Shah v Omondi (Claim E5764 of 2024) [2025] SCC 63 (KLR)

The damage to the Claimant’s motor vehicle was reportedly repaired by the Claimant’s insurer at a cost of Kshs. 814,667/= hence this claim. The Respondent entered appearance and filed a Response to the Statement of Claim dated 10th January 2025 admitting the occurrence of the accident. He denied being at fault for the occurrence of the accident herein. He added that he had agreed with the Claimant that both of them were equally to blame for the accident. In the circumstances, the Respondent urged this court to dismiss this claim with costs. Given the divergent positions taken by the Claimant and the Respondent on the circumstances under which the accident herein occurred, this matter proceeded to hearing. A summary of the evidence adduced by the parties is set out below. Claimant’s Case CW1 No. 83822 PC Eunice Wanjiru Ngunjiri of Parklands Traffic Base produced the police abstract dated 31st August 2024 (Cexh.1) on behalf of the accident’s investigating officer one Sergeant Ruth, who was reportedly away on leave. On cross-examination, she conceded that she was neither at the scene at the time of the accident nor visited the scene after the accident. CW2 Soham Shah, the claimant herein, adopted his witness statement dated 14th November 2024 as his evidence in chief. He produced his motor vehicle’s logbook, driving license, dashcam video, and the accompanying certificate of electronic evidence as exhibits. On cross-examination, he conceded that the documentation from Mayfair Insurance Company Limited indicated that the status of payment of the premiums showed that the premiums were unpaid.

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He recalled that at the time of the accident, the Respondent’s car was being driven on the left-most lane ahead of him as he drove on the right side of that motor vehicle. He added that at some point, he was driving side by side with the Respondent’s motor vehicle when the Respondent’s motor vehicle hit his rear bumper. CW3 Lawrence Kegicha Momanyi, a Senior Legal Officer at Mayfair Insurance Company Limited adopted his witnessed statement dated 14 th November 2024 as his evidence in chief. He produced the documents in support of the Claimant’s case that Mayfair Insurance Company Limited made good the Claimant’s loss, hence they were entitled to indemnity from the Respondent. During re-examination, he reiterated that Mayfair Insurance Company Limited only repairs their insured’s motor vehicles where an insurer has fully paid the premiums payable under the insurance cover. He added that any damage to the Claimant’s motor vehicle not arising from the accident herein was not catered for by the Claimant’s insurer. CW4 John Waweru Njoroge a motor assessor at Oriswatch Auto Assessor, produced the Claimant’s motor vehicle registration number KCX 482 Z assessment report dated 05th September 2024, an invoice dated 06th September 2024, and a payment voucher request dated 11 th November 2024. Respondent’s Case RW1 Calvin Otieno Omondi adopted his witness statement herein as his evidence in chief. He testified that after the occurrence of the accident herein, he agreed in principle with the Claimant that each one of them was to pursue their respective insurers for the repair of their respective motor vehicles.

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He produced the documents listed in his list of documents as exhibits save for the police abstract. His testimony was that he was driving on the outermost lane, planning to exit towards Redhill when the accident occurred. He denied ramming into the Claimant’s motor vehicle. RW2 No. 86729 PC Abdi Hussein of Gigiri Police Station produced the police abstract dated 02nd September 2024 as an exhibit. He stated that he was the accident’s current investigating officer after taking over the matter from PC Mwai. He blamed the Claimant’s driver for the occurrence of the accident. On cross-examination, he admitted that he became aware of the Claimant’s motor vehicle when he watched the dashcam video adduced by the Claimant. ANALYSIS & DETERMINATION This court has duly considered all the pleadings, evidence, submissions, as well as authorities relied upon by the parties herein. 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 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

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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.’’ A reading of the authority above shows that for a Claimant to succeed in a claim 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 that the accident herein occurred. Further, there is no contest on the ownership of the motor vehicles that were involved in the accident herein. The evidence on record also shows that the Claimant’s motor vehicle was at the time of the accident insured by the Claimant’s insurer vide police number 01/COMP/01/0700/42172/2023. Additionally, it is common ground that, arising from the accident herein, the Claimant’s motor vehicle was damaged and repaired. The dispute between the parties herein is on who was to blame for the occurrence of the accident herein and whether the Claimant’s insurer made good the Claimant’s loss by paying for the repair of the Claimant’s motor vehicle. It is against this backdrop that this court finds and holds that the only issues that this court has been called upon to determine are liability and quantum. Liability

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The Claimant’s driver one Soham Shah took the position that the accident herein occurred when the Respondent negligently and recklessly drove his motor vehicle registration number KCX 482 Z when it served unto his lane thereby damaging the Claimant’s motor vehicle. On the other hand, the Respondent testified that on the date of the accident, while preparing to exit onto Redhill road towards Gachie, the Claimant’s motor vehicle registration number KCG 999 X that was ahead of him on his left-hand side suddenly stopped and attempted to change lanes when the accident occurred. It is noteworthy that the police officers (CW1 and RW2) who were called by the Claimant and the Respondent, respectively, to corroborate their version of events on the circumstances under which the accident herein, admitted that they never visited the scene of the accident to speak to the circumstances under which this accident occurred. Interestingly, whereas RW2 sought to blame the Claimant’s driver for the occurrence of the accident herein, the police abstract he placed before this court had an entry blaming the Respondent for the occurrence of this accident. The foregoing shows that CW2 and RW1's oral testimony on the circumstances under which this accident occurred was of very little evidential value. The Respondent’s motor vehicle assessment report dated 06 th September 2024 shows that the damage to the Respondent’s motor vehicle was caused by the Respondent’s motor vehicle losing control and running into obstructions. The contents of that report contradict the Respondent’s version of events blaming the Claimant’s driver for the damage to the Respondent’s motor vehicle.

