Mwakio (Suing as the Legal Administrator Ad Litem of the Estate of the Late Hilton Mwakio - Deceased) v Mombasa Maize Millers Limited (Civil Case E073 of 2025) [2025] SCC 29 (KLR)

5. Following from the case and the submissions, the following issues commend themselves for determination Issue for Determination. a. Whether the Respondent is liable for the accident. b. What is the quantum of damages awardable if. c. Who bears costs of the claim. Analysis and Determination. a. Whether the respondent is liable for the accident. 6. It is the claimant’s testimony that on the material date of the accident he was called by Patrick Akwenda Onyunga his domestic worker and who informed him that a lorry had crushed into the premises and caused damages to it. The accident and the damage were reported to the police vide OB 16/8/2/2025. 7. It is further his testimony that following the accident, assessment of the damage was conducted by Rightend Appraisal Ltd and who vide a report dated 7/4/2025 assessed the damage at Kshs.830,000/ = which he now claims from this court. 8. The respondent in his testimony stated that on the material date while collecting customers orders and delivering goods, he moved to another customer when suddenly a motor cycle rider appeared and there was also another motor vehicle approaching from the difierent direction and in a bid to avoid collision, he swerved to the side and lost control and hit the wall of the shop that as a result it collapsed. 9. It is thus clear from the testimony of the respondent/driver that the fact that an accident occurred is now not in dispute. What seems to be the issue is who is to blame for the accident. 10. From the narration of the respondent and the evidence it is clear that the claimant had nothing to do with the accident. There is no evidence that he contributed to the occurrence of the accident in any way. The respondent in a desperate attempt to avoid liability has pleaded particulars of negligence on the part of the claimant but failed to lead any evidence to prove any of those particulars. For instance, it is claimed that the building was erected on the wrong side, location and without approval and also erecting a business at a road reserve. No report or letter from any government institution was produced in evidence to confirm this allegation. 11. It is thus the finding of the court that those particulars of negligence were not proved and any defence relying on those particulars is thus dismissed for want of proof. 12. The respondent seems to suggest in his submissions that the accident was caused by the motor cycle rider that the respondent/driver was trying to avoid hitting. If this was to be the case, the legal and prudent thing to do was to institute 3rd party proceedings as against the said rider. This was not done. 13. I agree with the claimant that a building is an immovable item and as such cannot be subjected to contributory negligence and as such it is the finding of the court that the claimant had no role in the occurrence of the accident and such the respondent is found and held 100% liable for the accident. b. What is the quantum of damages awardable if. 14. The claim of quantum is for Kshs.830,000/= the value was arrived at vide the assessment done and reduced into a report dated 7/4/2025 by RightEnd Appraisal Ltd. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/29/eng@2025-11-26 2

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15. The respondent denies the figure on account that the same is not itemized and that it is an old building and as such the amount required to restore it back to its original state would be minimal. On special damages having to be specifically pleaded and strictly proved he relied on the case of James Kariuki Chege vs Peter Obure Nyakora. 16. The claimant on the other hand while giving credence to the assessment report relied on the case of Waruingi v Nyambura & another (Civil Appeal 904 of 2022) [2025] KEHC 866 (KLR) (Civ) (31 January 2025) (Judgment) where the learned judge stated as follows in relying upon the assessment report:“ It is now settled that the assessor’s report is suficient proof and the failure to provide receipts for any repairs done is not fatal to the claim. (See the Court of Appeal’s decision in David Bagine v Martin Bundi (1996) eKLR). I am constrained to agree with the submissions of the appellant that he provided suficient evidence for the material claim and the decision in Nkuene Dairy Farmer Co-operative Society Ltd -vs- Ngacha Ndeiya(2010) eKLR where the court held;“special damages in a material damage claim need not be shown to have actually been incurred, that the claimant is only required to show the extent of damage and what would cost to restore the damaged item as near as possible to the condition it was before the accident.” 17. It is clear that the standard therefore in material damages is for the claimant to demonstrate the extent of damage and what it would costs to restore the damaged item as near as possible to the condition it was before the accident. 18. The claimant in my view and with the guidance of the cited authorities has met this test. The amount has been estimated by an expert and there being no contrary report for comparison purposes, I find that the claimant has proved on a balance of probabilities the estimate of the damage sufiered. 19. The claim on quantum is thus allowed as prayed. c. Who bears costs of the claim. 20. It is clear the claimant is successful in this claim and since costs follow event, he is awarded costs of the claim. Conclusion and Disposition. 21. 22. The upshot of the foregoing I make the following final orders; a. The claim contained in the statement of claim dated 5th September 2025 is allowed in the sum of Kshs.830,000/=. b. Costs and interest at court rates is awarded to the claimant. c. The interest to accrue from the date of filing the claim until payment in full Those shall be the orders of the court. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI SMALL CLAIMS COURT THIS 26TH DAY OF NOVEMBER 2025 F.M. MULAMA ADJUDICATOR/RM https://new.kenyalaw.org/akn/ke/judgment/scc/2025/29/eng@2025-11-26 3

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In the presence of: Court Assistant:- Fathiya Loo. Ms. Kamwana h/b for Mr. Karanja Harry for the Claimant. Ms. Machuka for the respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/29/eng@2025-11-26 4

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