analysis And Determination 20. I will address the issue of locus standi or competence of the suit first. The defendant argues that R.K. SANGHANI is a company and as such, there ought to be a board resolution authorizing the filing of the suit. That a company is a distinct legal person and ought to sue in its own name. The defendant further argued that there was no evidence to show that PW 3 had authority from the other proprietors to act on their behalf. To begin with, there is no evidence to show that R.K. SANGHANI is a company incorporated under the Companies Act. When PW 3 was cross0examined by counsel for the defendant, he indicated that R.K. Sanghani was a partnership and later stated that it was a business name. A https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 5

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partnership and business name do not mean the same thing. The two are registered under two difierent statutes. Going by PW 3’s latter position, I would treat R.K. Sanghani as a business name. This explains why the suit was instituted in the names of the alleged owners of the business. 21. 22. In view of the foregoing, all arguments concerning a company must fail. The defendant also raised the issue of the authority of PW 3 to act on behalf of the other plaintifis. The motor vehicle KCD 942U, as per the certificate of registration or logbook, belongs to R.K. Sanghani. PW 3 stated that he and the other co-plaintifis were the owners of R.K. Sanghani. PW 3 did not produce any documentary evidence to that efiect but there is no contention that the plaintifis are the owners of the business. What is in contention is whether PW 3 had authority to act for the other plaintifis. Order 1 rule 13 of the Civil Procedure Rules provides: (1) Where there are more plaintifis than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. (2) The authority shall be in writing signed by the party giving it and shall be filed in the case.” In the instant case, despite the suit being instituted in the names of the three owners, only PW 3 (2nd plaintifi) swore the verifying afidavit. PW 3 did not even state in the afidavit that he was swearing the same on his behalf and with the authority of his co-plaintifis. No written authority from the other plaintifis was filed. When PW 3 was cross-examined by counsel for the defence, he stated that he had authority of his co-plaintifis to act. As already indicated, so such authority was filed. Order 4 rule 1(3) expressly provides: “ Where there are several plaintifis, one of them, with written authority filed with the verifying afidavit, may swear the verifying afidavit on behalf of the others.” (Emphasis supplied) Sub-rule (6) thereof provides that: “ The court may of its own motion or on the application by the plaintifi or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.” 23. The foregoing implies that where there are several plaintifis and only one of them swears the verifying afidavit without a written authority filed with the verifying afidavit, the suit or plaint is incompetent and liable to be struck out. This issue has been litigated upon and the superior courts have pronounced themselves authoritatively. In Research International East Africa Ltd v Julius Arisi & 213 Others [2007] KECA 506 (KLR), the Court of Appeal had this to say: “ In that case, each of the plaintifis is personally responsible for the conduct of his own suit. In our view, none of the 214 plaintifis has any right to take any steps in the suit on behalf of any other plaintifi without an express authority in writing. Thus, Julius Arisi cannot take any step in the suit on behalf of all the other plaintifis including filing a verifying afidavit unless he has been expressly authorized by any of the plaintifis to so act as provided by Order 1 rule 12 (1) CP Rules. In this case, Julius Arisi deposes in the verifying afidavit that he has been authorized by all the co-plaintifis to swear the verifying afidavit on their behalf and purports to verify the correctness of the averments in the plaint on behalf of the coplaintifis.” (Underlining mine) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 6

