Maina v Kahiu & 3 others (Claim E3619 of 2024) [2025] SCC 67 (KLR)

5. The foregoing informed the filing of this claim for the Claimant’s insurer to recover the sum of Kshs. 155,092/= from the Respondents under the doctrine of subrogation. 6. The Respondents denied this claim through a Response to the Statement of Claim dated 20th September 2024 where the 1st Respondent averred that the accident herein was solely caused by negligence on the part of the Claimant’s authorized agent, driver, and/or employee as set out in paragraph 1 of the Response herein. 7. The 1st Respondent contested the extent of damage to the Claimant’s motor vehicle. She also averred that this claim was exaggerated and that the cost of repairing the Claimant’s motor vehicle could have been reduced reasonably. 8. The record shows that the 4th Respondent was struck out from this claim on 21st January 2025. On the same date, the Claimant’s counsel withdrew the claim against the 2nd and the 3rd Respondent. 9. The parties herein elected to litigate this claim through viva voce evidence. A summary of the evidence placed before this court is set out below. Claimant’s Case 10. CW1 Sospeter Gachanja Kinuthia a legal oficer at APA Insurance Company Limited adopted adopted his witness statement herein as his evidence in chief. He produced the documents in the Claimant’s list of documents dated 24th May 2024 as exhibits. 11. He blamed the driver of motor vehicle registration number KBR 420 L for causing the accident herein based on the contents of the police abstract herein. 12. In cross-examination, he conceded that he was not at the scene of the accident and that his evidence on the circumstances of the accident herein was based on the documents supplied to the insurer by the Claimant. Respondent’s Case 13. RW1 Dennis Kahiu Njenga was the driver of motor vehicle registration number KBR 420 L at the time of the accident. He added that the 1st Respondent was his mother who is the registered owner of motor vehicle registration number KBR 420 L at the time of the accident herein. He adopted his witness statement herein as his evidence in chief. 14. He testified that on the date of the accident along North Airport road while driving behind the Claimant’s motor vehicle, the Claimant’s motor vehicle suddenly applied emergency brakes and swerved to the right in a bid to avoid a pothole. He applied emergency brakes to avoid hitting the Claimant’s motor vehicle, and also swerved to the right only to hit the rear right hand side of the Claimant’s motor vehicle. He added that police oficers visited the scene. 15. He blamed the Claimant’s driver for causing the accident. Analysis & Determination 16. This court has duly considered all the pleadings, evidence, submissions, and authorities placed before it. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 2

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17. There is no contest that this claim is grounded on the insurance principle of subrogation. In Richard v Njeru (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR), the court rendered itself thus on the principle of subrogation: The principle of subrogation applies where there is a contract of insurance. It takes efiect when the insurer settles the insured’s claim, whereby it sets out to diminish the loss sufiered by its insured by seeking compensation from the party who caused the loss. The insurer is put in the position of the insured and is entitled to claim compensation from the 3rd party tortfeasor and, the compensation is not more than what has been paid to the insured. The doctrine of subrogation was defined by the Court in the case of Egypt Air Corporation v Sufish International Food Processors (U) Ltd and Another [1999] 1 EA 69 as hereunder“The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity and gains its operative force from payment under that contract; the essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.” 18. The authority above shows that for a Claimant to prove a claim under the principle of subrogation, that Claimant must proved on a balance of probabilities that there exists a contract of insurance between that Claimant and its insurer, that Claimant sufiered loss which their insurer made good, and that the loss sufiered by the Claimant/insured was caused by a third party/respondent who ought to compensate the insurer for the money used in making good the Claimant’s loss. 19. The documents on record show that the Claimant’s motor vehicle was insured by APA Insurance Company Limited vide insurance policy number 10/700/0095507 that was running from 09th June 2021 to 08th June 2022. The foregoing shows as at 25th July 2021, the Claimant had a valid insurance cover from APA Insurance Company Limited. 20. There is also no contest on the occurrence of the accident herein and the ownership of the motor vehicles that were involved in the accident herein. 21. Further, it is not disputed that RW1 was the 1st Respondent’s agent and/or driver at the time of the accident herein. That being the case, in the event this court finds RW1 negligent for the occurrence of the accident herein, the 1st Respondent will be vicariously liable for RW1’s negligence. 22. The only point of departure between the parties herein is on who was to blame for the accident, and the extent of damage/loss that the Claimant’s insurer sufiered as a result of the accident herein. 23. 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 24. CW1 relied on the police abstract herein and the Motor Accident Report Form dated 27th July 2021 to blame the 1st Respondent for the occurrence of the accident herein. 25. The 1st Respondent did not contest the production of that Motor Accident Report Form dated 27th July 2021 and the police abstract herein as exhibits. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 3

