scc-2025-00048

Claim and Counterclaim amended on 31 st January 2025. The Respondents denied the particulars of negligence attributed to them by the Claimant. The Respondents pleaded that the accident herein was solely caused by negligence on the part of the Claimant’s driver. Arising from the accident herein, motor vehicles registration numbers KCS 950 U and KCZ 776 B were damaged causing their respective insurers to repair the said motor vehicles hence this claim and counterclaim. Consequently, the Respondents prayed for judgment against the Claimant for:(a) Damages for the cost of repairs and losses incurred amounting to Kshs. 1,055,155/= (b)Interest on the said sum at court rates from the date of the accident until payment in full (c) Costs of this suit (d)Any further or other relief that this Honourable Court may deem fit and just to grant A summary of the evidence placed before this court by the parties herein is set out below. Claimant’s Case CW1 Karani Jackson a Legal Officer at Pioneer Insurance adopted his witness statement herein as his evidence in chief. He stated that at the time of the accident herein, the Claimant’s motor vehicle registration number KCS 950 U was insured by Pioneer Insurance Company through an insurance Policy number HQ/0809/2022/12/002834. He also produced some of the documents filed by the Claimant including Claim Payment Vouchers as exhibits.

page 2 of 11

CW2 Francis Mbugua Karanja the driver of motor vehicle registration number KCS 950 U at time of the accident adopted his witness statement dated 05th September 2024 as his evidence in chief, and produced some exhibits listed in the Claimant’s list of documents. His testimony was that the accident occurred since the driver of motor cycle registration number KCZ 776 B failed to stop at a junction to give way as required of him since the said driver was the one joining the main road. He added that he applied emergency brakes to prevent the occurrence of the accident. CW3 No. 77168 PC Bobby Okari of Kilimani Traffic Base produced the police abstract dated 13th April 2024 and the OB. extract relating to this accident. His testimony was that the accident occurred because the driver of motor vehicle registration number KCZ 776 B failed to give way. He added that he had charged Kshs. 5,000/= for court attendance. Respondents Case RW1 David Mumo Koki adopted his witness statement dated 26th November 2024 as his evidence in chief and produced all the documents filed by the Respondents as exhibits. He blamed the occurrence of the accident on the driver of motor vehicle registration number KCS 950 U for failing to give way. ANALYSIS & DETERMINATION This court has duly considered all the pleadings, evidence, submissions as well as authorities placed before it. Earlier in this judgment, this court stated that the Claim and the Counterclaim herein are based on the principle of subrogation. Muhochi J in Eastern Produce Kenya Ltd v Rongai Workshop & Transporters Ltd (Civil Appeal 125 of 2018)

page 3 of 11

[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 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 common ground that the accident herein occurred and that it involved motor vehicles registration numbers KCS 950 U and KCZ 776 B. It is also common ground that, arising from the accident, the two motor vehicles were damaged, causing the respective insurance companies to repair the said motor vehicles to the satisfaction of the insured. In view of the foregoing, the only issue for determination is liability and quantum. Liability CW2 testified that the accident herein occurred when RW1 failed to stop at the Kindaruma junction to give way to other motor vehicles. RW1 on the other hand testified that CW2 was the one who failed to give way for motor vehicle registration number KCZ 776 B hence the accident. The Claimant also relied on the police abstract (Cexh.1) produced by CW3, blaming RW1 for the occurrence of the accident to prove her case. A reading

page 4 of 11

of paragraph 7 of the Police Abstract herein shows that the outcome of investigations regarding this accident was that the accident was caused by motor vehicle registration number KCZ 776 B. The Respondent submitted that this court could not rely on entries in the police abstract herein to apportion negligence on the Respondents. 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 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

page 5 of 11

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. 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. The only evidence used by the Respondent to rebut the entry in the police abstract is their own oral testimony and/or witness statement. The Claimant on the other hand placed before this court a sketch plan contained in the Motor vehicle accident claim form dated 15th April 2024. The contents of that sketch plan were not controverted by the Respondents. A perusal of that sketch plan shows that the driver of motor vehicle registration number KCZ 776 B did not stop at a junction, thereby failing to give way to other motor vehicles, hence the accident herein. When the sketch plan is read together with CW2’s testimony and the contents of the police abstract herein, it leaves no doubt that the accident herein occurred when RW1 failed to stop to give way to other road users. In the circumstances, this court finds and holds that the respondents were jointly and severally 100% liable for the occurrence of the accident herein.

