Wanjohi v Ultimate Hauliers Ltd & another (Civil Suit E145 of 2025) [2026] KEMC 540 (KLR)

4. Further, the Plaintiff averred that, arising from the accident, the damage to the trailer was assessed at Kshs. 445,000/=, and that she spent Kshs. 6,000/= in motor vehicle assessment fees, and Kshs. 550/= in motor vehicle search. She added that the damage to the trailer that she was using for transport business occasioned her loss of user thus her claim for loss of user for at least 45 days. 5. The 1st Defendant entered appearance and filed a Statement of Defence dated 16th September 2025 denying joint ownership of the Defendants’ motor vehicle, the occurrence of the accident, and the damage to the trailer. 6. The 1st Defendant pleaded in the alternative that if the accident herein occurred, then the same was wholly or substantially caused by the trailer’s driver’s negligence as set out in paragraph 7 of their Statement of Defence. 7. This matter was thereafter set down for hearing for the parties herein to prove their respective cases on a balance of probabilities. EVIDENCE Plaintiff’s Case 8. PW1 No. 76835 PC Isaac Njuguna of Bungoma Traffic Base investigated the circumstances under which the accident occurred. His testimony was that the accident occurred when the Defendants’ motor vehicle which was headed in the Malaba general direction lost control and swerved on the right to avoid hitting a matatu ahead of it only to hit the trailer. He blamed the Defendants’ driver for the occurrence of the accident. 9. He added that the accident was reported at Bungoma Police Station vide OB. No. 07/05/09/2024.

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10. In cross-examination, he clarified that the accident occurred on 05 th September 2024. He reiterated that he visited the scene of the accident. He added that the point of impact was on the prime mover’s right side mirror and the trailer. 11. He produced the trailer’s inspection report and the police abstract herein and a certified copy of the OB extract for OB. No. 07/05/09/2024 as exhibits. 12. PW2 George Mathu an assessor at Maka Automotive Works produced the trailer’s assessment report dated 06th September 2024 showing that the damaged trailer was to be repaired at a cost of Kshs. 445,000/=. He also produced a receipt for Kshs. 6,000/= to prove that he charged the Plaintiff Kshs. 6,000/= for the inspection report. 13. PW3 James Wanjohi was the Plaintiff’s motor vehicle’s driver at the time of the accident. He adopted his witness statement herein as his evidence in chief. 14. He recalled that the accident occurred when the Defendants’ motor vehicle was overtaking a matatu ahead of him only to encroach unto the trailer’s lane. 15. In cross-examination, he stated that he held a valid driving licence at the time of the accident but the same had not been filed. He added that he swerved towards the outer side of his lane to avoid the occurrence of the accident but the accident still occurred. 16. PW4 Joyce Wairimu Wanjohi adopted her witness statement dated 06th January 2025 as her evidence in chief. She testified that she was the owner of the prime mover and the trailer herein. She produced the documents in her list of documents not produced by the other witnesses as exhibits. 17. In cross-examination, she conceded that her business name was Joysam Investments not Joysum Investments Limited as captured in the Plaint.

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18. She also conceded in re-examination that paragraph 5 of her Plaint had a clerical error on the prime mover’s registration number. She stated that the prime mover’s correct registration number was KCW 796 E as captured in paragraph 3 of the Plaint. Defendant’s Case 19. The 1st Defendant 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.” 20. 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.” 21. the Guided by the authorities above, it follows that the averments in 1st 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 AND DETERMINATION 22. This court has given due regard to the Plaintiff’s pleadings, the evidence, and the written submissions on record as well as the authorities relied upon by the parties.

