Ndungu v Gikonyo & another (Claim E5373 of 2024) [2025] SCC 40 (KLR)

from the accident, her motor vehicle was damaged, prompting her insurer to make good that damage at a cost of Kshs. 325,810/= hence this claim. It would appear that the Respondents did not file a Response to the Claimant’s Amended Statement of Claim herein. However, the record shows that the Respondents filed a Response to the Statement of Claim dated 07 th January 2025, blaming the Claimant and/or her authorized driver for causing the accident herein through the alleged negligence acts set out in paragraph 7 of their Response to the Claim herein. On 26th June 2025, parties herein consented to this matter being determined under section 30 of the Act. ANALYSIS & DETERMINATION This court has duly considered all the pleadings, evidence, submissions, as well as authorities placed before it. It is common ground that this claim is based on the principle of subrogation.Muhochi Workshop & J in Eastern Transporters Produce Ltd (Civil Kenya Appeal Ltd v Rongai 125 of 2018) [2023] KEHC 24810 (KLR) (7 November 2023) (Judgment) rendered himself thus on what the principle of subrogation means:“The principle of the doctrine of insurance was well defined in Kenya Power & Lighting Company Limited v Julius Wambale & Another (2019) eKLR where Githua J held; ‘‘The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party. The action must

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however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.’’ It is uncontested that the accident herein occurred and that the Claimant’s motor vehicle registration number KDB 667 E was damaged as a result of the said accident. Further, parties herein are in agreement that after the occurrence of the accident herein, the Claimant’s insurer expended money in repairing the Claimant’s motor vehicle registration number KDB 667 E. The only point of departure between the parties herein is who is to blame for the accident and the amount of money spent by the Claimant’s insurer in repairing the Claimant’s motor vehicle. In view of the foregoing, the issues for determination are liability and quantum. Liability The evidence on record shows that the Claimant’s motor vehicle registration number KDB 667 E was damaged when it was hit from behind by motor vehicle registration number KDD 164 U. The Claimant maintained the position that the 1st Respondent and/or her agent was solely responsible for the occurrence of the accident. The 2nd Respondent, on the other hand, stated that the Claimant was to blame for the occurrence of the accident since she suddenly and without warning changed lanes into motor vehicle registration number KDD 164 U’s lane. The 2nd Respondent added that he tried preventing the occurrence of the accident by braking and swerving to the left-hand side but due to the proximity of the two vehicles, the accident herein occurred. The Claimant also relied on the Police Abstract dated 27 th March 2022 to corroborate her version of events on how the accident herein occurred. A reading of paragraph 7 of the Police Abstract herein shows that the outcome

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of investigations regarding this accident was that the accident was caused by motor vehicle registration number KDD 164 U. The weight to be attached to an entry in police abstract regarding an accident was aptly captured by Odunga J in Florence Mutheu Musembi & Geofrey Mutunga Kimiti v Francis Karenge {2021} eKLR when he stated thus:“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents.” This court subscribes to the school of thought by Odunga J that where a police abstract has an entry on the outcome of investigations, a court cannot ignore such an entry. Whereas such an entry may not be the sole ground for finding a party negligent, such an entry is persuasive in nature. The evidential value and the persuasive nature of such an entry in a police abstract which is a public document is further strengthened by section 38 of the Evidence Act which provides that an entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.

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Section 38 of the Evidence Act codifies the presumption of regularity that was restated in Chief Land Registrar & 4 others - v - Nathan Tirop Koech & 4 others [2018] eKLR where it was stated that there is a presumption that all acts done by a public official have lawfully been done and that all procedures have been duly followed. The presumption of regularity is a presumption that executive officials have properly discharged their official duties. The presumption is aptly captured in the ancient latin maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly…” The foregoing shows that an entry made by a police officer in a police abstract is deemed to be the truth or true unless such an entry is rebutted by credible evidence. A court can not ignore such an entry. The only evidence led by the Respondents to rebut the entry in the police abstract is their own oral testimony and/or witness statement. This court is of the considered view that a witness statement alone can not rebut an entry in a Police Abstract on the outcome of investigations into a traffic accident. A perusal of the photos placed before this court by the Claimant discounts the 2nd Respondent’s position that the accident occurred when he swerved to the left to prevent the occurrence of the accident, since the damage to the Claimant’s motor vehicle was not on the rear left-hand side. The damage on the Claimant’s motor vehicle was evenly spread on the rear side of the said motor vehicle, hence this court’s finding that the 1 st Respondent’s version of events on how the accident herein occurred is not supported by evidence on record. In any event, given the fact that the Claimant’s motor vehicle was hit from behind by the 1st Respondent’s motor vehicle, a prima facie case of negligence was established against the Respondents. To this end, this court draws inspiration from the position taken by Musyoki J in Atanga v Rojeh

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(Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment) where the learned judge expressed himself as follows:A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’ Other than their witness statements, the Respondents did not place before this court any other credible evidence to dislodge a prima facie case of negligence established against him by the evidence on record. In the circumstances, this court finds and holds that the Respondents were jointly and severally 100% liable for the occurrence of the accident herein. Quantum The Respondents took issue with the Claimant’s claim of Kshs. 33,600/= for cash in lieu of repairs and disbursements of Kshs. 15,000/=. The Respondents submitted that in view of the Re-inspection report dated 16th October 2022 showing that the Claimant’s motor vehicle had been repaired satisfactorily, there was no basis for the claim of Kshs. 33,600/=

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A reading of the Satisfaction Note dated 26 th July 2022 from Maxwell Autotechs Limited shows a handwritten entry recommending cash in lieu since the Claimant’s motor vehicle’s bumper had not been replaced. That being the case, the only logical conclusion to be drawn is that the Reinspection report dated 16th October 2022 was prepared after the Claimant had repaired her motor vehicle’s bumper at her own expense, which expense was reimbursed by her insurer later on. Therefore, this court is of the considered view that the claim for cash in lieu of Kshs. 33,600/= was supported by the evidence on record, and the same must be awarded. This court agrees with the Respondents’ submission that the claim for Kshs. 15,000/= disbursements can only be recovered as costs of a suit since the same is not an amount paid to the Claimant by the Claimant’s insured. Regarding the claim for Kshs. 550/= for motor vehicle records search, this court notes that the expenditure was incurred by the Claimant’s counsel, thus the same can not be claimed by the Claimant’s insurer under the doctrine of subrogation. For the reasons above, this court finds and holds that the Claimant proved that her insurer is entitled to reimbursement of the following costs from the Respondents:a) Cash in lieu – Kshs. 33,600/= b) Repairs – Kshs. 269,120/= c) Assessment costs – Kshs. 7,540/= Total – Kshs. 310,260/= DISPOSITION The upshot of the foregoing is as follows:a) Liability 100% in favour of the Claimant

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b) Judgment is entered against the Respondents jointly and severally for Kshs. 310,260/= c) The sum of Kshs. 310,260/= awarded in (a) above will earn interest at court rates from the date of this judgment till payment in full d) The Claimant will have the costs of this claim assessed at Kshs. 30,000/= Certificate of costs and decree to issue forthwith Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 28 th day of August 2025 T.O. OMONO ADJUDICATOR In the presence of: C/A: Albert Ms. Muema for the Claimant Mr. Kamindo for the Respondent

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