Ngwandaru v Onyara & another (Civil Suit E506 of 2024) [2026] KEMC 794 (KLR)

3. He further pleaded that the assessment of the damage revealed that the motor vehicle was to be repaid at a cost of Kshs. 275,000/= plus V.A.T of Kshs. 44,000/=. He added that he had spent Kshs. 6,000/= in procuring the motor vehicle’s assessment report, and Kshs. 1,100/= in obtaining the trailer’s registration details. 4. The Plaintiff blamed the occurrence of the accident on the Defendant’s driver’s negligence as set out in paragraph 8 of the Plaint. In the circumstances, he pleaded that the Defendants were vicariously liable for their driver’s acts or omissions. 5. The Plaintiff also averred that he used to use his motor vehicle for delivery vehicle (sic), earning a monthly income of Kshs. 10,000/= per day, thus prayed for loss of user from the date of the accident until this matter is fully determined. 6. The Defendants neither entered appearance nor filed a Statement of Defence despite being served with the Plaintiff’s pleadings and the Summons to Enter Appearance. 7. Consequently, an interlocutory judgment was entered against the Defendants. This matter, therefore, was heard through formal proof. EVIDENCE Plaintiff’s Case 8. PW1 Edward Kimani Gwandaru adopted his witness statement dated 16th October 2024 as his evidence in chief. His testimony was a rendition of the averments in his Plaint, which this court needs not reproduce here. He added that the damage to his motor vehicle had caused him to lose his daily income of Kshs. 10,000/=. 9. He produced all the documents listed in his list of documents on record as exhibits. Plaintiff’s Written Submissions 10. The Plaintiff’s counsel took directions on the filing of submissions on 12th February 2026. However, the said submissions were never filed by the Plaintiff’s counsel.

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ANALYSIS AND DETERMINATION 11. The police abstract on record dated 21st December 2023 shows that the accident herein occurred on 20th September 2023 along Bungoma – Malaba road at 2030hrs at Kanduyi area, and the same was reported to the police. There is no evidence to controvert the contents of the said police abstract. Therefore, it follows that the occurrence of the accident herein is not disputed. 12. The motor vehicle copies of records dated 10th September 2024 filed by the Plaintiff show that the trailer was owned by the Defendants at the time of the accident. 13. The law in this jurisdiction is that the entries in the register of motor vehicles on ownership of a motor vehicle raise a rebuttable presumption on ownership of such a motor vehicle (see section 8 of the Traffic Act). Therefore, in the absence of evidence to controvert the contents of the copies of records filed by the Plaintiff, the inevitable conclusion to be made is that the Defendants owned the trailer. 14. In the circumstances, this court finds and holds that the issues for determination in this case are liability and quantum. Liability 15. The Plaintiff testified that the accident occurred when he had parked his motor vehicle at Ola Petrol Station along Bungoma – Malaba road for an overnight stay only for the trailer to hit the said motor vehicle and extensively damage it. 16. A prudent driver exercising due care and skill cannot just hit another motor vehicle. Where a motor vehicle is parked lawfully and another moving motor vehicle hits it, the driver of the moving motor vehicle is usually deemed to have been negligent in causing such an accident.

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17. That being the case, this court takes the position that the trailer’s driver’s negligence led to the occurrence of the accident. 18. There is nothing on record to suggest that the trailer driver was driving the trailer 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 of the accident. The Defendants must therefore be held vicariously liable for the occurrence of the accident. 19. 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 20. The Plaintiff in this matter was duty bound to prove on a balance of probabilities the averments in his Plaint that arising from the accident herein, his motor vehicle was damaged, and that the said damage was to be repaired at a cost of Kshs. 275,000/=. 21. The Plaintiff placed before this court a motor vehicle assessment/valuation report dated 29th December 2023 from Maka Automotive Works and Assessors and photos showing the extent of damage to his motor vehicle and the cost of repairing the said motor vehicle at Kshs. 275,000/=. 22. There is no evidence on record to controvert the contents of the said motor vehicle assessment report. 23. 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 by 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

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which the assessor might have given could be 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. 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.” 24. Guided by the authority above, this court finds and holds that, arising from the accident herein, the Plaintiff’s motor vehicle was damaged as pleaded in the Plaint and the said motor vehicle was to be repaired at a cost of Kshs. 275,000/=. (b) V.A. T 25. The Plaintiff pleaded in his Plaint for an award of 16% V.A.T on the motor vehicle repair cost of Kshs. 275,000/= being Kshs. 44,000/=. 26. Generally, V.A.T is usually claimed as a disbursement. A disbursement must be proved before the same is awarded. However, where a party has not paid the V.A.T claimed, the same can only be awarded if there is proof that the service provider they have engaged for a service or services is registered for V.A.T. 27. There is no evidence on record that the Plaintiff has engaged any garage registered for V.A.T for the repair of his motor vehicle. 28. In any event, this court takes judicial notice that not all motor vehicle garages in Kenya are registered for V.A.T. Therefore, the mere fact that the Plaintiff’s motor vehicle will

