scc-2025-00044

The Respondents entered appearance and filed a joint Response to the Claim dated 21st March 2025 denying the occurrence of the accident herein. The Respondents pleaded in the alternative that if the accident herein occurred, then the same was solely caused by the Claimant’s negligence. A summary of the evidence placed before this court by the parties herein is set out below. Claimant’s Case CW1 George Otieno Ogutu adopted his witness statement dated 24th January 2025 as his evidence in chief. He also produced the documents listed in his list of documents save for the motor vehicle assessment report. CW2 Daniel Mukundi, an assessor at Strategic Motor vehicle Valuers and Assessors produced the motor vehicle assessment report dated 05 th December 2024 (Cexh.2). On cross-examination, he placed the Claimant’s vehicle’s pre-accident value at Kshs. 820,000/= while the value of the salvage was Kshs. 180,000/=. He added that the Claimant remained with the salvage. Respondent’s Case RW1 No. 81695 PC (W) Jackline Naeku of Embakasi Police Station produced the police abstract dated 06th November 2024, blaming the Claimant for the occurrence of the accident. She read out the alleged contents of an OB extract prepared by PC Kimathi, who investigated the accident, setting out the circumstances of the accident. Her testimony was that the accident was caused when motor vehicle registration number KDE 737 J changed lanes abruptly without due care and attention. During cross-examination, she conceded that she did not visit the scene. She also conceded that she had not produced the sketch plans. Kitale SCC Claim. No. E036 of 2024 Page 2 of 9 Judgment

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RW2 Wilson Mbiro Mburi adopted his witness statement dated 24 th December 2025 as his evidence in chief. He blamed the Claimant for the occurrence of the accident since the Claimant reportedly hit motor vehicle registration number KDD 470 J and rolled. During cross-examination, he stated that he reported the matter to the police when the OB entry relating to this accident was made. ANALYSIS AND DETERMINATION This court has duly considered the pleadings, the documents, written submissions, as well as the authorities relied upon by the respective parties. The parties herein were all in agreement that the motor vehicles herein were involved in a road traffic accident on 01 st November 2024 along the Eastern Bypass. All parties were also in agreement that motor vehicle registration number KDE 737 J was owned by the Claimant at the time of the accident, and that motor vehicle registration number KDD 470 J was owned by the 2 nd Respondent and driven by the 1st Respondent at the time of the accident. The 2nd Respondent did not dispute the fact that the 1 st Respondent was its servant and/or agent at the time the accident herein occurred. Therefore, it follows that in the event this court finds and holds that the 1 st Respondent was negligent at the time of the accident herein, the 2 nd Respondent will be vicariously liable for the 1st Respondent’s negligence. Given the above, the only issues that are up for determination by this court are liability and quantum. Liability The Claimant blamed the 1st Respondent for hitting his vehicle thus causing the accident. the 1st Respondent and PC Naeku (RW2) on the other hand blamed the Claimant for causing the accident by abruptly changing lanes without due care and attention. Kitale SCC Claim. No. E036 of 2024 Page 3 of 9 Judgment

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The Respondents relied on the entry in the police abstract dated 06 th November 2024 (Rexh.1) to blame the Claimant for the accident. That police abstract was issued by PC Kimathi who is also listed in the same abstract as a witness. Interestingly, the Claimant on the other hand relied on a police abstract dated 09th November 2024 whose entries show that the matter was pending under investigations. PC Kimathi is also listed in that police abstract as a witness. Given that the two abstracts emanate from the same police station, and given that the Claimant’s police abstract was issued days after the issuance of the Respondents police abstract, one wonders where the two police abstracts have conflicting entries on who who was to blame for the occurrence of the accident. It is this court’s considered view that only the accident’s investigations officer could satisfactority explain that contradiction. In the absence of the investigation officer’s testimony, the contents of the police abstracts place before this court can not be used to apportion liability in this matter. Whereas PC Naeku purported to read out the circumstances of the accident from an OB entry, this court notes that neither party filed an OB extract as evidence. Further, PC Naeku conceded that she did not visit the scene, therefore, she cannot speak to the circumstances under which the accident herein occurred. In the absence of such an OB extract on record, this court cannot rely on PC Naeku’s testimony on the circumstances under which the accident herein occurred. The Respondents purported to file the accident’s alleged OB extract/entry by attaching the same on their written submissions. A perusal of that alleged OB extract/entry shows that the same was not certified. It could as well be any other document from nowhere or anywhere. Kitale SCC Claim. No. E036 of 2024 Page 4 of 9 Judgment

