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alternative, she pleaded that if the accident herein occurred, then the same was caused by negligence on the part of the Claimant and/or the driver of motor vehicle registration number KBU 259 L. In the circumstances, the Respondent urged this court to dismiss this claim with costs. The parties herein elected to litigate this claim through viva voce evidence. A summary of the evidence placed before this court is set out below. Claimant’s Case CW1 Gordon Ng’wono Olando adopted his witness statement dated 15 th November 2025 as his evidence in chief. He recalled that on the date of the incident, his son was driving his motor vehicle registration number KBU 259 L when the said motor vehicle was involved in an accident with motor vehicle registration number KCQ 494 T. The accident caused extensive damage to his motor vehicle which he now seeks compensation. He produced some of the documents filed as exhibits. CW2 Alexander Gordon Olando Ngw’ono adopted his witness statement herein as his evidence in chief. His testimony was that on the date of the incident while driving the Claimant’s motor vehicle registration number KBU 259 L, motor vehicle registration number that was oncoming veered off unto his lane while avoiding to hit a motor vehicle infront of it thus hitting the Claimant’s motor vehicle. He added that he applied brakes and swerved immediately but he could not prevent the occurrence of the accident due to proximity between the two motor vehicles. CW3 No. 77168 PC Bobby Okari of Kilimani Traffic Base produced the accident’s police abstract dated 07th June 2023. He blamed the driver of

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motor vehicle registration number KCQ 494 T for the occurrence of the accident. On cross-examination, he conceded that he was not the accident’s investigating officer and that he was not familiar with the scene of the accident. He also conceded that he could not tell if motor vehicle registration number KCQ 494 T was overspeeding at that time of the accident, and that he had not produced the accident’s sketch plans before this court. CW4 Peter Owiti a Principal Officer at Polytech Assessors produced an inspection report dated 08th June 2023 for motor vehicle registration number KBU 259 L. He testified that after assessing the Claimant’s motor vehicle, he formed an opinion that the said motor vehicle damaged parts could be repaired at a market rate of Kshs. 530,700/=. He added that in view of the fact that the cost of repairing the said motor vehicle was over 50% its market value, the said motor vehicle was a write off. He also stated that he charged Kshs. 10,000/= for assessment of the cost of repairing the Claimant’s motor vehicle. Respondent’s Case The Respondent did not call any witnesses to prove the averments in her pleadings. That being the case, it follows that the averments in the Respondent’s pleadings remain mere allegations that this court will not consider in determining this matter. ANALYSIS & DETERMINATION This court has duly considered all the pleadings, evidence, submissions, and authorities placed before it.

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There is no contest on the occurrence of the accident herein. Further, there is no contest on the ownership of the motor vehicles that were involved in the accident leading rise to this claim. The foregoing inclines this court to find and hold that the only issues for determination by this court are liability and quantum. Liability CW2 testified that on the date of the accident, he was driving the Claimant’s motor vehicle registration number KBU 259 L towards Kilimani when the Respondent’s motor vehicle registration number KC1 494 T was driven into his lane while overtaking, thus leading to the head-on collision. He added that he applied the brakes and swerved to prevent the occurrence of the accident without success due to the proximity between the two motor vehicles. The Claimant also placed before this court a scene sketch plan contained in the motor claim form dated 08th June 2023. That scene sketch plan corroborates CW2’s testimony on the circumstances under which the accident herein occurred. The contents of that scene sketch plan were not controverted by the Respondent. The Claimant also relied on the entry in the Police Abstract dated 07 th June 2023, blaming motor vehicle registration number KCQ 494 T for the occurrence of the accident herein to urge this court to find the Respondent 100% liable for the occurrence of the accident herein. This court is well aware that a mere entry in a police abstract that a particular motor vehicle caused an accident, in and of itself, is not proof of negligence on the part of such a motor vehicle. The weight to be attached to an entry in police abstract regarding the liability of a motor vehicle in causing an accident was aptly captured by Odunga J in Florence Mutheu