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be repaired in a garage does not entitled him to a claim for V.A.T. An award for V.A.T can not be awarded based on speculations. 29. It is for the reasons above that this court dismisses the Plaintiff’s claim for V.A.T of Kshs. 44,000/=. (c) Loss of use 30. The Plaintiff pleaded in paragraph 9 of his Plaint that he was entitled to of Kshs. 10,000/= per day from the date of the accident until this matter is fully determined. He pleaded that he used to use his motor vehicle as a delivery motor vehicle. 31. He stated in his witness statement on record, that he used to use his motor vehicle to earn his daily bread. When he testified before this court, he stated that he used to earn Kshs. 10,000/= per day from his motor vehicle’s break down business. 32. It is given that the Plaintiff was deprived of the use of his motor vehicle after its damage. If at all the Plaintiff used the said motor vehicle for business or personal use as at the time of the accident, he 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.” 33. 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

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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. 34. 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. 35. The Plaintiff herein simply stated that he used to earn Kshs. 10,000/= daily from his motor vehicle’s breakdown business. 36. The Plaintiff needed to place before this court proof that his motor vehicle was being used for breakdown business at the time of the accident. This could have been easily proved through his breakdown business permit, income tax returns, or any other relevant document of evidential value. His break down business daily income could also have been proved by documents like income records, bank statements, or even Mpesa statements. He did not place such evidence before this court. 37. 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 the words of 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", 38. Guided by the authorities above, this court declines to make an award for damages for loss of user for want of proof. 39. Be that as it may, even if the Plaintiff had proved his claim for damages for loss of user to the required standards, this court would not have awarded the damages for loss of user from the date of the accident until payment in full. This stems from the fact that the Plaintiff, in such a situation, bears the burden of mitigating their loss as succinctly put in the authorities below.

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40. In the Ryce Motors case (supra), the court stated doth: The position law is that a man in the position of the respondent must take reasonable steps to mitigate his damages and for this purpose there is no distinction between a damaged and destroyed article. Peter Njuguna Joseph & Another vs. Ann Moraa Civil Appeal No. 23 of 1991 (unreported). In that case, the Court said: “We are here concerned with the actual loss of user of the vehicle which has been immobilized by the accident. The owner must take all reasonable steps to ensure that the vehicle is back on the road within a reasonable period. The owner must mitigate his damages by having the vehicle repaired if it was not a write-off. If the vehicle is to be a write-off, then the owner is entitled to pre-accident value of the damaged vehicle. He would then be paid a reasonable figure for loss of user until the time he received the pre-accident value of the write-off vehicle. 41. Further, in Halsbury’s Laws of England, fourth Edition Volume 12 at para 1193, the learned author states as follows: “The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and, if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided.” 42. Finally, in African Highland Produce Limited v John Kisorio [2001] eKLR , the Court stated:“The guiding principle of law in mitigation of losses is as follows. It is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues, and he cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintiff realizes that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best as he may, not only in his own interests but also in those of the defendant.” 43. Taking into consideration the duty imposed on the Plaintiff to mitigate his loss and the repairs timeframe (10 days) in the Assessor’s Report herein, as well as the cost of

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repairing the motor vehicle, this court is of the considered view that twenty (20) days would have been sufficient for the Plaintiff to repair his motor vehicle. 44. This court, in the absence of proof of the Plaintiff’s daily income from the breakdown business, would have adopted Kshs. 5,000/= as the Plaintiff’s daily income from the break down business. 45. In the circumstances, had the Plaintiff proved his claim for damages for loss of use, this court would have made an award of Kshs. 100,000/= under this head. (d) Special Damages 46. The Plaintiff pleaded for an award for Special Damages of Kshs. 47,100/= broken down as follows: a) Assessment fees – Kshs. 6,000/= b) Copy of records – Kshs. 1,100/= c) Recovery and towing fees – Kshs. 40,000/= 47. 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.” 48. This court will proceed to determine whether the Plaintiff strictly proved the Special Damages of Kshs. 47,100/=. 49. The Plaintiff placed before this court receipts for specials from NTSA, Maka Assessors, and Ribuild Technical which proved the pleaded Special Damages of Kshs. 47,100/=.

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50. Given the foregoing, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 47,100/=. DETERMINATION 51. 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. 275,000/= c) Special Damages – Kshs. 47,100/= 52. The 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. 53. The Plaintiff will have the costs of this suit. 54. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 19th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Parties: Absent C/A: Mr. Rioba

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