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In any event, it is trite law that submissions are not evidence. In the words of Magare J in Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling):- ‘Submissions are neither pleading nor evidence. Beautiful pleadings are akin to watching warm fire in television. It will not remove any morning chilly weather. The court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR: “Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” Guided by the foregoing and the authority above, this court finds and holds that the alleged OB extract/entry attached to the Respondents’ written submissions is not properly before this court. The same is expunged from the record. The photos filed by both parties were taken off the road. They cannot be relied upon in determining liability in this matter. In the face of contradicting evidence by the Claimant and the Respondents on the circumstances under which the accident herein occurred, this was a proper case for the accident’s eye witnesses and the accident’s investigating officer to be called as witnesses to shed more light on the circumstances under which the accident occurred. This was also a proper case for the production of sketch plans/maps. Kitale SCC Claim. No. E036 of 2024 Page 5 of 9 Judgment

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This is a clear case of the Claimant’s word against the Respondents’ word on the circumstances under which the accident herein occurred. The evidence on record is barely adequate for this court to apportion liability in this matter. In Farah vs. Lento Agencies [2006] 1 KLR 123, the court expressed itself as follows regarding the circumstances akin to those obtaining in this case: “In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. Everyday, proof of collision is held to be sufficient to call the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesistantly hold that both are to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them… The trial court...had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”(Emphasis added) The Farah case (supra) was cited with approval in Moiz Motor Limited & another v Muthoka & 2 others (Civil Appeal E079 of 2022) [2023] KEHC 26428 (KLR) to reiterate the position that where the evidence on record in inadequate for the court to apportion liability, the drivers should be held equally to blame for the occurrence of the accident. Kitale SCC Claim. No. E036 of 2024 Page 6 of 9 Judgment

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For the reasons above, this court apportions liability in the ratio of 50%:50%. Quantum of Damages The Claimant pleaded for an award of Special Damages broken down as follows:a) Pre-accident value – Kshs. 820,000/= b) Towing fees – Kshs. 10,000/= c) Assessment fees – Kshs. 10,000/= It is well settled in this jurisdiction that Special Damages need to be pleaded and strictly proved before the same are awarded. This court will proceed to sequentially determine if the Claimant proved the Special Damages that he pleaded. (a) Pre-accident value The motor vehicle assessment report dated 05 th December 2024 from Strategic Automobile Valuers and Loss Assessors shows that the Claimant’s motor vehicle was written off after the accident. The said report shows that motor vehicle registration number KDE 470 J was valued at Kshs. 820,000/= before the occurrence of the accident, while the salvage value was Kshs. 180,000/= after the accident. This clearly shows that the Claimant’s motor vehicle could not be repaired after the accident. In situations where a motor vehicle is written off, 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.” Kitale SCC Claim. No. E036 of 2024 Page 7 of 9 Judgment

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The position above was also followed in Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited [2021] eKLR. In the circumstances, this court finds and holds that the Claimant proved to the required standards that he is entitled to compensation to the sum of (Kshs. 820,000/= less the salvage value of Kshs. 180,000/=) which equals to Kshs. 640,000/= being the material damage to the Claimant’s motor vehicle herein. (b) Towing fees and Assessor’s Fees The Claimant did not place before this court receipts to prove the claims for towing fees and assessor’s fees; hence, those claims are dismissed for want of proof. DISPOSITION Given the foregoing, judgment is entered against the 1st and 3rd Respondents jointly and severally for:a) Liability – 50%:50% b) Special Damages – Kshs. 640,000/= Grand Award – Kshs. 640,000/= Less 50% Net Award – Kshs. 320,000/= The award above will earn interest at court rate from the date of filing this claim till payment in full. The Claimant will have the costs of this claim assessed per section 33 of the Act at Kshs. 50,000/= less 50% which comes to Kshs. 25,000/=. Kitale SCC Claim. No. E036 of 2024 Page 8 of 9 Judgment

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Certificate of costs and decree to issue forthwith upon payment of requisite court fees, if any. File closed. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 10th day of July 2025 T.O. OMONO Adjudicator In the presence of: Mburia h/b for Mwangi for the Claimant Nyambura for the Respondent C/A Albert Kitale SCC Claim. No. E036 of 2024 Page 9 of 9 Judgment

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