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26. The 1st Respondent submitted that in the absence of evidence by the Claimant’s driver on the circumstances under which the accident herein occurred, and the evidence of the accident’s investigating oficer, the Claimant failed to prove on a balance of probabilities the particulars of negligence that she attributed to the Respondent and/or her driver or agent. 27. This court agrees with the 1st Respondent to the extent that the Claimant’s driver and the accident’s investigating oficer did not testify before this court on the circumstances under which the accident herein occurred. 28. However, a reading of the said police abstract herein shows that the 1st Respondent’s motor vehicle was blamed for the occurrence of this accident. Further, the Motor Accident Report Form dated 27th July 2021 contains a narration by the Claimant and her driver on the circumstances under which the accident occurred. Their version of events was that the 1st Respondent’s motor vehicle hit their motor vehicle from behind when the 1st Respondent’s motor vehicle unsuccessfully attempted to overtake their motor vehicle. 29. The foregoing shows that there is evidence on record by the Claimant and her driver on the circumstances under which the accident herein occurred. 30. This court agrees with the 1st Respondent’s submission that the mere fact that the police abstract herein blamed the 1st Respondent’s motor vehicle for the accident is not conclusive proof of negligence on the part of the 1st Respondent. Such an entry is only of persuasive value. That entry can only be binding on this court after the accident’s investigating oficer’s evidence on what informed such an entry remains unshaken after cross-examination. 31. In this case the investigating oficer did not testify on the veracity of that entry thus that entry in the police abstract on the blameworthiness of the 1st Respondent’s motor vehicle can not be binding on this court. 32. Be that as it may, the evidence placed before this court shows that the Claimant’s motor vehicle was hit from behind by the 1st Respondent’s motor vehicle. That shows that a prima facie case of negligence was established against the 1st 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. 33. 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 https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 4

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34. It is also worth noting that the Claimant pleaded the doctrine of res ipsa loquitor in support of their claim. In Esther Nduta Mwangi & another v Hussein Dairy Transporters Limited Machakos HCCC No 46 of 2007, Lenaola J (as he then was) held that: “ ...The plaintifi, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including police abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitor was pleaded, the burden of proof was shifted to the defendant to disprove the particulars of negligence attributed to him.” 35. A reading of the authorities above shows that the Claimant having adduced evidence proving on a balance of probabilities that the 1st Respondent’s motor vehicle hit her motor vehicle from behind, and having pleaded the doctrine of res ipsa loquitor, the burden of proof shifted to the 1st Respondent to disprove the particulars of negligence attributed to her. 36. RW1 testified in a bid to disprove the particulars of negligence attributed to him and the 1st Respondent by the Claimant. He testified that the accident occurred when the Claimant’s motor vehicle suddenly applied emergency brakes and swerved to the right in a bid to avoid a pothole. 37. However, RW1 did not state the distance between the Claimant’s motor vehicle and the 1st Respondent’s motor vehicle before the Claimant’s motor vehicle reportedly applied emergency brakes. 38. This court takes judicial notice that a motor vehicle being driven on a road is required to keep a safe distance from another motor vehicle. The safe distance helps a driver driving a motor vehicle behind another motor vehicle to take reasonable steps of avoiding a collision with the motor vehicle ahead in the event the motor vehicle ahead stops abruptly. 39. In the absence of RW1’s evidence on the distance between the 1st Respondent’s motor vehicle and the Claimant’s motor vehicle at the time of the accident herein, the 1st Respondent can not be said to have not contributed to the occurrence of the accident herein. 40. The Claimant on the other hand did not lead any evidence to disprove the 1st Respondent’s evidence that the accident herein was caused when the Claimant’s suddenly applied emergency brakes and swerved to the right in a bid to avoid a pothole. 41. This court is of the considered view that given that the Claimant’s driver and the 1st Respondent’s driver were blaming each other for the occurrence of the accident herein, only the accident’s investigating oficer’s testimony and the scene’s sketch map could give this court adequate evidence on how to apportion liability in this matter. This is a clear case of the Claimant’s word against the 1st Respondent’s word on the circumstances under which the accident herein occurred. 42. When confronted with such a situation where evidence on record is barely adequate to apportion liability, Musyoka J in James Vulimu Mbaja v Anvi Emporium Limited & another [2021] KEHC 13367 (KLR) stated doth: The appeal really turns on only one ground, liability. The trial court was of the view, from the material placed before it, that it was unable to determine, who, between the two sides, was to blame for the accident, and, therefore, found the two to be equally liable, and apportioned liability at 50:50. The position taken by the trial court is the law on the subject. It is trite that where there is no concrete evidence to establish who is to blame as between two drivers, both should be held equally liable. See Isaac Onyango Okumu v James Ayere & another [2019] eKLR, Michael Hubert Kloss & another v David Seroney & 5 others [2009] https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 5