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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.” A reading of the authority above shows 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. CW2’s testimony, when read together with the scene sketch plan and the contents of the police abstract on record, shows that the Claimant established a prima facie case of negligence against the Respondent. The Claimant having established a prima facie case of negligence against the Respondent, the evidential burden, not the burden of proof, shifted to the Respondent to give her version of events on the circumstances under which the accident herein occurred. The Respondent did not place any evidence before this court to dislodge the prima facie case of negligence that the Claimant established against her. The Claimant’s version of events on the circumstances under which this accident

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occurred remained uncontroverted. Therefore, this court finds no reason to disbelieve the Claimant’s version of events on the circumstances under which the accident herein occurred. It is for the reasons above that this court finds and holds the Respondent 100% liable for the occurrence of the accident herein. Quantum The Claimant pleaded for an award for Special Damages of Kshs. 540,700/= broken down as follows: a) Assessment – Kshs. 10,000/= b) Repair costs – Kshs. 540,700/= 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.” This court will proceed to determine whether the Claimant strictly proved the Special Damages pleaded in the Statement of Claim herein. For the assessment fees of Kshs. 10,000/=, the Claimant placed before this court a receipt dated 08th June 2023 from Poly – Tech Assessors proving the expenditure of Kshs. 10,000/= in assessment fees. The Claimant sought to prove his claim for the repair costs of Kshs. 530,700/= through CW4’s oral testimony and CW4’s Inspection Report from Poly – Tech Assessors dated 08th June 2023.

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The said report shows that the Claimant’s motor vehicle was to be repaired at a cost of Kshs. 530,700/=. The report also shows that the Claimant’s motor vehicle was written off. It would appear that the Claimant ought to have claimed from the Respondent for an award of his motor vehicle’s pre-accident value less the salvage value. 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.” (See also Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited [2021] eKLR) However, parties are bound by their pleadings. Therefore, this court can only determine cases as pleaded in the pleadings filed. Rule 5 (2) (a) of the Small Claims Court Act Rules permits this court to rely on an itemized estimate cost of repair prepared by a competent assessor in making an award for compensation for damage to property. CW4’s report herein is one of those reports contemplated in Rule 5 (2) (a) of the Small Claims Court Act. Rule 5 (2) (a) above is in consonance with the Court of Appeal’s finding in Nkuene Dairy Farmers Co-operative Society & another Vs Ngacha Ndeiya (2010) eKLR, where it was stated: “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.”

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CW4’s report sets out in detail how the sum of Kshs. 530,700/= being the cost of repairs, was arrived at. During cross-examination, CW4 detailed his work experience and the methodology he used in coming up with the repair costs claimed by the Respondent thus justifying the claim for Kshs. 530,700/=. The Court of Appeal in the Nkuene Case (supra) stated as follows regarding an assessor’s report: “Motor vehicle parts are sold in shops. An assessor we think would be in a position to know their case. The prices may vary from one shop to another but the price are nonetheless ascertainable even without purchasing the item and fixing it in the damaged vehicle. Motor vehicle parts are common items and any price wherein the assessor might have given would be counter-checked and either accepted or disapproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the assessors report. The experience of the assessor was not challenged and we think Onyancha, was right in descripting him as an expert and his report as being opinion evidence. The court had the right to accept or reject the opinion if circumstances so dictated…” This authority above shows that it is not enough for a party to simply dismiss an expert report by word of mouth. An expert report can only be dismissed or challenged through credible evidence, like challenging the expertise of the author of such an expert report or providing another expert report that is at variance with the report relied upon by the other party.

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The Respondent having failed to impeach the contents of CW4’s report, this court finds no reason to depart from CW4’s professional and expert opinion on the cost of repairing the Claimant’s motor vehicle. DISPOSITION The upshot of the foregoing is as follows:a) Liability 100% in favour of the Claimant b) Judgment is entered against the Respondents for Kshs. 540,700/= c) The sum of Kshs. 540,700/= awarded in (b) above, being Special Damages, will earn interest at court rate from the date of filing this claim till payment in full d) The Claimant will have the costs of this claim assessed at Kshs. 40,000/= Certificate of costs and decree to issue forthwith. Judgment accordingly. File closed. Read, signed, and delivered in open Court at Bungoma this 02 nd day of October 2025 T.O. OMONO ADJUDICATOR In the presence of: C/A: Mr. Rioba Mr. Kimathi for the Claimant Ms. Timbwa for the Respondent

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