Wanjala v Maina & another (Claim E5380 of 2024) [2025] SCC 54 (KLR)

5. The Respondent entered appearance and filed a Response to the Claimant’s claim denying the particulars of negligence attributed to him by the Claimant. He denied the occurrence of the accident. He pleaded in the alternative that if the accident herein occurred, then the same was wholly caused by the Respondent’s negligence. 6. The Respondent also joined the Third Party to this claim on the ground that the Third Party’s motor vehicle registration number KCN 534 U contributed to the occurrence of the accident herein, therefore, the Third Party ought to indemnify him in the event liability in this claim attaches to him. 7. The Third Party responded to the Third Party Notice through a Response to the Third Party Notice dated 21st February 2025 denying contributing to the occurrence of the accident herein since the accident herein was caused by the Claimant and the Respondent. She urged this court to dismiss the Third Party Notice with costs to her. 8. This claim proceeded to trial when the parties herein adduced evidence summarized below. Claimant’s Case 9. CW1 Allan Wasilwa Wanjala adopted his witness statement herein as his evidence in chief. He also produced some of the documents in his list of documents herein as exhibits. 10. His testimony was that on the date of the accident while driving his motor vehicle registration number KCL 250 A along Magadi road, he slowed down near Brookhouse International School due to trafic build up only for motor vehicle registration number KCV 813 E to ram into his motor vehicle from behind. 11. He added that the accident caused damage to his motor vehicle causing him to spend Kshs. 194,300/ = towards repairing it. 12. On cross-examination, he added that motor vehicle registration number KCN 834 U was also involved in the accident. He added that whereas his motor vehicle had a comprehensive insurance cover at the time of the accident, his insurer had not compensated him hence this claim. 13. CW2 Drayton Aaron Maina a motor vehicle assessor from Index Assessment and Insurance Investigations Limited produced the Claimant’s motor vehicle assessment report dated 28th November 2023, the assessment fees receipt dated 28th November 2023, motor vehicle re-inspection report dated 04th December 2023, and the re-inspection fees receipt dated 04th December 2023 as exhibits. 14. CW3 No. 77804 Sgt. Dickens Andete attached to Lang’ata Police Station testified that he was the accident’s lead investigator. He produced the accident’s police abstract dated 31st August 2023 blaming the Respondent for the occurrence of the accident. 15. In cross-examination, he could not tell whether the Third Party’s motor vehicle was involved in the accident. He conceded that he did not visit the scene. He added he was aware of the circumstances of the accident since he recorded statements from the Claimant and the Respondent. Respondent’s Case 16. RW1 Margaret Muthoni Kalya is an Operations Manager at Sunrays General Insurance Investigators Limited. She produced the investigations report dated 16th October 2023 as an exhibit. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 2

