Jessee Rubira Kinyua v Josiphine Nempikas Siloma Shieni & Douglas Kolele Meigara

filed written submissions. The Court has considered the pleadings, evidence, exhibits and submissions on record. B. PLEADINGS i. Plaint 3. The Plaintiff, Jessee Rubira Kinyua, instituted the suit by a Plaint dated 27 th January 2025, seeking compensation for damage allegedly occasioned to motor vehicle registration number KCW 718V in a road traffic accident involving motor vehicle registration number KDG 772T, said to be owned by the Defendants. 4. The Plaintiff pleaded that on 3rd July 2024, while his vehicle, which was insured with Invesco Assurance Company Limited, was being lawfully driven along the Narok–Bomet Road at Tegero, the Defendants’ vehicle was negligently driven and rammed into his vehicle from behind. He attributed the accident to various particulars of negligence, including failure to keep proper control and distance, excessive speed, careless and reckless driving, failure to brake or take evasive action, driving a defective vehicle and driving while intoxicated. 5. The Plaintiff pleaded that his vehicle was extensively damaged, resulting in financial loss and loss of user. He claimed Kshs. 770,626 as special damages, comprising repair costs of Kshs. 741,076, assessor’s fees of Kshs. 6,000, towing charges of Kshs. 23,000 and Kshs. 550 for a copy of records, together with costs, interest and other appropriate relief. He further invoked the doctrine of res ipsa loquitur and relied on the Traffic Act and Highway Code. ii. Statement of defence NAROK MCCC NO. E013 OF 2025 Page 2 of 16

page 2 of 16

6. By a Statement of Defence dated 4 th April 2025, the Defendants admitted the description of the parties but put the Plaintiff to strict proof of the ownership of motor vehicle KDG 772T. 7. They denied the Plaintiff’s ownership and insurance particulars relating to motor vehicle KCW 718V, denied the occurrence of the accident and, in the alternative, denied that it was caused by their negligence. The Defendants pleaded that, if the accident occurred, it was caused by the Plaintiff’s negligence, particularised as failure to exercise effective control of his vehicle, failure to keep a proper lookout for other road users, and driving without due care and attention. 8. They denied liability for the alleged damage and loss of user, disputed the claim for special damages, and contended that the doctrine of res ipsa loquitur, the Traffic Act and the Highway Code did not avail the Plaintiff. They also denied having received the alleged demand and notice of intention to sue. 9. The Defendants admitted the averment concerning the absence of previous proceedings and the jurisdiction of the Court, and prayed that the suit be dismissed with costs. iii. Reply to Defence 10.In his Reply to Defence dated 24th April 2025, the Plaintiff joined issue with the Defence and reiterated the contents of the Plaint. He specifically denied the particulars of negligence attributed to him by the Defendants and put them to strict proof thereof. He consequently prayed that the Defence be struck out and that judgment be entered in his favour as prayed in the Plaint. C. EVIDENCE i. Plaintiff’s Evidence NAROK MCCC NO. E013 OF 2025 Page 3 of 16

page 3 of 16

11.The Plaintiff, Jesse Rubira Kinyua (PW1), testified that on 3 rd July 2024 at about 12:30 p.m., he was travelling from Nairobi towards Narok in motor vehicle registration number KCW 718V, Toyota Wish, which was being driven by his driver, Peter Ndegwa Ngari. He stated that upon reaching the Tegero area, the motor vehicle registration number KDG 772T, which was being driven at a high speed and without due care and attention, lost control and rammed into KCW 718V from behind, thereby pushing it forward into another motor vehicle registration number KDB 350D. He testified that the accident caused extensive damage to KCW 718V. He blamed the driver and owner of KDG 772T for the accident. 12.PW1 adopted his witness statement dated 15th July 2024 as his evidence and produced the Police Abstract, which was admitted in evidence as Plaintiff’s Exhibit 2. He stated that he was claiming Kshs. 418,020 as the cost of repairing the vehicle and associated expenses. During cross-examination, he clarified that the actual repair cost was Kshs. 388,470, although the motor vehicle assessment report had estimated the repair cost at Kshs. 352,640. He acknowledged that some of the receipts produced did not specify the particular spare parts purchased and that he had not produced a post-repair inspection report or a report showing the pre-accident condition of the vehicle. He also confirmed that the front lamp of the vehicle had been damaged. 13.On re-examination, PW1 maintained that he incurred Kshs. 388,470 in repairing the vehicle and explained that the assessment by Regent Automobile Valuers had been undertaken before the actual repairs, with the cost of some parts increasing thereafter. He reiterated that the front lamp was damaged in the course of the accident. ii. Defence Evidence NAROK MCCC NO. E013 OF 2025 Page 4 of 16

