Nguyo v SGA Mombasa Limited (Civil Case 1516 of 2021) [2026] KEMC 169 (KLR)

that the Plaintifi, while driving motor vehicle KCH 547R, negligently and recklessly drove into the Defendant’s motor vehicle KAV 916M from behind along the Old Mombasa–Malindi Road at Wema Centre on 23rd September 2018. 5. The Defendant further alleged that the Plaintifi was driving under the infiuence of alcohol and was therefore unable to properly control her vehicle. It attributed the accident entirely to the Plaintifi’s negligence, including excessive speed, failure to keep a safe distance, failure to maintain a proper lookout, failure to brake in time, and driving while intoxicated. 6. The Defendant denied the Plaintifi’s claim for loss and damage, denied having neglected or refused to settle any lawful claim, maintained that no cause of action had been disclosed against it, and prayed for dismissal of the suit with costs. 7. The matter proceeded for hearing on the 8th October 2025 and 11th March 2026 when the Plaintifi called four witnesses, who were cross-examined and the Plaintifi closed its case. The defence called one witness and closed its case and directions given to file written submissions. 8. Parties proceeded to file and serve written submissions; the Plaintifi’s submissions are dated 23rd April 2026. The Defendant’s written submissions are dated 12th May 2026. The salient features are noted by the Court. Issues for Determination 9. Having considered the pleadings, evidence and submissions, the following issues arise for determination: i. Whether the Plaintifi proved negligence against the Defendant. ii. Whether the Plaintifi is entitled to the special damages claimed. iii. Who should bear the costs of the suit. Analysis Liability 10. The burden of proving negligence rests upon the Plaintifi. The Plaintifi was therefore required to establish on a balance of probabilities that the Defendant's driver was negligent and that such negligence caused the accident. 11. The Plaintifi testified that she was lawfully driving along the Old Mombasa–Malindi Road when the Defendant's vehicle, which had been stationary on the roadside, suddenly joined the road and caused the collision. The Plaintifi's evidence was supported by the Police Abstract and police records produced before court. The Police Abstract attributed blame to the driver of motor vehicle registration number KAV 916M. The ownership records produced further confirmed that the Defendant was the registered owner of the said motor vehicle. 12. The Defendant's sole witness was the driver of motor vehicle KAV 916M. He testified that the Plaintifi hit his vehicle from behind and further alleged that she was intoxicated. 13. The Court has carefully evaluated the evidence. 14. While the Defendant relied heavily on the proposition that a driver who collides with another vehicle from behind is ordinarily presumed negligent, that presumption is rebuttable and each case must be https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/169/eng@2026-06-25 2

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determined on its own facts.In the present case, the Plaintifi's evidence regarding the manner in which the accident occurred remained consistent throughout the proceedings. 15. More importantly, the police investigations culminated in a finding attributing blame to the Defendant's driver. Although a police abstract is not conclusive proof of liability, it remains relevant evidence which the court is entitled to consider alongside the totality of the evidence. 16. The allegation that the Plaintifi was intoxicated at the time of the accident was not supported by any documentary evidence, breathalyser results, medical report, toxicology report or independent witness testimony. It remained a mere allegation by the Defendant's driver. Courts have consistently held that allegations of intoxication must be supported by evidence. 17. The Defendant did not call the investigating oficer or produce any investigation report contradicting the police findings. Neither did the Defendant produce any independent evidence demonstrating that the Plaintifi was speeding, intoxicated or otherwise negligent. 18. The Court therefore finds that the Plaintifi's evidence was more probable and better supported by the documentary record than the Defendant's version. 19. Consequently, I find that the Plaintifi has proved on a balance of probabilities that the accident was caused by the negligence of the Defendant's driver. 20. Liability is therefore entered against the Defendant at 100%. Quantum 21. The Plaintifi seeks special damages amounting to Kshs. 591,780/= particularized as follows: Particulars Amount (Kshs.) Repair costs 504,275 Loss of use 30,000 Towing charges 30,000 Tracing fees 18,145 Assessment fees 6,860 Re-inspection fees 2,500 Total 591,780 22. Repair Costs – Kshs. 504,275/=: The Plaintifi produced assessment reports, repair invoices, receipts and payment documentation demonstrating that the vehicle underwent repairs at a cost of Kshs. 504,275/=. The Court is satisfied that this item was specifically pleaded and strictly proved. Awarded: Kshs. 504,275/=. 23. Towing Charges – Kshs. 30,000/=: Receipts and supporting documentation were produced demonstrating payment for towing services following the accident. Awarded: Kshs. 30,000/= 24. Tracing Fees – Kshs. 18,145/=: The Plaintifi produced a Payment Requisition Voucher from Liaison Insurance and supporting invoice from PIN Eye Insurance Investigators showing tracing expenses. However, the documentary evidence produced supports payment of Kshs. 17,095/=. 25. Special damages: must be proved with precision and the court can only award what was strictly proved. Awarded: Kshs. 17,095/=. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/169/eng@2026-06-25 3

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26. Assessment Fees- Kshs. 6,860/=: Assessment reports and supporting receipts were produced. Awarded: Kshs. 6,860/= 27. Re-inspection Fees – Kshs. 2,500/=: The Plaintifi produced evidence of re-inspection expenses. Awarded: Kshs. 2,500/= 28. Loss of Use – Kshs. 30,000/=: The Plaintifi testified that the vehicle was used as a taxi and that she hired another vehicle during the repair period. However, no documentary evidence was produced showing actual earnings, business records, daily returns, hiring agreements, or receipts evidencing loss sufiered. 29. The Court of Appeal in David Bagine v Martin Bundi [1997] eKLR emphasized that claims for loss of use constitute special damages which must be specifically pleaded and strictly proved. 30. Although the Plaintifi testified that she incurred loss during the repair period, the evidence presented falls short of the strict proof required. Accordingly, this head of claim is declined. 31. The Plaintifi is awarded: Head of Claim Award (Kshs.) Repair costs 504,275 Towing charges 30,000 Tracing fees 17,095 Assessment fees 6,860 Re-inspection fees 2,500 Loss of use 0 Total 560,730 Disposal 32. Judgment is hereby entered for the Plaintifi against the Defendant as follows: a. Liability is apportioned at 100% as against the Defendant. b. The Plaintifi is awarded special damages of Kshs. 560,730/=. c. Interest on the special damages shall accrue at court rates from the date of filing suit until payment in full. d. The Plaintifi shall have the costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/169/eng@2026-06-25 4

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