Kamami v Kiarii & another (Claim E6016 of 2024) [2025] SCC 43 (KLR)

number KCV 867 T and the Respondents’ motor vehicle registration number KBP 690 V at GSU Drift along the service lane. It is the Claimant’s case that the Respondents and/or their authorized driver were responsible for the occurrence as per the particulars of negligence set out in paragraph 5 of the Statement of Claim. Arising from the accident, the Claimant’s was damaged and written off. The Claimant’s insurer reportedly paid Kshs. 365,470/= to the Claimant for the damage to his motor vehicle, towing fees, and tracing fees hence this subrogation claim. The Respondents entered appearance and filed a Response to the Statement of Claim dated 29th January 2025. They denied the particulars of negligence attributed to them by the Claimant. They blamed the occurrence of the accident on the Claimant’s negligence as set out in paragraph 3 of their Response. The Respondents urged this court to dismiss this claim with costs. On 02nd September 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 J in Eastern Produce Kenya Ltd v Rongai Workshop & Transporters Ltd (Civil Appeal 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

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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 however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.’’ The authority above shows that for a claim brought under the doctrine of subrogation to succeed, the Claimant must prove on a balance of probabilities that after his insured motor vehicle was damaged in an accident, his insurer made good his loss, and that the accident was caused by a third party who ought to indemnify the Claimant’s insurer. There is no contest on the ownership of the motor vehicles that were involved in the accident herein. There is also no contest that the Claimant’s motor vehicle was insured by the Claimant’s insurer at the time of the accident herein. Additionally, it is common ground that arising from the accident herein, the Claimant’s motor vehicle was damaged leading the Claimant’s insurer to expend money in returning the Claimant to the position he was in before the occurrence of the accident herein. 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 that commend to this court for determination are liability and quantum. Liability

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The evidence on record and more particularly the Claimant’s Motor Accident Claim Form dated 21st December 2021 as well as the Motor Assessment Report dated 30th December 2021 shows that the Claimant’s motor vehicle registration number KCV 867 T was damaged when it was hit from behind by motor vehicle registration number KBP 690 V. The Claimant’s driver one Michael Njuguna Kariuki stated in his witness statement that the accident herein occurred when the Claimant’s motor vehicle was hit by the Respondents motor vehicle. took the position that maintained the position that the 1 st Respondent and/or her agent was solely responsible for the occurrence of the accident. The Claimant also relied on the entry in the Police Abstract dated 17 th December 2021 blaming motor vehicle registration number KBP 690 V for the occurrence to urge this court to find the Respondents jointly and severally 100% liable for the occurrence of the accident herein. 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

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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. 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 (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’ The Respondents on the other hand did not file any witness statements. They sought to rely on the averments in the Response to the Claim to prove the particulars of negligence attributed to them by their Claimant.

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The law in this jurisdiction is that averments in pleadings are mere allegations which need to be proved by evidence. It thus follows that even in instances where parties elect to have a claim heard and determined under section 30 of the Small Claims Court Act, the pleadings on record do not become evidence. The averments in those pleadings need not be proved by evidence. In this case, the Respondents neither filed witness statements nor documents in support of the averments in their pleadings. Therefore, it follows that the averments in the Respondents’ pleadings remained mere allegations hence the same are not up for consideration by this court. The foregoing shows that the Claimant’s evidence on the circumstances under which the accident herein occurred was not controverted by the Respondents. This court finds no reason to disbelieve the Claimant’s version of events on how the accident herein occurred. Given the reasons above, this court finds and holds that the Respondents were jointly and severally 100% liable for the occurrence of the accident herein. Quantum The Claimant pleaded that his insurer was entitled to recover from the Respondents Kshs. 365,470/= broken down as follows:(a) Total loss of motor – vehicle – Kshs. 330,000/= (b)Towing fees – Kshs. 9,000/= (c) Tracing fees – Kshs. 26,470/= The damages above are in the nature of special damages. The law demands that for special damages to be awarded the same must be pleaded and proved.

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This court will proceed to determine if the Claimant’s insurer proved on a balance of probabilities that they expended the money above in making good the Claimant’s loss. The cheque format raised on 05th April 2022 shows that the Claimant’s insurer paid Kshs. 330,000/= to the Claimant in making good the Claimant’s loss. The cheque format raised on 05 th May 2022 on the other hand shows that the Claimant’s insurer paid Kshs. 9,000/= to the Claimant being payment for towing fees incurred after the accident. On tracing fees, the Claimant sought to rely on the Investic Insurance International Investigators invoice dated 08 th December 2023 to show that they are entitled to a reimbursement of Kshs. 26,470/= from the Respondents. An invoice is basically a request for payment. An invoice in and of itself is not proof that the money demanded in that invoice was paid. In Guardian Coach Ltd & another v Kiptoo (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR) the court stated as follows on reliance on an invoice to prove Special Damages: From the record, the respondent produced various receipts, bills and invoices from various hospitals, health providers and chemist in proof of the cost of medical expenses pleaded. Notably however, it is a well settled principle of law that an invoice is not proof of payment. Special damages can only be proved by producing actual receipts or invoices endorsed with the word “Paid” (See: Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR.) (Emphasis added). The invoice from Investic Insurance International Investigators Limited placed before this court is not endorsed with the word “Paid”. Therefore, the

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said invoice cannot be used to claim an indemnity of tracing fees of Kshs. 26,470/= from the Respondents. It is against this backdrop that this court finds and holds that the Claimant proved that her insurer is entitled to reimbursement/indemnity of the following costs from the Respondents:a) Total loss of the motor – vehicle – Kshs. 330,000/= b) Towing fees – Kshs. 9,000/= Total – Kshs. 339,000/= DISPOSITION The upshot of the foregoing is as follows:a) Liability 100% in favour of the Claimant b) Judgment is entered against the Respondents jointly and severally for Kshs. 339,000/= c) The sum of Kshs. 339,000/= 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/= The prayer for VAT of 16% on the costs herein is dismissed since costs arising from a claim are not income to attract VAT. Certificate of costs and decree to issue forthwith. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 23 rd day of September 2025 T.O. OMONO ADJUDICATOR

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In the presence of: C/A: Albert Ms. Muema for the Claimant Mr. Kamindo for the Respondent

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