Shikulu v Mwangi & 3 others

5. The 1st and 2nd Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served with the Summons to Enter Appearance as well as the Plaint. Consequently, an interlocutory judgment was entered against the 1st and 2nd Defendants. 6. The 3rd Defendant entered appearance and filed a Statement of Defence where they put the Plaintiff to strict proof of all the averments in their Plaint. They denied owning the matatu at the time of the accident, given that they had sold the said matatu to the third party on 20 th June 2019; hence, they could not be held liable for the accident herein. They also pleaded that if the accident herein occurred, then the same was caused by the car driver’s negligent acts and omissions enumerated in their Statement of Defence. 7. The 3rd Defendant also joined the third party to this suit seeking indemnity from the third party from liability that would attach against them in this case. However, the third party neither entered appearance nor filed their Statement of Defence despite having been duly served with the third party notice and the 3rd Defendant’s Statement of Defence. 8. In the circumstances, the 3rd Defendant pleaded that the Plaintiff’s suit against them ought to be dismissed with costs. 9. It is against this backdrop that this matter was set down for hearing for the Plaintiff and the 3rd Defendant to prove the averments in their respective pleadings on a balance of probabilities. 10. The summary of the evidence adduced by the Plaintiff and the third party is before this court by the parties herein is set out below. EVIDENCE Plaintiffs’ Case 11. PW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the accident’s police abstract dated 12th February 2025 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 47/02/02/2025. He blamed the matatu driver for the accident since the matatu hit the car off-road while swerving to avoid hitting another motor vehicle. He further stated that the Plaintiff’s car was damaged as a result of the accident. 12. He conceded in cross-examination that he could not tell the circumstances under which the accident occurred given that he was not the accident’s investigating officer.

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13. PW2 Evans Obare Shikulu adopted his witness statement dated 07th May 2025 as his evidence in chief. He testified that on the date of the accident, he had parked the car off the road along Bungoma – Mumias road on the left side while facing the Bungoma general direction when the matatu, which was headed to Mumias direction from Bungoma general direction, encroached onto his lane and hit his car while avoiding a head-on collision with an oncoming motor vehicle. 14. He added that the impact caused him to sustain severe injuries and caused extensive damage to the car, which was written off. 15. PW2 George Mathu, a motor vehicle assessor from Maka Automotive Works and Assessors, produced the car’s assessment report dated 25 th March 2025 showing that the car was written off after the accident. He assessed the car’s pre-accident value at Kshs. 385,000/=, and salvage value at Kshs. 65,000/=. 16. He also produced a receipt for Kshs. 6,000/= which he charged the Plaintiff for assessing the car. 3rd Defendant’s Case 17. DW1 Patrick Mungai Mburu testified that he is the 3rd Defendant’s director. He produced an Authority to Act dated 15th August 2025 in support of his position that he was authorized by the 3rd Defendant to plead and testify on their behalf in this matter. 18. He also produced a motor vehicle sale agreement dated 20 th June 2019 showing that the 3rd Defendant had already sold the matatu to the third party at the time the accident herein occurred. 19. He added that clause 5 (a) and (b) of the motor vehicle sale agreement exempted him from liability in this matter. He reiterated that the third party and his insurer were the ones liable for the accident. 20. In cross-examination, he stated that he was the 3 rd Defendant’s sole director. He conceded that the third party was still the matatu’s registered owner at the time of the accident, and that he had not filed the 3rd Defendant’s resolution permitting him to testify on their behalf. 21. He clarified in re-examination that he remained the matatu’s registered owner after execution of the motor vehicle sale agreement since the third party had not fully paid the matatu’s purchase price. ANALYSIS AND DETERMINATION

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22. This court has given due regard to the pleadings, the evidence on record, as well as the Plaintiff’s written submissions. It is worth noting that the 3rd Defendant did not file their written submissions. 23. Given that this court has already made findings in Bungoma CMC CC No. E219 of 2025, which is part of a series of cases arising from this accident; that DW1 had authority to plead and testify on behalf of the 3rd Defendant in the cases arising from this accident; that the 3 rd Defendant is not a proper party to the cases arising from this accident; that the 3rd Defendant’s claim for indemnity against the third party arising from the accident is dismissed, and that the 1st and 2nd Defendants are jointly and severally liable for the accident herein, the only issue for determination is quantum. Quantum (a) Cost of repair 24. The Plaintiff pleaded that the car was written off after the accident. He claimed Kshs. 320,000/= being the difference between the car’s pre-accident value and its salvage value after the accident. 25. PW2 produced the car’s assessment report dated 25th March 2025 from Maka Automotive Works and Assessors in support of the Plaintiff’s case. 26. The Defendants did not adduce any evidence to controvert the contents of the said motor vehicle assessment report. 27. The law in this jurisdiction is 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 Court of Appeal’s holding 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 could be counter checked and either accepted or disproved. The appellants having not questioned those prices must be

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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.” 28. Guided by the authority above, this court finds and holds that the Plaintiff proved on a balance of probabilities that, arising from the accident, his motor vehicle was written off with a pre-accident value of Kshs. 385,000/= and a salvage value was assessed at Kshs. 65,000/=. 29. In cases such as this where a motor vehicle is written off, the Court of Appeal in Jimnah Munene Macharia vs. John Kamau Erera Civil Appeal No. 218 of 1998 was of the view that: “Where there is no proof of actual repair the plaintiff is only entitled to the pre-accident value less the salvage value.” 30. The position above was also followed in Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited [2021] eKLR. 31. In the circumstances, this Court awards the Plaintiff Kshs. 320,000/= under this head. (b) Special Damages 32. The Plaintiff pleaded for special damages comprising assessment report charges of Kshs. 6,000/= and towing charges of Kshs. 50,000/=.

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33. 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.” 34. The receipt produced by PW2 proved the assessment report charges of Kshs. 6,000/=. Consequently, the Plaintiff is awarded special damages of Kshs. 6,000/=. DETERMINATION 35. The upshot of the foregoing is that judgment is entered against the 1st and 2nd Defendants jointly and severally in the following terms: a) Liability………………………………………100% b) Motor vehicle repair…………………...……Kshs. 320,000/= c) Special Damages……………………...…….Kshs. 6,000/= Total Award……………………..Kshs. 326,000/= 36. The awards above being Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 37. The suit against the 3rd Defendant is dismissed with costs. The 3rd Defendant’s claim for indemnity against the third party is dismissed. 38. The Plaintiff will have the costs of this suit. 39. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 01st day of September 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Oriko for the Plaintiff C/A: Mr. Rioba

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