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17. In cross-examination, she conceded that her instructions in this matter was limited to tracing the owner of motor vehicle registration number KCN 534 U, the said motor vehicle owner’s physical location, and their attachable assets. 18. She also conceded that she was not in a position to blame anyone for the occurrence of the accident. 19. RW2 Joel Mwangi Maina adopted his witness statement herein as his evidence in chief. He also produced motor vehicle registration number KCV 813 E assessment report dated 05th September 2023 and the motor vehicle accident report form dated 01st September 2023 as exhibits. 20. He blamed the Third Party for the occurrence of the accident since the Third Party’s motor vehicle hit his motor vehicle from behind causing it to hit the Claimant’s motor vehicle from behind. 21. In cross-examination, he added that he was required to maintain a safe distance between his motor vehicle and the Claimant’s motor vehicle. He stated that given that the road was slippery, he was expected to take more precaution. He added that the distance between his motor vehicle and the Respondent’s motor vehicle was 4 - 5 metres. 22. He blamed the Claimant’s motor vehicle for stopping abruptly while approaching a roundabout. Third Party’s Case 23. TPW1 Rono Betty Chepkirui adopted as his witness statement dated 17th April 2025 as his evidence in chief. She admitted hitting the Respondent’s motor vehicle from behind on the date of the incident. However, she added that she hit the Respondent’s motor vehicle since it had stopped abruptly. 24. She also stated that the road was slippery on the date of the incident, and that when she hit the Respondent’s motor vehicle, the said motor vehicle had stopped hence it could not move to hit the Claimant’s motor vehicle. 25. It was a further testimony that she swerved in an attempt to avoid hitting the Respondent’s motor vehicle hence the impact on the Respondent’s motor vehicle was minimal. Analysis & Determination 26. This court has duly considered all the pleadings, evidence, submissions, and authorities placed before it. 27. Before embarking on an analysis of this claim, it is imperative to dispose a preliminary issue of double compensation raised by the Respondent. 28. The Respondent appeared to suggest that given the Claimant’s motor vehicle was insured at the time of the accident, this claim was not properly before this court since the Claimant was seeking double compensation. In response, the Claimant stated that his insurer is yet to compensate him for the damage to his motor vehicle. 29. The Respondent having raised the issue of double compensation was duty bound to lead evidence to prove that the Claimant’s insurer compensated him for the damage to his motor vehicle. He who alleges must prove. The Respondent did not adduce any evidence on the alleged Claimant’s compensation by his insurer. 30. The issue of double compensation could only arise if the Respondent had proved that the Claimant’s insurer paid him for the damage to his motor vehicle. 31. In the absence of evidence that the Claimant’s insurer compensated the Claimant for the damage to his motor vehicle, this claim is properly before this court. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 3

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32. There is no contest that the accident herein occurred leading to damage to the Claimant’s motor vehicle. It is also not disputed that the Claimant repaired his motor vehicle after the accident. Further, it is common ground that the ownership of the motor vehicles involved in the accident herein is not disputed. 33. It is against this backdrop that this court finds and holds that the only issues that commend to this court for determination are liability and quantum. Liability 34. CW1 relied on his testimony, CW3’s testimony, and the contents of the police abstract dated 31st August 2023 in support of his position that the Respondent was solely responsible for the occurrence of the accident herein. 35. The Respondent on the other hand relied on his own testimony and the contents of the police abstract dated 31st August 2023 to prove on a balance of probabilities that the accident herein was caused by the Claimant’s and the Third Party’s negligence. 36. There is no contest that the Respondent hit the Claimant’s motor vehicle from behind. The Claimant’s testimony was that the Respondent hit his motor vehicle when he had slowed down while approaching a roundabout. This testimony was corroborated by the accident’s lead investigator (CW3) who also recorded the Claimant’s and the Respondent’s statements on the circumstances under which the accident herein occurred. His investigations informed the entry in the police abstract dated 31st August 2023 blaming the Respondent for the occurrence of the accident herein. 37. It is not lost to this court that the Respondent was also issued with another police abstract dated 31st August 2023 blaming the Third Party for the occurrence of the accident herein. 38. The law in this jurisdiction is that entries in police abstracts on who is to blame for an accident are only of a persuasive nature, and not conclusive proof of negligence on the part of the party blamed therein for the occurrence of the accident (see Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR)). 39. Be that as it may, a reading of the police abstract herein issued to the Respondent shows that the entry in the said abstract on who was to blame for the occurrence of the accident was limited to who was to blame for the collision between the Claimant’s motor vehicle and the Third Party’s motor vehicle. That police abstract does not even mention the involvement of the Claimant’s motor vehicle in the accident. Therefore, the entry in that police abstract to the efiect that the Third Party’s motor vehicle was to blame for the accident can not be used as persuasive evidence in determining liability between the Claimant and the Respondent. 40. This court has already stated above that there is no contest that the Respondent’s motor vehicle hit the Claimant’s motor vehicle from behind. That shows that a prima facie case of negligence was established against the Respondent. This position is buttressed by Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) 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. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 4