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23. The police abstract on record shows that the accident herein occurred on 05 th September 2024 at Buema area along Bungoma – Malaba road at around 2000hrs and that the same was reported at Bungoma Police Station vide OB. No. 07/05/09/2024. The said police abstract is a public document. The law in this jurisdiction is that there is a rebuttable presumption of truth in the entries made by public officers in public documents (see section 83 of the Evidence Act). 24. In the absence of evidence to controvert the contents of the police abstract on record, this court is inclined to find that the accident herein occurred as set out in the said police abstract. 25. In the circumstances, this court finds and holds that the issues for determination in this case are liability and quantum. Liability 26. PW1 and PW3’s evidence was that the accident occurred when the Defendant’s motor vehicle tried to overtake a matatu ahead of it, only to veer into the trailer’s lane, thus leading to the occurrence of the accident. 27. It is noteworthy that the 1st Defendant did not lead any evidence to substantiate the particulars of negligence attributed to the Plaintiff’s driver in their Statement of Defence. 28. The 1st Defendant took issue with the Plaintiff’s failure to file his driving licence and the failure by the Plaintiff to place before this court the accident’s sketch plan for this court to fully appreciate the circumstances under which the accident occurred. 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 can not clearly map out how the accident occurred.

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29. 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. 30. In this 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. 31. On whether the Plaintiff’s driver’s failure to prove on a balance of probabilities that they held a valid driving licence at the time of the accident points to negligence on their part as submitted by the 1 st Defendant, this court takes the position that the core issue in determining liability and negligence is causation. 32. Therefore, the mere fact that a person did not possess a valid driving licence at the time of the accident is not proof of negligence on the part of that driver. Instances abound where an unlicensed driver may be more careful on the road than a licensed driver. Negligence can only be proved through an analysis of the circumstances under which an accident occurred. This court finds support from Kennedy Macharia Njeru v Packson Githongo Njau & another [2019] KEHC 5377 (KLR), where the court held thus: “In Tom Obita Ndago & Another Vs. Alfonse Omondi Otieno [2015] eKLR, where the court considered an allegation by the defence during trial in the lower court that the fact that the driver was carrying an excess passenger could have caused the accident was refuted by the appellate court which stated; “Thus the rider and his passengers weight was not the reason why the riders motor cycle fell but the fact that the 1st appellant hit them”.

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This is the same situation here, the cause of the accident was the respondents driver (DW1) who overtook and in the process hit the motor cycle which was properly being driven on its lane but not because the driver had no driving licence.” 33. PW3 witnessed the accident while PW1 visited the scene of the accident after the accident had occurred. Their evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 34. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 35. The Plaintiff’s uncontroverted evidence on the circumstances under which the accident occurred shows that the accident herein occurred when the Defendant’s driver overtook the matatu ahead of him when it was not safe to do so, only for the said driver to ram into the Plaintiff’s trailer in the opposite lane. 36. PW3 explained in cross-examination that he was on the extreme left side of the outer lane when the accident occurred. There was nothing much he could do to prevent the occurrence of the accident. 37. The above uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence on the part of the Defendants’ driver which could only be dislodged by the Defendants’ driver. Unfortunately, the Defendants chose not to call their driver as a witness in this case. The 1 st Defendant did not give any plausible reason why they failed to call their driver to shed light on the circumstances under which the accident occurred.

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38. The foregoing shows that the 1st Defendant deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 39. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: ‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 40. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify only leads to the inevitable conclusion that had the said driver testified, his evidence would have been adverse to the Defendant. 41. The upshot of the above is that the Defendants failed to dislodge the prima facie case of negligence established against them by the Plaintiff. 42. There is nothing on record to suggest that the Defendants’ driver was driving the Defendants’ motor vehicle at the time of the accident without authority from the Defendants. He was not on a frolic of his own. He was the Defendants’ agent at the time