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The Court further held: “ In our view, the true construction of rule 1 (2) of Order VII Civil Procedure Rules is that even in cases where there are numerous plaintifis, each plaintifi is required to verify the correctness of the averments by a verifying afidavit unless and until he expressly authorizes any of the co-plaintifis or some of them in writing, and, files such authority in the case, to file a verifying afidavit on his behalf in which case such a verifying afidavit would be suficient compliance with the rule. Moreover, the Grace Ndegwa’s case (supra) and rule 12(1) of Order I CP Rules leave no doubt that one or more of the co-plaintifis can validly file an afidavit verifying the correctness of the averments of the plaint on behalf of the other co-plaintifis with their authority in writing.” 24. The above authority was before the promulgation of the current Constitution. However, there are post-2010 authorities which have afirmed the position. In Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2015] KECA 572 (KLR), the Court of Appeal afirmed the position in the authority of Research International (supra) but reversed the order of striking out the suit and reinstated it with leave to the plaintifis to file and serve compliant verifying afidavit or afidavits within thirty (30) days. Similarly, in Moses Onchiri (Suing on his own behalf and in the interest of 475 other persons being former inhabitants of KPA Maasai Village, Embakasi within Nairobi) v Kenya Ports Authority, City Council of Nairobi, Minister for Internal Security & Provincial Administration, Minister for Lands & Attorney General [2017] KECA 642 (KLR), the Court of Appeal held: 25. Under order 1 Rule 13 aforesaid, where there are more plaintifis than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. It is a mandatory requirement that the authority be in writing, signed by the party giving it and filed in the case.” 26. It is clear to me that the plaintifis’ suit is defective to the extent that there are no verifying afidavits by the 1st and 3rd plaintifis nor a written authority signed by them empowering the 2nd plaintifi to plead and act on their behalf. Whereas PW 3 has locus standi to institute the suit in his own interest, he could not do so in the names of the other plaintifis without their written authority. Does this render the suit fatally defective and liable to be dismissed? The incompetency of the suit was not raised by the defendant in its defence nor did the defendant file an application to strike out the suit on that ground. The issue was raised when PW 3 was cross-examined by counsel for the defendant and extensively addressed in the defendant’s submissions. 27. The case is at the judgment stage. In the circumstances, it is too late in the day to order the plaintifis to comply with the provisions of the law. The plaintifis did not make any attempts to comply with the law, even after the issue had been raised. The defect is procedural but touches on the 2nd plaintifi’s capacity to act on behalf of the other plaintifis. It is not a locus standi problem in the strict sense. It is primarily a procedural defect, though one with serious consequences. PW 3 has a cause of action in his own right, but the problem arises only in so far as he purports to act on behalf of the other plaintifis without authority. Ordinarily, PW 3’s own claim would be found to be competent but the claim of his co-plaintifis would be incompetent. 28. However, in the circumstances of this case, PW 3’s claim cannot be severed from the claim of his coplaintifis. It is not distinct from the claim by the other plaintifis. One co-owner cannot unilaterally institute a suit on behalf of a jointly owned business without involving or obtaining authority from the others, unless a recognized legal exception applies. In a partnership or business name, the rights and obligations belong to the partners or business owners jointly. This implies that all the partners or https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 7

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business owners should ordinarily be parties to the suit. In this case, the interest of the 2nd plaintifi cannot be separated from that of his co-plaintifis. They either triumph together or fall together. If the 2nd plaintifi files a suit purporting to act for the others without authority, it raises an issue of both locus standi and a procedural defect regarding representation. Locus standi arises in the sense that he would have no capacity to act on behalf of the other plaintifis without authority. 29. The position from the superior courts is that whereas failure to file a written authority renders the suit defective, the same is curable. It is curable because the ofiending party or parties may be accorded an opportunity to cure the defect by filing the authority in compliance with the law. The authorities I have come across relate to circumstances where an objection is raised before the suit is heard. At that stage, it is not dificult to sustain the suit and cure the defect. The circumstances of this case are difierent. The court is dealing with the objection at judgment stage. I cannot at this stage direct the plaintifis to file the authority then proceed to write the judgment. 30. I am aware of the provisions of Article 159(2) (d) of the Constitution of Kenya that enjoin the courts to administer substantive justice without undue regard to procedural technicalities. However, the defect herein goes beyond a mere procedural defect. It touches on the competency of the suit and capacity of the 2nd plaintifi to act on behalf of the other plaintifis without their express written authority. As already indicated, the issue was raised during the hearing of the plaintifis’ case but they did not bother to move the court so as to remedy the situation. The issue of locus standi is not a mere procedural technicality but a substantive question that goes to the root of the Court’s jurisdiction. It concerns the legal capacity of a party to institute proceedings and determines whether the Court can properly be moved to adjudicate the dispute. 31. In my considered view, the defect is both procedural and substantive. Its curability depends upon the circumstances of the case and stage of the proceedings. The defect would have been curable had the plaintifis moved the court in good time. They had notice of the defendant’s objection during the hearing but they decided to let it pass. My view is that at this stage of the proceedings, the defect would be fatal to the plaintifis’ case. Curing the defect at this stage would be prejudicial to the defence since the case has already been heard and submissions filed. Curing the defect at this stage would mean reopening the case. I hold that the suit is incompetent. Liability 32. I could be wrong on the issue of competency of the suit. Assuming that I am wrong, I will address the issue of liability. The plaintifis pleaded several particulars of negligence as against the defendant’s driver. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held as thus: “ The burden was always on the plaintifi to prove his case on the balance of probabilities even if the case was heard on formal proof.” 33. There is only one version of how the accident occurred. This version was given by PW 2, the driver of motor vehicle registration number KCD 942U. His version was that the defendant’s motor vehicle veered to his lane and collided with the plaintifis’ motor vehicle. That the defendant’s motor vehicle was overtaking another truck. PW 2’s evidence was corroborated by the investigating oficer in respect of the accident. The defendant relies on photos that were taken by someone who did not witness the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 8