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Be that as it may, the dashcam video adduced by the Claimant shows the Respondent’s motor vehicle being driven on the outermost lane on the extreme left headed towards a roundabout. The Claimant’s motor vehicle on the other hand is seen being driven behind the Respondent’s motor vehicle in the opposite lane headed in the same direction. The Claimant’s motor vehicle is also seen being driven straight through the roundabout only to stop a few meters ahead in its lane. That video clearly shows that the Claimant’s vehicle did not veer unto the outermost left lane as alleged by the Respondent. Instead, the video shows that the Claimant’s motor vehicle was way ahead of the Respondent’s motor vehicle on its lane when it stopped after a hit from behind by the Respondent’s motor vehicle as the Respondent attempted to join the lane that the claimant’s motor vehicle was being driven on. The damage to the left rear side of the Claimant’s motor vehicle and the damage to the front right side of the Respondent’s motor vehicle are consistent with the contents of the dashcam video on record and the Claimant’s version of events on how the accident herein occurred. The said video discredits the Respondent’s version of events on how the accident herein occurred. In the circumstances this court finds and holds that the accident herein occurred when the Respondent’s motor vehicle hit the Claimant’s motor vehicle from behind while trying to join the lane that the Claimant’s motor vehicle was being driven on. It is also not lost to this court that the police abstracts placed before this court blamed the Respondent 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:-

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“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.” A reading of the authority above shows 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, this court having found and held above that the Claimant’s motor vehicle was hit from behind by the Respondent’s motor vehicle, a prima facie case of negligence was established against the Respondents. This position is buttressed 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

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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 Respondent’s evidence on the circumstances under which the accident herein occurred was displaced by CW1’s testimony, the dashcam video, and the entries in the police abstract on record. This shows that the Respondent failed to discharge the burden placed on him to prove on a balance of probabilities that he did not hit the Claimant’s vehicle from behind out of his own negligence. The foregoing inclines this court to hold and find the Respondent 100% liable for the occurrence of the accident herein. Quantum The Claimant pleaded that for Special Damages of Kshs. 814,667/= broken down as follows: (a) Repair – Kshs. 782,437/= (b)Assessment– Kshs. 6,380/= (c) Re-Inspection – Kshs. 2,900/= (d)Tracing fees – Kshs. 22,950/= It is well settled in this jurisdiction that Special Damages must be pleaded and strictly proved before they are awarded. Repair The Claimant’s Motor Vehicle Repairs Estimate Report dated 05 th September 2024 shows that the Claimant’s motor vehicle was to be repaired at a cost of Kshs. 782,437.86/=. Whereas the Respondent took issue with the inclusion of the damage to the Claimant’s motor vehicle not consistent with the accident,

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it should be noted that the cost of those ‘non consistent’ damages repair was not included in the computation of the total repair costs of Kshs. 782,437.86/=. The Satisfaction Note dated 27th September 2024 shows that the repairs above were conducted. The cheque dated 11th November 2024 drawn by the Claimant’s insurer in favour of Inchape Kenya Limited and the Miscellaneous Disbursement Voucher dated 11th November 2024 shows that the Claimant’s insurer paid Kshs. 768,947/= for the repairs. Assessment The payment voucher request dated 10th September 2024 and the Fee Note No. 10279 dated 06th September 2024 relied upon by the Claimant for an award of Kshs. 6,380/= are mere requests for payment, not proof of payment. Therefore, the claim for assessment fees of Kshs. 6,380/= is dismissed for want of proof. Re-Inspection The Payment Voucher Request dated 30 th September 2024, the Fee Note dated 27th September 2024 from Gibeon Tech Loss Assessors & Valuers, and the ETR receipt attached to the said fee note prove that the Claimant’s insurer expended Kshs. 2,900/= on re-inspection fees. Tracing Fees The Claimant sought to rely on an invoice dated 30 th October 2024 from Factual Facts Loss Assessors and an eTiMS invoice from KRA dated 31 st October 2024 to claim the sum of Kshs. 22,950/= for tracing fees.

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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 invoices the Claimant relied upon under this claim were not endorsed with the word “Paid”. Therefore, the said invoice cannot be used to claim an indemnity of tracing fees of Kshs. 22,950/= from the Respondent. The upshot of the foregoing is that the Claimant proved on a balance of probabilities that his insurer is entitled to reimbursement/indemnity of the following costs from the Respondent:a) Repair costs - Kshs. 768,947/= b) Re-inspection fess - Kshs. 2,900/= Total – Kshs. 771,847/= DISPOSITION In view of the reasons above, this court makes the following orders: a) Liability 100% in favour of the Claimant b) Judgment is entered against the Respondent for Kshs. 771,847/=

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c) The sum of Kshs. 771,847/= 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. 40,000/= Certificate of costs and decree to issue forthwith. Judgment accordingly. In view of the fact that this judgment has been delivered through the CTS platform in the absence of the parties and their respective counsel, thirty (30) days stay of execution is granted. Delivered via the CTS platform at Bungoma this 09 th day of October 2025 T.O. OMONO ADJUDICATOR

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