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of the accident. The Defendants must therefore be held vicariously liable for the occurrence of the accident. 43. It is against this backdrop that this court finds the Defendants 100% jointly and severally 100% liable for the occurrence of the accident herein. Quantum (a) Material Damage 44. The Plaintiff placed before this court a motor vehicle assessment report dated 06th September 2024 from Maka Automotive Works showing that the damage to her trailer was to be repaired at a cost of Kshs. 445,000/=. 45. The 1st Defendant, on the other hand, submitted that the Plaintiff was not entitled to the claim for Kshs. 445,000/= since she had not proved ownership of the damaged trailer. The 1st Defendant invited this court to consider the contradictions in the Plaintiff’s Plaint on the identity of her motor vehicle, the errors in the police abstract on record, the contradictions in the Plaintiff’s description in the Plaint, and the failure by the Plaintiff to place before this court her trailer’s ownership documents to find that the Plaintiff was not entitled to the damages sought. 46. The evidence on record shows that the errors in paragraph 3 and 5 of the Plaint as well as the error on the dates in the police abstract were well explained by PW1 and PW4. Those errors were by and large clerical/topographical error which did not prejudice the Defendants in any way whatsoever. Nothing turns on those clerical/topographical errors. 47. It is given that the Certificate of Registration dated 1th August 2013 produced by the Plaintiff describes the Plaintiff as Joyce Wairimu Wanjohi trading as Joysam Investment. The Plaint, on the other hand, describes the Plaintiff as Joyce Wairimu Wanjohi trading

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as Joysum Investment Limited. The police abstract on its part shows that the trailer was owned by Joysum Investments Limited at the time of the accident. 48. The motor vehicle assessment report dated 06th September 2024 from Maka Automotive Works shows that they were instructed by J. W. Wanjohi/Joysam Investment to assess the trailer. 49. Clearly, taking the totality of the evidence on record into consideration, this court finds that the trailer herein was owned by Joyce Wairimu Wanjohi trading as Joysam Investment Limited at the time of the accident. 50. The foregoing shows that there is a misdescription of the Plaintiff in the Plaint herein. This begs the question of whether the misdescription of a party in pleadings is fatal to a case. 51. The answer to this question is found in Order 1, Rule 9 and 10 of the Civil Procedure Rules. These two provisions stipulate as follows: Rule 9. No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Rule 10. (1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit…

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52. The above rules have been a subject of several judicial pronouncements. The Court of Appeal in William Kiprono Towett & 1597 Others vs Farmland Aviation Ltd & 2 Others (2016) eKLR held that: “…Most critically Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. We reproduce the same hereunder: No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” This is further supported by Article 159(2)(d) of the Constitution which abhors procedural technicalities at the expense of substantive justice. The said article stipulates that: “In exercising judicial authority, the courts and tribunals shall be guided by the following principles .........(d) justice shall be administered without undue regard to procedural technicalities.” 53. Finally, Mabea J in Jun v Yan & 2 others (Civil Case E019 of 2024) [2025] KEHC 2978 (KLR) rendered himself as follows: “The first point was that there was inconsistency in the description of the plaintiff. Notwithstanding the many authorities cited in support of this point, the Court does not find any merit on it. Firstly, the suit cannot be rejected on the ground that the name of the plaintiff is subsequently described otherwise than it was described in the primary pleading.”

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54. The common thread running through the authorities above is that the misdescription of a party does not render a suit fatally defective. 55. The foregoing inclines this court to hold and find that the totality of the evidence on record proved on a balance of probabilities that the Plaintiff is a proper party to this suit and that she is the owner of the trailer she seeks damages for arising from the accident herein. 56. There is no evidence on record to controvert the contents of the motor vehicle assessment report dated 06th September 2024 from Maka Automotive Works showing the cost of repairing the Plaintiff’s trailer. 57. It has been held times without number in this jurisdiction that an uncontroverted motor vehicle assessor’s report is sufficient proof of damage to a motor vehicle and the cost of repairing such a damaged motor vehicle. This position is fortified by the holding of the Court of Appeal in Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya ( 2010) eKLR, where the court stated thus: “ Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are Common items and any price which the assessor might have given couldbe counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor's report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence. The Court had the right to accept or reject his opinion if the circumstances so dictated. The respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate Courts in the concurrent decision they came to.