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41. 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 suficient 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 42. The foregoing shows that the Claimant having proved on a balance of probabilities that his motor vehicle was hit from behind by the Respondent’s motor vehicle, the evidential burden shifted to the Respondent to prove on a balance of probabilities that he hit the Claimant’s motor vehicle from behind on account of the Claimant’s negligence or another person’s negligence. 43. In a bid to prove that he was not negligent in causing the rear collision, the Respondent testified that the Claimant stopped abruptly leading to the accident, and that he was keeping a distance of 4 - 5 metres between his motor vehicle and the Claimant’s motor vehicle before the accident occurred. He also blamed the Third Party for hitting his motor vehicle from behind causing it to hit the Claimant’s motor vehicle from behind. 44. The evidence on record shows that the accident herein occurred when the Claimant was approaching a roundabout. The Respondent confirmed as much. Whereas the Respondent alleged that the Claimant stopped abruptly, the Claimant testified that he had just slowed down as he approached the roundabout. 45. It is noteworthy that the Respondent and the Third Party admitted that the road was slippery on the date of the accident. It is a matter of public notoriety that where the road is slippery, a motor vehicle’s breaking distance increases. Such a situation demands of drivers to keep a safe distance between them to permit safe breaking when the circumstances permit. 46. This court is of the considered view that the distance of 4 - 5 metres maintained by the Respondent on the date of the incident given the slippery conditions of the road on the date of the accident was not reasonable safe distance that could permit the Respondent to break in a bid to prevent the occurrence of the accident herein. 47. Whereas the Respondent blamed the Third Party for the accident herein, the Third Party maintained that she hit the Respondent’s motor vehicle from behind when the Respondent’s motor vehicle had already stopped. She added that given that she swerved and slightly hit the Respondent’s motor vehicle, that impact could not have caused the Respondent’s stationary motor vehicle to hit the Claimant’s motor vehicle. 48. The police abstract adduced by the Respondent blamed the Third Party for the collision between her and the Respondent. This court has already held in this judgment that an entry in a police abstract regarding who is to blame for the accident is not conclusive proof of negligence. 49. In the face of the Third Party’s version of events on the circumstances of the accident controverting the Respondent’s version of events, the Respondent was legally bound to in addition to the police abstract he produced, lead additional evidence like the accident investigating oficer’s evidence to prove on a balance of probabilities that the Third Party caused the accident herein. 50. In the absence of the evidence alluded to above, the Respondent’s case against the Third Party’s case remained the Respondent’s word against the Third Party’s word. Such evidence can not be used to apportion liability between the Respondent and the Third Party or the Claimant and the Third Party. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 5

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Simply put, the Respondent failed to lead evidence to prove on a balance of probabilities that the Third Party’s actions or omissions caused his motor vehicle to hit the Claimant’s motor vehicle on the date of the accident. 51. The foregoing shows that the Respondent failed to lead convincing evidence to dislodge the primafacie case of negligence established against him by the Claimant. 52. The circumstances of this case are almost on all fours with the circumstances in the Orioki case (supra) where the Court of Appeal in finding the appellant 100% liable for hitting another motor vehicle from behind stated doth: The appellant failed to provide convincing evidence that the third-party vehicle or any other factor was the primary cause of the accident. The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. Furthermore, the evidence showed that the appellant did not maintain a safe distance, which contributed to the collision. In Kenya Ports Authority v East African Power & Lighting Co. Ltd, (supra), it was held that a police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon.In this case, the appellant failed to adduce any compelling evidence to counter the police abstract or to disprove the causal link between his actions and the damage. The police abstract, while not conclusive, indicated that the appellant was at fault for the rear-end collision. 53. Given the reasons above and guided by the authority above, this court finds the Respondent 100% liable for the accident herein. Quantum 54. 55. The Claimant pleaded for an award for Special Damages of Kshs. 351,850/= broken down as follows: a. Motor vehicle repair costs - Kshs. 194,300/= b. Car hire expenses - Kshs. 150,000/= c. Assessment fees – Kshs. 5,000/= d. Re-inspection fees - Kshs. 2,000/= e. Motor vehicle records - Kshs. 550/= 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.” 56. Similarly, the Court of Appeal in David Bagine v Martin Bundi [1997] eKLR stated as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 6