page 6 of 11

Having found the Respondents jointly and severally 100% liable for the occurrence of the accident herein, it follows that the Respondents’ counterclaim must suffer the fate of dismissal. Quantum The Claimant prayed for an award of the following:a) Repair costs of Kshs. 173,120/= b) Assessment fees of Kshs. 6,380/= c) Re-inspection fees of Kshs. 2,320/= d) Motor vehicle search fee of Kshs. 550/= The sums above are special damages that need only be pleaded but also strictly proved before they are awarded. To this end this court is fortified by the holding in Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011)), where Mahmud Mohammed, JSC. delivering the judgment of the Supreme Court of Nigeria, stated as follows: “I must emphasize that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff …. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award...” The reasoning above was also followed by the Court of Appeal in David Bagine Vs Martin Bundi [1997] eKLR, where the Court of Appeal stated as follows: -

page 7 of 11

“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:"....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" Guided by the authorities above, this court will now determine whether the Claimant strictly proved the claims above. The Claimant placed before this court Claim Fee Payment Vouchers (Cexh. 13-15) showing payment to him by Pioneer General Insurance Limited, the amounts for repairs, assessment fees, and reinspection fees of motor vehicle registration number KCS 950 U totaling to Kshs. 181,820/=. The e-receipt (Cexh.17) placed before this court by the Claimant to claim for Kshs. 550/= shows that that amount was paid by the Claimant’s counsel but not Pioneer Insurance. Therefore, Pioneer Insurance can not purport to recover Kshs. 550/= from the Respondents. The Claimant submitted that their insurer was also entitled to the sum of Kshs. 5,000/= reportedly paid to CW3 to attend court. No receipt was placed before this court to evidence such an expenditure. This court agrees with the respondents that Kshs. 5,000/= can not be awarded to the Claimant’s insurer in the absence of proof.

page 8 of 11

In any event, the sum of Kshs. 5,000/= was not pleaded in the Statement of Claim. Parties are bound by their pleadings. Further, even if CW3 was paid the Kshs. 5,000/= to attend court, such an expenditure can not be awarded as special damages but as costs of the claim in the nature of disbursements, but upon proof. Turning to the counterclaim, had the Respondent proved that the Claimant was 100% liable for the occurrence of the accident herein, this court would have awarded the 1st Respondent’s insurer Kshs. 1,000,000/= since the documentary evidence placed before this court proved on a balance of probabilities that arising from the accident herein, the 1 st Respondent’s insurer expended Kshs. 1,055,155/= in making good the 1 st Respondent’s loss. Costs of the claim The general rule is that costs follow the event. The Claimant, having succeeded in his claim, is entitled to costs. Costs in the Small Claims Court Act are assessed per Section 33 of the Small Claims Act, which provides that:The Court may award costs to the successful party in any proceedings. In any other case parties shall bear their respective costs of the proceedings. Without prejudice to subsections (1) and (2), the Court may award to a successful party disbursements incurred on account of the proceedings. Except as provided in subsection (2), costs other than disbursements, shall not be granted to or awarded against any party to any proceedings before a Court.

page 9 of 11

Rule 37 of the Small Claims Court Rules provides that in assessing costs recoverable under section 33 (1) of the Act, the Court shall be guided by the Second Schedule to these Rules. The schedule contemplated in rule 37 above has not been enacted. Further, there are no practice directions on the application of the Advocates Remuneration Order in the Small Claims Court. It is against this background that this court finds that, as of today, assessment of costs in the Small Claims Court is done through judicial discretion as guided by section 33 of the Small Claims Court Act. Guided by section 33 of the Small Claims Court Act, taking into consideration the fees paid by the Claimant in filing pleadings and other documents in this matter, the number of court attendances, the time taken to conclude the matter, the award in this matter, and the fact that the claimant engaged an advocate, this court assesses the costs of this claim at Kshs. 30,000/= 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. 181,820/= c) The sum of Kshs. 181,820/= awarded in (a) above will earn interest at court rates from the date of this judgment till payment in full d) The Respondents' Counterclaim is dismissed with costs e) The Claimant will have the costs of this claim and Counterclaim 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 26 th day of August 2025

page 10 of 11

T.O. OMONO ADJUDICATOR In the presence of: C/A: Albert Ms. Ateka for the Claimant

page 11 of 11