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Indeed, the decision of David Bagine v. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor's report would provide acceptable evidence to prove the value of material damage to a motor vehicle.” 58. Guided by the authority above, this court finds and holds that, arising from the accident herein, the Plaintiff’s trailer was damaged as pleaded in the Plaint and the said trailer was to be repaired at a cost of Kshs. 445,000/=. (b) Special Damages 59. The Plaintiff pleaded for an award for Special Damages of Kshs. 6,550/= broken down as follows: a) Motor vehicle Assessment fees – Kshs. 6,000/= b) Motor vehicle search certificate– Kshs. 550/= 60. The law in this jurisdiction is that special damages must be pleaded and strictly proved. This legal position was reiterated by the Court of Appeal in Herbert Hahn v Amrik Singh [1985] eKLR as follows: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequence 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 nature of the acts themselves.” 61. This court will proceed to determine whether the Plaintiff strictly proved the Special Damages of Kshs. 6,550/=. 62. The Plaintiff placed before this court receipts for specials from NTSA and Maka Assessors, which proved the pleaded Special Damages of Kshs. 6,550/=.

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63. Given the foregoing, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 6,550/=. (c) Loss of user 64. The Plaintiff pleaded in paragraph 8 of her Plaint that the accident denied her use of the trailer for transport business and that, as a result, she was entitled to general damages for loss of use for at least 45 days. 65. She simply testified that she used to use the trailer for transport business, and that the accident occasioned her loss of user hence her claim from the date of the accident to date. 66. It is given that the Plaintiff was deprived of the use of her trailer after its damage. There is no dispute that if, at all, the Plaintiff used the trailer for business at the time of the accident, she is entitled to damages for loss of use during the period such a motor vehicle is under repair upon proof of the loss to the required standards. In vol. 12 of Halsbury’s Laws of England (4th Ed.) at paragraph 1164, it is stated as follows regarding this claim: “where a profit-earning chattel, that is a chattel used by the plaintiff in the course of his business is damaged or destroyed the plaintiff is entitled to loss of profits during the period which is reasonable required to replace the lost article in the market. The cost of a substitute, reasonable hired may provide the measure of damages.” 67. A claim for loss of user is a claim for Special Damages. That means that such a claim must not only be pleaded, but it must be strictly proved. To this end, this court places reliance on Ryce Motors Limited & Another –v- Elias Muroki [1996] KECA 30 (KLR), where the Court of Appeal stated as follows on this subject: There are umpteen authorities of this court to say that special damages must not only be specifically pleaded but must be strictly proved. Such authorities are now legion. The plaintiff simply gave evidence to the effect that his matatu was bringing him income of Shs. 4500/= per day. He did not support such claim by any acceptable evidence. There was absolutely no basis on which the learned judge could have awarded the sum of Kshs. 2,830,500/= for special damages and we set aside the award in its entirety.

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68. A reading of the authority above shows that a party claiming loss of use cannot simply rely on his oral testimony in support of such a claim. A claim for loss of user must be supported by cogent evidence. 69. The Plaintiff herein simply stated that she lost the use of her trailer as a result of the accident. 70. The Plaintiff needed to place before this court proof that the trailer was being used for transport business at the time of the accident. This could have been easily proved through her transport business permit, income tax returns, or any other relevant document of evidential value. Her transport business's daily or monthly income could also have been proved by documents like income records, bank statements, or even M-Pesa statements. She failed to place such evidence before this court. 71. In the absence of credible evidence by the Plaintiff to support his claim for damages for loss of user, the Plaintiff must be reminded of the words by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177: “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", 72. Awarding general damages for loss of user in the absence of the evidence alluded to above will be akin to this court descending into the arena of speculation. That is a path this court declines the invitation to take. 73. It is for the reasons above that the Plaintiff’s claim for general damages for loss of user is dismissed. DETERMINATION 74. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally for: a) Liability - 100% b) Material Damage / Repair Costs – Kshs. 445,000/=

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c) Special Damages – Kshs. 6,550/= 75. The material damage/repair costs awarded will accrue interest at court rate from the date of this judgment till payment in full, while the special damages will accrue interest at court rate from the date of filing this suit till payment in full. 76. The Plaintiff will have the costs of this suit. 77. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 14th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Owuor for the Plaintiff Ms. Njeri for the Defendants C/A: Mr. Rioba

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