Kasina v Ena Investment Ltd (Claim E8814 of 2024) [2025] SCC 53 (KLR)

It was further averred by the Claimant that the damaged to her vehicle was fully indemnified by her insurer hence this claim. The Respondent entered appearance and filed a Response to the Statement of Claim dated 29th August 2024 praying that this claim be dismissed on the ground that the accident herein was wholly caused by the Claimant’s negligence. Interestingly, the Response to the Statement of Claim herein was not properly executed by the Respondent. A strict interpretation of the law on how pleadings filed by limited companies ought to be executed would render the Response to the Claim herein worthless papers before this court. It is also noteworthy that the Respondent did not file any witness statements and documents in support of their case. On 26th June 2025, the parties herein recorded a consent to the effect that this matter be determined under section 30 of the Act notwithstanding the fact that the Respondent had not filed any witness statements and documentary evidence. 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 Respondent neither filed witness statements nor documents in support of the averments in their Response to the Statement of Claim. It should be remembered that a consent between parties to proceed under section 30 of the Act does not turn averments in pleadings into evidence. Proceeding under section 30 of the Act still requires parties to lead evidence in support of their respective cases.

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It is against this backdrop that this court holds and finds that the Respondent’s Response to the Statement of Claim filed before this court lacks any evidential value. This being a claim under the doctrine of subrogation, this court is reminded of the holding by 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 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.’’ Having fully appreciated the authority above, and after analyzing the evidence on record, this court is satisfied that the claim before this court is a claim that has been properly instituted under the doctrine of subrogation. In the circumstances, the issues that commend to this court for determination are liability and quantum. Liability The Claimant’s version of events on how the accident herein occurred was not controverted by the Respondent. In Karuru Munyororo vs Joseph

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Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, Makhandia, J held that: “The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon. It is my view, that a party to a case having filed his pleadings should call evidence where the matter is considered to proceed by way of evidence. It is trite law that where a party fails to call evidence in support of its case, the party’s pleading are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which have not been subjected to the required test of crossexamination. A defence in which no evidence is adduced to support it cannot be used to challenge the plaintiff’s case. The failure to call evidence means that the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged. In such a situation the plaintiff is taken to have proved its case on balance of probability in absence of the defendant’s evidence. In the instant case the plaintiff gave evidence which was not challenged, proved documents in support of her claim. I find the plaintiff’s evidence to be credible and I am satisfied the plaintiff pleaded and proved her claim for special damages.” In the absence of evidence by the Respondent to controvert the Claimant’s version of events on how the accident herein occurred, this court finds no reason to disbelieve the Claimant’s version of events on how the accident herein occurred.

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The foregoing inclines this court to find the Respondent 100% liable for the occurrence of the accident herein. Quantum The Claimant prayed for judgment against the Respondent in the sum of Kshs. 246,560/= tabulated as follows:a) Repairs of Kshs. 215,080/= b) Assessment fees of Kshs. 6,380/= c) Tracing fees of Kshs. 22,200/= d) Re-inspection fees of Kshs. 2,900/= The law in this jurisdiction is that under the doctrine of subrogation an insurer can only recover the sum or money they prove to have paid in making good their insured’s claim. The cheques dated 17th August 2023 and the payment vouchers placed before this court by the Claimant proved to the required standards that the Claimant’s insurer expended Kshs. 246,560/= in making good the Claimant’s loss that arose from the accident herein. The foregoing inclines this court to find and hold that the Claimant proved this claim to the required standards. DISPOSITION The upshot of the foregoing is as follows:a) Liability 100% in favour of the Claimant b) Judgment is entered against the Respondent for the sum of Kshs. 246,560/= c) The sum of Kshs. 246,560/= awarded in (b) 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/=

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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 Cherono for the Claimant Morara for the Respondent

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