page 4 of 16

14.The Defendants called Paul Lekishon Meigara (DW1), the driver of motor vehicle registration number KDG 772T. He adopted his witness statement as his evidence. In his statement, he stated that on 3 rd July 2024 he was driving KDG, a school bus, from Nairobi towards Narok as part of a convoy travelling to a funeral. He stated that KCW 718V was behind KDG and a Nissan vehicle. According to his account, KCW suddenly overtook both the Nissan and KDG at high speed and thereafter attempted to overtake a vehicle ahead without sufficient clear distance. Upon encountering oncoming traffic, KCW allegedly attempted to return to its lane and collided with the rear right side of the vehicle it was overtaking. 15.DW1 further stated that he attempted to avoid colliding with KCW by applying the emergency brakes, engaging the handbrake and putting the vehicle in parking gear. He maintained that he could not swerve because there was oncoming traffic on the opposite lane and a ditch on the other side of the road. Despite these efforts, KDG collided with the rear of KCW. He stated that the accident involved four motor vehicles and that, after the collision, he spoke to the driver of KCW, who allegedly attributed the accident to the driver of the vehicle ahead of him suddenly applying emergency brakes. DW1 subsequently reported the accident at the police station and recorded a statement. He maintained that the driver of KCW caused the accident by driving at excessive speed and attempting to overtake without due regard to the traffic conditions. 16.During cross-examination, DW1 confirmed that he was driving KDG on the material date, had about five years’ driving experience, and had not produced his driving licence in court. He stated that he was travelling from Nairobi towards Narok at about noon and was driving at approximately 80 km/h. He also confirmed that KDG rammed into KCW. On re-examination, he NAROK MCCC NO. E013 OF 2025 Page 5 of 16

page 5 of 16

maintained that there was no safe avenue through which he could have avoided the collision because there were other vehicles on the opposite side of the road. D. PARTIES ' SUBMISSIONS. i. The Plaintiff’s Submissions. 17.The Plaintiff’s written submissions dated 24th July 2026 submit that the Plaintiff proved his case on a balance of probabilities in respect of both liability and special damages arising from the road traffic accident of 3 rd July 2024 along the Narok–Bomet Road at Tegero. It was submitted that the Plaintiff, as PW1, testified that his motor vehicle registration number KCW 718V, which was being driven by his authorised driver, Peter Ndegwa Ngari, was travelling at a moderate speed when motor vehicle registration number KDG 772T rammed into its rear. The Plaintiff maintained that the accident was caused by the negligent driving of the 1st Defendant’s authorised driver, who failed to keep a safe distance and lost control of the vehicle. The Plaintiff relied on the Police Abstract dated 3rd July 2024, produced as Exhibit 2, which, according to the submissions, attributed blame to the driver of KDG 772T and confirmed the involvement of KCW 718V in the accident. 18.On the duty of care owed by a driver to other road users, the Plaintiff relied on Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR, where Aburili J. observed that a person driving a motor vehicle owes a duty of care to other road users and that, given the potentially dangerous nature of a motor vehicle, due care is required of the person in control of it. The Plaintiff further relied on Boniface Waiti & Another v Michael Kariuki Kamau [2007] eKLR, where Nambuye J. stated that every driver has a duty to drive prudently, maintain a proper lookout for other road users, remain vigilant and maintain sufficient control of the vehicle so as to bring it to a safe stop in an emergency. The NAROK MCCC NO. E013 OF 2025 Page 6 of 16

page 6 of 16

Plaintiff submitted that the evidence established that the driver of KDG 772T failed to maintain a safe distance and consequently collided with KCW 718V. 19.With regard to the Defence case, the Plaintiff submitted that the 2 nd Defendant’s own testimony substantially supported the Plaintiff’s version on the material issue of failure to keep a safe distance. According to the submissions, the Defendant testified that KCW 718V had overtaken another vehicle and moved back into its lane, leaving insufficient distance, which resulted in KDG 772T colliding with it. However, under cross-examination, he confirmed that he was driving KDG 772T, that the accident occurred during the day in clear weather and good visibility, and that he had not maintained a safe distance. The Plaintiff therefore argued that the Defendant’s evidence did not satisfactorily explain why the collision could not have been avoided and instead demonstrated a failure to maintain proper control and distance. 20.The Plaintiff further submitted that the nature and location of the damage to KCW 718V supported his account that it had been struck from behind. He contended that the damage to the left rear bumper light was inconsistent with the allegation that KCW 718V was overtaking immediately before the collision, arguing that an overtaking manoeuvre would, in his view, more likely have resulted in damage to the right rear portion. On the totality of the evidence, the Plaintiff urged the Court to find the Defendants 100% liable for the accident. 21.On quantum, the Plaintiff submitted that his motor vehicle sustained extensive damage and relied on the Assessment Report prepared by Regent Automobile Valuers & Assessors Limited, produced as Exhibit 3. It was submitted that the assessment initially estimated the repair costs at Kshs. 352,640, while the Plaintiff ultimately incurred Kshs. 388,470 in repairs, with the difference being attributed to some spare parts costing more than the estimates contained in the NAROK MCCC NO. E013 OF 2025 Page 7 of 16

