Kenpoly Manufacturers Limited v Wainaina

5. The Plainti claims Kshs. 2,674,443.00 as special damages, together with interest and costs of the suit. The Defendant denied liability. 6. The Plainti called three witnesses. The Defendant did not call any witness. 7. PW1, William Maina Gitau, testied that he was an insurance investigator and surveyor working with Hardfords.He investigated the accident of 27 February 2024 and prepared an accident Investigation Report dated 13 June 2024. 8. His evidence was that the investigation attributed responsibility for the accident to motor vehicle KCW 983B, which had left its lane and entered the path of the other vehicle. 9. In Cross-Examination, PW1 conrmed his qualications and experience in insurance and accident investigation. He stated that the report was prepared in conjunction with the insurer. He was questioned on the basis upon which liability was attributed to KCW 983B and conrmed that the police had also attributed blame in relation to the accident. 10. In Re-Examination, PW1 claried that he had principally attended court to produce the relevant police and investigation documents and maintained the ndings contained in his report. 11. PW2, Nicholas Kiplagat Chepkwony, testied that he was a driver employed by the Plainti and was driving motor vehicle KCX 061A on 27 February 2024. 12. He testied that the accident occurred at about 4.00 p.m. along the Nairobi–Naivasha Road near Soko Mjinga. It was raining and the road was slippery. According to PW2, KCW 983B entered his lane and collided with KCX 061A. 13. PW2 testied that the accident was reported to the police and produced the relevant police documentation, including the police abstract. 14. In Cross-Examination, PW2 was questioned concerning the circumstances of the accident and the contents of the police abstract. He conrmed that the abstract originated from the relevant police station. He stated that he had not seen the OB extract and could not give information which was not contained in the Police Abstract. 15. In Re-Examination, PW2 claried that he was driving KCX 061A while the other vehicle was KCW 983B. He maintained that he was properly within his lane when the collision occurred and that the accident happened suddenly, leaving him little or no opportunity to avoid it. 16. PW3, PC George Lemomo, testied as the police witness. His evidence concerned the police records and investigations relating to the accident involving KCX 061A and KCW 983B. 17. PW3 produced or referred to the relevant police documentation, including the Police Abstract. He was cross-examined on the preparation and contents of the police records and the basis for the attribution of blame. 18. In Re-Examination, PW3 maintained the position emerging from the police records. 19. The Defendant did not call any witness. His case therefore rested on the cross-examination of the Plainti’s witnesses and the submissions made on his behalf. Submissions 20. The Plainti submitted that it had established that KCW 983B left its lawful lane and entered the path of KCX 061A, thereby causing the collision. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/898/eng@2026-08-27 2

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21. It was submitted that the evidence of PW2, the police records and the evidence of PW3 established negligence on the part of the Defendant. The Plainti further relied on the investigation report produced through PW1. 22. The Plainti submitted that there was no evidence from the Defendant to controvert its evidence and urged the Court to nd the Defendant 100% liable. 23. On quantum, the Plainti claimed Kshs. 2,674,443 comprising material loss of Kshs. 2,609,173, assessment fees of Kshs. 9,860, tracing fees of Kshs. 38,010 and towing charges of Kshs. 17,400. The Plainti relied on the assessment report, discharge voucher, invoices and receipts. 24. The Plainti further relied on Harrison Baya Yaa v Marsh East Africa Ltd & Techard Steam & Power Ltd v Mutio Muli & Mutua Ngao [2019] eKLR for the proposition that the absence of an investigating ocer does not, by itself, render a Police Abstract incapable of supporting a claim where the other evidence establishes negligence. 25. The Defendant did not le his submissions despite the court having directed him to le by 12th August ,2026 . Analysis and Determination 26. Having considered the pleadings, evidence, documents and submissions, I consider the following issues to arise for determination: a. Whether the Defendant is liable for the accident; b. Whether the Plainti has established the insurer’s right of subrogation; c. Whether the Plainti has proved the Special Damages claimed; and d. What orders should issue as to interest and costs. Liability 27. The burden of proof rests upon the Plainti. The applicable standard is proof on a balance of probabilities. 28. There is no dispute that an accident occurred on 27 February 2024 involving motor vehicles KCX 061A and KCW 983B. The question is whether the Plainti has established that the accident was caused by the negligence of the Defendant. 29. PW2 was the driver of KCX 061A and gave direct evidence concerning the occurrence of the accident. His evidence was that he was properly driving within his lane when KCW 983B entered his path and collided with his vehicle. 30. PW2’s evidence is corroborated in material respects by the police evidence of PW3 and the investigation evidence of PW1. Both the police records and the investigation report attributed responsibility to KCW 983B. 31. I have considered the challenge made during cross-examination concerning the Police Abstract and the fact that PW2 had not seen the OB extract. However, the Plainti’s case does not rest solely upon the Police Abstract. There is direct evidence from PW2, police evidence from PW3 and the investigation evidence of PW1. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/898/eng@2026-08-27 3