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in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter v Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintifis 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", 57. This court will proceed to determine whether the Claimant strictly proved the Special Damages pleaded in the Statement of Claim herein. A. Motor vehicle repair costs 58. On motor vehicle repair costs, the Claimant pleaded in his amended Statement of Claim that it cost him Kshs. 194,300/= to repair his motor vehicle. CW2 produced a motor vehicle assessment report dated 28th November 2023 to corroborate the Claimant’s testimony on the cost of repairing the Claimant’s motor vehicle. 59. 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. CW2’s report herein is one of those reports contemplated in Rule 5 (2) (a) of the Small Claims Court Act. 60. The Claimant also adduced an ETR receipt dated 29th November 2023 from Bei Nafuu Auto Spare for Kshs. 138,620/= and an ETR receipt dated 05th December 2023 for Kshs. 55,580/= evidencing that arising from the accident herein he expended Kshs. 194,300/= in repairing his motor vehicle. 61. In the circumstances, this court makes an award of Kshs. 194,300/= for the repair costs. B. Car hire costs 62. Turning to the claim for car hire charges of Kshs. 150,000/=, the Claimant testified that he used to hire a car at Kshs. 5,000/= per day during the period his car was under repair. He also placed before this court car hire receipts from Porto Safaris Consultancy to prove care hire expenses of Kshs. 150,000/=. 63. The evidence on record for the Claimant’s claim for car hire costs shows that the Claimant reportedly hired a car for thirty days during the period his motor vehicle was under repair. 64. Ordinarily, a motor vehicle assessment report provides the estimated number of days required to repair a motor vehicle. The Claimant’s motor vehicle assessment report herein is silent on the duration it would have taken to repair the Claimant’s motor vehicle. 65. That being the case, should this court award the Claimant Kshs. 150,000/= as pleaded and proved by the car hire receipts? This question was answered by the Court of Appeal in African Highland Produce Ltd v John Kisorio (2001) eKLR while addressing on all fours the question of mitigation of loss. The Court of Appeal rendered itself thus:“ It is the duty of the plaintifi to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues. He cannot claim as damages any sum which is due to his own neglect. The duty arises immediately a plaintifi realizes that an interest of his has been injured by a breach of contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those of the defendant. The plaintifi is under no obligation to injure himself in his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to minimize the damages or embark on dubious litigation. The question of what https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 7

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is reasonable for a plaintifi to do in mitigation of his damages is not a question of law but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant.” 66. The authority above shows that the Claimant was supposed to take reasonable steps to mitigate his loss during the period his motor vehicle was under repair. 67. The only explanation given by the Claimant for taking a lot of time before repairing his motor vehicle was that he lacked money to do the repairs. 68. Considering the total cost of repairing the Claimant’s motor vehicle, this court is of the considered view that had the Claimant been diligent enough and taken reasonable steps in mitigating his loss, he would have repaired his motor vehicle within ten (10) days from the date of the accident. 69. It is against this backdrop that this court makes an award of Kshs. 50,000/= for car hire charges. C. Other Costs 70. The receipts adduced by the Claimant proved on a balance of probabilities the claim for assessment fees of Kshs. 5,000/=, re-inspection fees of Kshs. 2,000/=, and motor vehicle records fees of Kshs. 550/ =. Those claims are thus awarded. Determination 71. Given the reasons above, this court is inclined to make the following final orders: a. The Third Party Notice is dismissed with costs of Kshs. 30,000/= to the Third Party b. The Respondent is 100% liable for the accident herein c. Judgment is entered against the Respondent for the sum of Kshs. 251,850/= d. The sum of Kshs. 251,850/= in (c) above will earn interest at court rate from the date of filing this claim till payment in full e. The Respondent will have the costs of this claim assessed at Kshs. 30,000/= 72. Judgment accordingly. 73. Certificate of costs and decree to issue forthwith. 74. File closed. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 06TH DAY OF NOVEMBER 2025 T. O. OMONO ADJUDICATOR In the presence of: C/A: Mr. Rioba Ms. Mwangi for the Claimant Ms. Mugambi for Respondent Ms. Nyakoa for the Third Party https://new.kenyalaw.org/akn/ke/judgment/scc/2025/54/eng@2025-11-06 8

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