page 7 of 16

assessment report. The Plaintiff stated that receipts supporting the repair expenses and other special damages had been produced in evidence. 22.In support of the claim for material damage, the Plaintiff relied on Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] eKLR, where the Court of Appeal held, in the context of material damage, that a claimant is required to demonstrate the extent of the damage and the cost of restoring the damaged property as nearly as possible to its pre-accident condition, with the particulars of damage and repair costs being established with reasonable certainty. Relying on that authority and the evidence adduced, the Plaintiff submitted that the repair expenses had been sufficiently established. 23.The Plaintiff additionally claimed Kshs. 6,000 as assessment fees, Kshs. 23,000 as towing charges and Kshs. 550 for a motor vehicle search, making a total claim for special damages of Kshs. 418,020. He therefore urged the Court to enter judgment in his favour for the said amount, together with costs of the suit and interest. ii. Defendants' Submissions. 24.The Defendants’ written submissions dated 3rd August 2026 submit that the Plaintiff failed to prove that the accident was caused by the negligence of the driver of motor vehicle registration number KDG 772T. The Defendants maintained that the accident of 3rd July 2024 was caused by the driver of the Plaintiff’s motor vehicle, KCW 718V, who, while travelling along the Narok– Bomet Road, suddenly attempted to overtake without regard to oncoming traffic and was consequently unable to complete the manoeuvre safely. NAROK MCCC NO. E013 OF 2025 Page 8 of 16

page 8 of 16

25.On liability, the Defendants relied on the testimony of Paul Lekishon Meigara, the driver of KDG, who stated that he was driving the school bus from Nairobi to Narok as part of a convoy when KCW suddenly overtook KDG. According to his evidence, KCW thereafter attempted to overtake another vehicle but, upon encountering oncoming traffic, attempted to return to its lane at high speed and collided with the vehicle it was overtaking. The impact allegedly caused damage to the front left-hand side of KCW. The Defendants submitted that the damage depicted in the photographs contained in the Plaintiff’s assessment report was consistent with their version of events. They further contended that the driver of KDG had attempted to avoid the collision by applying the emergency brakes, engaging the handbrake and parking gear, but the collision was nevertheless unavoidable. 26.The Defendants challenged the Plaintiff’s reliance on the Police Abstract, which attributed blame to the driver of KDG. They submitted that no police investigation report or other evidence had been produced to demonstrate the basis upon which the police arrived at that conclusion. Reliance was placed on Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] eKLR, where the Court held that negligence is proved by evidence and that a police abstract, although admissible, cannot by itself substitute for evidence establishing how the accident occurred or why liability was attributed to a particular party. The Defendants therefore submitted that the Police Abstract, standing alone, was insufficient to prove negligence against them and that the Plaintiff had failed to discharge the burden of proof on a balance of probabilities. 27.The Defendants further submitted that, on the evidence presented, it was the Plaintiff’s driver who was negligent in attempting to overtake without sufficient NAROK MCCC NO. E013 OF 2025 Page 9 of 16

page 9 of 16

caution and subsequently moving into the path of KDG. They consequently urged the Court to find that the Defendants were not liable for the accident. 28.On quantum, the Defendants submitted that, having failed to establish liability, the Plaintiff was not entitled to damages. In the alternative, they challenged the claimed Kshs. 418,020 in special damages as unsubstantiated. They argued that the receipts from Tarikabby Auto Spares did not identify the spare parts purchased and therefore did not demonstrate that the items were used to repair KCW. They further submitted that the receipts from Zienja Agencies Auto Paints contained items that were not consistent with the repairs identified in the assessment report, including wiring, a spare wheel and engine gas. The Defendants also pointed out that the assessment report estimated repair costs at Kshs. 352,640, whereas the Plaintiff claimed to have incurred Kshs. 388,470, without producing a post-repair report or sufficient evidence explaining the increase. 29.The Defendants therefore submitted that the Plaintiff had failed both to establish negligence against them and to sufficiently substantiate the special damages claimed. They consequently urged the Court to dismiss the suit with costs. E. ISSUES FOR DETERMINATION 30.From the pleadings, evidence and submissions, the following issues arise for determination: i. Whether the Plaintiff proved that the Defendants, or their authorised driver, were negligent and thereby caused the accident involving motor vehicles KCW 718V and KDG 772T. NAROK MCCC NO. E013 OF 2025 Page 10 of 16