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32. The Defendant did not call evidence to provide an alternative account of the accident or to controvert the evidence of the Plainti’s witnesses. While the burden of proof never shifts merely because the Defendant calls no evidence, the uncontroverted evidence remains part of the evidential material which the Court is entitled to consider. 33. Upon considering the totality of the evidence, I nd on a balance of probabilities that motor vehicle KCW 983B left its lane and entered the path of KCX 061A, thereby causing the collision. 34. I accordingly nd the Defendant 100% liable for the accident. Subrogation 35. I next consider the issue of subrogation. The evidence before the Court establishes that the Plainti’s Motor Vehicle was insured by Mayfair Insurance Company Limited and that the insurer indemnied the Plainti for the loss arising from the accident. 36. The doctrine of subrogation is founded on the principle that, upon indemnifying an insured, the insurer becomes entitled to exercise the rights and remedies available to the insured against the person responsible for the loss, to the extent of the indemnity paid. 37. In Indemnity Insurance Co.of North America v Kenya Airfreight Handling Ltd & Another [2004] 1 EA 52, the Court recognised the right of an insurer, upon indemnifying its insured, to pursue the rights of the insured against the party responsible for the loss. 38. The doctrine does not, however, confer upon the insurer a cause of action independent of that possessed by the insured. The insurer merely steps into the shoes of the insured and can recover only to the extent of the loss for which indemnity has been made. 39. In the present case, the Plainti produced evidence of the insurance relationship and the indemnication of the Plainti by Mayfair Insurance Company Limited. The discharge voucher and payment documentation support the fact of indemnication. 40. I am therefore satised that the requirements for invocation of the doctrine of subrogation have been established. The Plainti is entitled to pursue recovery against the Defendant in respect of the loss arising from the accident, subject to proof of the amount recoverable. Quantum 41. The Plainti claims Special Damages of Kshs. 2,674,443, particularised as follows: Material loss ............................................................Kshs.2,609,173.00 Assessment Fees ............................................................Kshs.9,860.00 Tracing fees ..................................................................Kshs.38,010.00 Towing fees ..................................................................Kshs.17,400.00 Total ......................................................................Kshs.2,674,443.000 42. It is trite that special damages must generally be specically pleaded and proved. However, claims arising from material damage to property require consideration of the nature of the damage and the evidence reasonably available to establish its extent and value. 43. In Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] KECA 20 (KLR), the Court of Appeal considered a claim for material damage to a motor vehicle and held that https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/898/eng@2026-08-27 4

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in a material damage claim the claimant need not necessarily demonstrate that the repair costs were actually incurred. What is required is evidence establishing the extent of the damage and what it would cost to restore the damaged property as nearly as possible to its pre-accident condition. The Court accepted an assessor’s report which identied the damaged parts and assigned values to them. 44. The principle in Nkuene Dairy Farmers is therefore applicable to the present case. The Plainti produced an assessment report which records the extent of the damage to KCX 061A and gives the estimated cost of repairs. The report provides evidence from which the Court can ascertain the extent and value of the damage. The Defendant did not produce a competing assessment or other evidence challenging the technical ndings in the report. 45. The Assessment Report placed the pre-accident value of the vehicle at approximately Kshs. 3,614,172.91 and the estimated repair cost at Kshs. 1,968,480.01. 46. The Plainti, however, pleaded material loss on the basis of a pre-accident value of Kshs. 3,669,173.00, less salvage of Kshs. 1,060,000. The evidence in the assessment report gives a dierent pre-accident value. The Court must determine the award on the basis of the amount established by the evidence. 47. I therefore accept the pre-accident value contained in the Assessment Report and calculate the material loss as follows: Kshs. 3,614,172.91 – Kshs. 1,060,000 = Kshs. 2,554,172.91.00 The Assessment Fee of Kshs.9,860.00, Tracing Fee of Kshs. 38,010.00 and towing charges of Kshs. 17,400.00 are supported by the documentary evidence on record. 48. I accordingly nd that the Plainti has proved Special Damages in the sum of Kshs. 2,619,442.91. Conclusion 49. Having considered the Pleadings, the testimony of PW1, PW2 and PW3, the documentary evidence and the submissions by counsel, I nd that the Plainti has proved its case on a balance of probabilities. 50. The evidence establishes that Motor Vehicle KCW 983B was responsible for the collision with KCX 061A and that the Defendant is consequently liable for the resulting loss. 51. I further nd that the Plainti established the applicability of the doctrine of subrogation by demonstrating that its insurer indemnied it for the loss. The Plainti is therefore entitled to recover the proved loss arising from the accident. 52. On quantum, and applying the principle stated in Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] KECA 20 (KLR), I nd that the assessment evidence suciently establishes the extent and value of the material damage. 53. The Plainti has accordingly proved its claim to the extent of Kshs. 2,619,442.91.00 Disposition 54. In the result, Judgment is hereby entered for the Plainti against the Defendant as follows: a. Liability is apportioned at 100% against the Defendant. b. The Plainti is awarded Kshs. 2,619,442.91 as special damages. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/898/eng@2026-08-27 5

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c. The said sum shall attract interest at court rates from the date of ling suit until payment in full. JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 27TH DAY OF AUGUST ,2026 __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE In the presence of : M/s Cherotich for the Defendant Plainti: Absent Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/898/eng@2026-08-27 6

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