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accident. The defendant argues that the photos show that the collision occurred on the rightful lane of the defendant’s motor vehicle. With all due respect to the defendant, that aspect cannot be ascertained from the photos. The defendant also attempted to mislead the court by stating that the plaintifis; driver admitted that the motor vehicles were on the rightful lane of the defendant’s motor vehicle. That is not on the evidence on record. The evidence of PW 2 was that the collision occurred on his rightful lane. 34. Photographs which do not clearly show the point of impact cannot disprove the testimony of an eye witness. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a particular fact. It was not mandatory for the plaintifis to call another independent witness apart from their driver. The evidence of PW 2 was not controverted by any other evidence. The said evidence, coupled with that of PW 4 clearly shows that the defendant’s driver was negligent and caused the accident. In the authority of Moses Muriithi Njagi v Joseph Njuguna Macharia & 2 others [2016] KEHC 3763 (KLR), the court held: “ Any police oficer who investigates a case relies on what he is told by the witnesses. He also observes the circumstances of the incident and forms his own opinion. Such an oficer takes his own line of thought. He can decide to disagree with the statements given to him by the witnesses if he is satisfied that that evidence is insuficient or false. When testifying in court, such an oficer will be telling the court his own perception of the matter in dispute. That evidence cannot be dismissed as hearsay.” 35. Similarly, in Richa Elvis v Mohamed Ibrahim [2017] KEHC 4862 (KLR), the High court upheld the decision of a Magistrate’s court that relied on the testimony of the police oficer who visited the scene shortly after the accident and conducted investigations. In the authority of Mwangi & another v Wambugu [1984] KECA 13 (KLR), the Court of Appeal accepted the testimony of a police oficer who visited the scene and investigated the accident in the following words: “ For all the foregoing reasons, I am compelled to the conclusion that the appellants are right in their main grounds of appeal, that the learned judge was wrong to reject the evidence of Inspector Muli and his sketch plan as to the point of impact. Unless there was good reason for rejecting the evidence of Inspector Muli as to the point of impact, it was clearly the best evidence on that issue.” 36. The foregoing illustrates that the evidence of the police oficer who investigates an accident has probative value, particularly where it is supported by documents such as sketch maps and motor vehicle inspection reports which would assist the court in ascertaining the point of impact. No sketch map was produced herein. Nonetheless, PW 4 explained why he blamed the defendant’s driver. The defendant did not call their driver or any eye witness to rebut the plaintifis’ evidence. It should be remembered that the standard of proof in civil cases is on a balance of probabilities and not beyond reasonable doubt. I see no reason to disregard the evidence of the plaintifis on who was to blame for the accident. There is absolutely no evidence to show that PW 2 was negligent in any manner. 37. The defendant attacked the police abstract allegedly produced in evidence by PW 4. Although PW 4 mentioned the police abstract and purported to produce it in evidence, there is no such abstract on record. The plaintifi’s list of documents mentions the police abstract as the first document but none was filed in court. It would appear that counsel for the plaintifi was not keen when filing the documents. The abstract must have been left out. Assuming that there was a police abstract showing that the defendant’s driver was to blame, what would be the probative value of such evidence? The https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 9

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defendant has relied on High Court authorities. In the authority of Moses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal observed: “ …….the Police Abstract form that indicated the driver of the 1st respondent’s motor vehicle was to blame for the accident. The respondents did not call any evidence to counter this evidence…………. In the absence of any evidence from the defence, we are persuaded there was preponderance of evidence by the appellant that amounted to a prima facie case and it required to be countered by the respondent.” 38. Further, in David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR), the Court of Appeal had this to say: “ When a collision occurs between two vehicles, as between them, the issue of contributory negligence and apportionment may arise. However, as between a passenger and the owners/ drivers of the two vehicles involved in the accident, liability on the part of the owners is 100% joint and several and no question of apportionment arises unless it is proved the passenger was negligent………………In the instant matter, the respondents pleaded negligence on the part of the deceased. No evidence was led to prove the alleged negligence. The doctrine of res ipsa loquitor applies in cases where the deceased or an injured person is a passenger in a motor vehicle involved in an accident. In such cases, what must be proved is the occurrence of the accident and that the person injured or deceased was a passenger in vehicle.” 31. In this matter, we are satisfied that PW1 testified and tendered in evidence a police abstract proving the occurrence of the accident and establishing that the deceased was a passenger in the motor vehicle. We are fortified in our finding when we consider that the respondents did not lead any evidence to demonstrate that the 2nd respondent, as the driver of motor vehicle KAY 718S, was not negligent.” 39. Similarly, in Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of appeal held: “ The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. Furthermore, the evidence showed that the appellant did not maintain a safe distance, which contributed to the collision. In Kenya Ports Authority v East African Power & Lighting Co. Ltd, (supra), it was held that a police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon. In this case, the appellant failed to adduce any compelling evidence to counter the police abstract or to disprove the causal link between his actions and the damage. The police abstract, while not conclusive, indicated that the appellant was at fault for the rearend collision.” 40. As already indicated, the defendant did not call evidence to rebut the version that was given by PW 2 and supported by PW 4 who investigated the accident. If this version is anything to go by, then it would mean that the defendant’s driver was to blame for the accident. Consequently, I find the defendant’s driver 100% liable for the accident. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 10