page 10 of 16

ii. Whether the Plaintiff contributed to the occurrence of the accident. iii. Whether the Plaintiff proved the special damages claimed and, if so, the amount payable. iv. Who should bear the costs of the suit. F. ANALYSIS AND DETERMINATION i. Liability 31.The starting point is the burden of proof. Sections 107(1), 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya, place the burden upon the person who asserts the existence of a fact to prove it. In Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden of proof remains upon the Plaintiff throughout the case and that the standard in civil proceedings is proof on a balance of probabilities. The same position was reiterated in Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] KEHC 2664 (KLR), where the Court held that a claimant alleging negligence must prove the duty of care, breach of that duty and resulting loss or damage. 32.It is also settled that the mere occurrence of an accident does not, of itself, establish negligence. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, the Court of Appeal stated that there is no liability without fault in the Kenyan legal system and that a Plaintiff in a negligence claim must prove some negligence against the Defendant. The same principle has been reiterated in subsequent decisions, including Eastern Produce (K) Limited v Christopher Atiado Osiro, Civil Appeal No. 43 of 2001 [2006] eKLR. NAROK MCCC NO. E013 OF 2025 Page 11 of 16

page 11 of 16

33.The Plaintiff's case is that KCW 718V was being driven from Nairobi towards Narok when, at Tegero, KDG 772T, which was allegedly being driven at high speed and without due care, rammed into its rear and pushed it into KDB 350D. PW1 attributed the accident to the driver of KDG 772T. The Plaintiff's evidence is supported, to the extent of establishing the occurrence of the accident and the involvement of the vehicles, by the Police Abstract produced in evidence. 34.The Defence version is materially different. DW1, who was the driver of KDG 772T, testified that KCW 718V first overtook the Nissan vehicle and KDG and thereafter attempted to overtake another vehicle ahead without sufficient clear distance. According to him, KCW encountered oncoming traffic, attempted to return to its lane and collided with the rear right side of the vehicle it was overtaking. DW1 stated that he immediately applied the emergency brakes, engaged the handbrake and put the vehicle in parking gear but could not swerve because of oncoming traffic and a ditch. He nevertheless confirmed that KDG subsequently collided with the rear of KCW. 35.The evidence therefore establishes, without serious dispute, that KDG 772T collided with the rear of KCW 718V. The central question is whether that collision resulted from negligence on the part of the driver of KDG. 36.In Boniface Waiti & Another v Michael Kariuki Kamau [2007] KEHC 2609 (KLR), the High Court stated that a driver is expected to drive prudently, keep a proper lookout, remain vigilant and maintain sufficient control of the vehicle so as to enable it to be brought to a safe stop in an emergency. The Court further observed that where a driver seeks to rely upon a sudden emergency caused by another road user, the explanation must be consistent with the absence of negligence and must demonstrate that the emergency was so sudden that a competent driver could not reasonably have taken corrective action. NAROK MCCC NO. E013 OF 2025 Page 12 of 16

page 12 of 16

37.In the present case, DW1's evidence is that he was travelling at approximately 80 km/h and that, despite applying emergency brakes, handbrake and parking gear, KDG collided with KCW. He maintained that there was no safe avenue for him to swerve because of oncoming traffic. 38.The Court must, however, consider that evidence alongside the fact that the collision was a rear-end collision. The Plaintiff's allegation that KDG was driven at excessive speed was not independently established. Equally, the Plaintiff's driver, Peter Ndegwa Ngari, who was said to have been driving KCW 718V, was not called to testify. Consequently, the Court has no direct account from the person who was actually driving the Plaintiff's vehicle concerning the circumstances immediately preceding the collision. 39.Further, although the Plaintiff relied upon the Police Abstract as attributing blame to the driver of KDG, the abstract does not, on its own, establish the factual basis upon which the police arrived at that conclusion. In Stephen Kanjabi Wariari v Dennis Mutwiri Muriuki & Another [2022] KEHC 2664 (KLR), the Court held that a Police Abstract is admissible evidence but cannot, standing alone, substitute for evidence establishing how an accident occurred or the basis for attributing negligence to a particular party. 40.The Plaintiff also invoked the doctrine of res ipsa loquitur. The doctrine, however, does not relieve a Plaintiff of the ultimate burden of proving negligence where the evidence before the Court provides competing explanations for the occurrence of the accident. In the present case, the Defence offered a specific account of how the collision occurred, namely that the Plaintiff's vehicle was involved in an overtaking manoeuvre and returned to its lane in circumstances that left insufficient distance for KDG to avoid it. That account was not directly rebutted by the evidence of the driver of KCW. NAROK MCCC NO. E013 OF 2025 Page 13 of 16

page 13 of 16

41.On the totality of the evidence, the Court is unable to find, on a balance of probabilities, that the Plaintiff established that the driver of KDG 772T was driving negligently in the manner pleaded. The evidence establishes the collision, but not sufficiently the alleged breach of duty of care. The fact that KDG struck KCW from behind, without more, is not conclusive proof of negligence, particularly in circumstances where the only eyewitness account before the Court from the driver of KDG provides an explanation which was not effectively rebutted. 42.The Plaintiff therefore failed to discharge the burden imposed upon him under sections 107, 108 and 109 of the Evidence Act. It follows that the claim in negligence cannot succeed. ii. Special damages 43.Even if liability had been established, the Plaintiff was required to strictly prove the special damages claimed. 44.The Plaintiff initially pleaded special damages of Kshs. 770,626, comprising repair costs of Kshs. 741,076, assessment fees of Kshs. 6,000, towing charges of Kshs. 23,000, and Kshs. 550 for a copy of records. In his evidence and submissions, however, the Plaintiff pursued Kshs. 418,020, comprising Kshs. 388,470 for repairs, Kshs. 6,000 for assessment, Kshs. 23,000 for towing and Kshs. 550 for the search. 45.The law on special damages is settled. In Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, the Court of Appeal held that special damages must not only be specifically pleaded but must also be strictly proved. The Court explained that such damages are not presumed from the nature of the wrongful act and that the degree of certainty and particularity required depends upon the NAROK MCCC NO. E013 OF 2025 Page 14 of 16

page 14 of 16

circumstances of each case. The principle has been repeatedly affirmed by the Court of Appeal, including in Vishva Stones Supplies Company Limited v RSR Stone (2006) Limited (Civil Appeal (Application) E308 of 2020) [2024] KECA 978 (KLR). 46.In the present case, the assessment report estimated the repair costs at Kshs. 352,640, whereas PW1 testified that the actual repairs cost Kshs. 388,470. PW1 explained that the assessment had been undertaken before the repairs and that the price of some spare parts subsequently increased. However, he conceded that some of the receipts did not specify the particular spare parts purchased and that no post-repair inspection report had been produced. 47.The Defendants further challenged the repair receipts on the basis that some did not identify the parts purchased and that some items appearing in the paint-shop receipts were not consistent with the assessment report. They also pointed out that no post-repair report had been produced to explain the increase from Kshs. 352,640 to Kshs. 388,470. 48.The Plaintiff's reliance on Nkuene Dairy Farmers Co-operative Society Ltd & Another v Ngacha Ndeiya [2010] eKLR is well founded as to the general principle that a claimant for material damage should demonstrate the extent of the damage and the reasonable cost of restoring the property to its pre-accident condition. However, the evidential deficiencies in the present case mean that the Court cannot safely accept the higher figure of Kshs. 388,470 as having been strictly proved. 49.In any event, having found that liability has not been established against the Defendants, the question of an award of special damages does not arise. The claim for loss of user was similarly not quantified or sufficiently proved and would, in any event, require strict proof. NAROK MCCC NO. E013 OF 2025 Page 15 of 16

page 15 of 16

50.Accordingly, the Plaintiff has failed to establish his claim against the Defendants on a balance of probabilities. G. DISPOSITION 51.The Plaintiff's suit against the Defendants is hereby dismissed. 52.The Plaintiff shall bear the costs of the suit. 53.It is so ordered. Dated, Signed, and Delivered at Narok This 22nd Day of September, 2026. HON. H.M. NYABERI CHIEF MAGISTRATE In the Presence of: Court Assistant: Mr. Danson Solian Plaintiff’s Advocate: Ms. Matengo Defendant’s Advocate: Ms. Chege NAROK MCCC NO. E013 OF 2025 Page 16 of 16

page 16 of 16