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was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. 41. In the case of Morgan v Launchbury[1972] ALL ER 606, it was held, inter alia, that: “ To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 42. Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012]eKLR the Court of Appeal held that: “ Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 43. Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that: “ Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 44 There is no evidence refuting the fact that the driver of motor vehicle registration number KBU 519K drove the said motor vehicle in the course of his employment with the defendant. As a result, I would have found the defendant 100% vicariously liable for the negligence of its driver. Quantum 45. The plaintifis’ claim is in the nature of special damages. They pleaded the special damages as follows: a) Cost of Assessors Report on the spot costs………………Ksh. 12,760/= b) Copy of records…………………………………………………………....Ksh. 550/= c) Loss of use and work 90 days @ Ksh. 30,000/=….…..Ksh. 900,000/= d) Pre-accident value…………………………………………….…Ksh. 7,000,000/= Less salvage………………………………………………………….…Ksh. 300,000/= Total due……..……………………………………………………….Ksh. 7,613,310/= 46. The plaintifis produced an inspection report as well as the Assessor’s report which clearly show that their motor vehicle was damaged as a result of the accident. I am satisfied that the plaintifis sufiered loss. In the authority of David Bagine v Martin Bundi [1997] KECA 54 (KLR), the Court of Appeal held: “ We must and ought to make it clear that damages claimed under the title “loss of user” can only be special damages. That loss is what the claimant sufiers specifically. It can in no https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 11

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circumstances be equated to general damages to be assessed in the standard phrase “doing the best I can”. These damages as pointed out earlier by us must be strictly proved.” 47. Similarly, in Unga Limited & another v James Njuguna Njoroge [2012] KECA 96 (KLR), the Court of Appeal observed: “ We now turn to the issue of loss of user and the issue before us is whether it falls under the heading of special or general damages. The plaint sought for: “general damages for non user of the plaintifi’s motor vehicle.” However, during the hearing, there was no evidence to support the contention that the plaintifi used to get KShs.2,000/- per day after all the deductions. He had no documents to prove that the vehicle was a PSV vehicle and no records like bank statements or ledger books to show the nature of the business. We agree with Mr Kagucia that the learned trial judge must have overlooked and failed to re-evaluate this aspect which falls under the heading of special damages that must not only be pleaded but proved strictly. The loss of user is a specific loss that a claimant has incurred by getting an alternative means of livelihood either through hire of another vehicle; or the amount lost due to the loss of the user if no alternative vehicle was hired should be proved through records of previous earnings by the same vehicle.” 48. 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" 49. 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.” 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.” 50. 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 12

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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.” 51. There is absolutely no evidence to support the claim for loss of user. The same cannot be awarded herein. 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.” 52. The position was also alluded to in the authority of David Bagine (supra) 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.” 53. 54. 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, the assessor’s report indicates the pre-accident value as 7,000,000/=. This was calculated from the date of manufacture (2015) to the date of loss (2019). The report further indicates the salvage value of Ksh. 300,000/=. The difierence would be 6,700,000/=. A receipt for Ksh. 12,760/= for the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 13

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cost of the Assessor as well as Ksh. 550/= for the copy of records were produced in evidence. I would thus have awarded the plaintifis a total of Ksh. 6,713,310/=. Disposition In summary, I hold that the plaintifis have failed to prove their case on a balance of probabilities as against the defendant. The reason, as already indicated is that the suit is incompetent. Consequently, the plaintifis’ suit is DISMISSED with costs to the defendant. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 27TH DAY OF APRIL, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/108/eng@2026-04-27 14

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