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eKLR, Salmin Mbarak Awadhi v Emma Nthoki Mutwota [2017] eKLR, among others. Liability between them should be apportioned on the basis of 50:50. 43. Given the reasons above and guided by the authority above, this court apportions liability in the ratio of 50%: 50% between the Claimant and the 1st Respondent. Quantum 44. 45. The Claimant pleaded for an award for Special Damages of Kshs. 155,092/= broken down as follows: a. Garage repair costs - Kshs. 98,832/= b. Car - hire fees - Kshs. 25,000/= c. Assessment fees – Kshs. 6,380/= d. Re-inspection fees - Kshs. 2,320/= e. Tracing charges - Kshs. 22,010/= f. Motor vehicle inspection - 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.” 46. This court will proceed to determine whether the Claimant strictly proved the Special Damages pleaded in the Statement of Claim herein. 47. The payment vouchers and the receipts on record whose production was not contested by the 1st Respondent proved on a balance of probabilities that arising from the accident herein, the Claimant’s insurer paid assessment fees of Kshs. 6,380/=, re-inspection fees of Kshs. 2,320/=, tracing charges of Kshs. 22,010/=, and motor vehicle inspection fees of Kshs. 550/=. 48. The 1st Respondent took issue with the claims for garage repair costs and car hire charges. 49. On garage repair costs, the Claimant pleaded that the insurer paid Kshs. 98,832/= towards the said repair. The Claimant relied on the Assessment Report dated 27th July 2021 to prove that her motor vehicle was damaged as a result of the accident herein. The said report set out the damage to the Claimant’s motor vehicle as pleaded in the Claimant’s Statement of Claim. 50. The 1st Respondent submitted that since the Assessment Report dated 27th July 2021 contained notes to the efiect that the Claimant’s motor vehicle had previous repairs to the tail gate, the Claimant’s insurer could not claim for the costs of repairing the tail gate. This court takes the view that the notes referred to by the 1st Respondent do not in any way show that at the time of the accident herein the Claimant’s motor vehicle had unrepaired pre-accident damage that was repaired by the Claimant’s insurer after the occurrence of the accident herein. Those notes actually show that the pre-accident damage had already been repaired before the occurrence of the accident herein. Further, those notes do not rule out the possibility of the said tail light being damaged during the accident herein. Therefore, https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 6

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the 1st Respondent’s submission that the Claimant’s insurer’s claim for repair costs includes costs for repairing pre-accident damages lacks any basis. 51. The repair quotation dated 29th July 2021 from Integrated Motor Assessors Limited shows that the Claimant’s motor vehicle was to be repaired at the cost of Kshs. 102,312/=. However, the Claimant’s insurer’s payment voucher dated 21st April 2022 shows that the Claimant’s insurer paid Kshs. 98,832/ = for the repair of the Claimant’s motor vehicle. 52. In the circumstances, this court makes an award of Kshs. 98,832/= for the repair costs. 53. Turning to the claim for car hire charges of Kshs. 25,000/=, the Claimant placed before this court a car hire contract between her and Starcar Rental and Recovery Limited dated 03rd August 2021, and invoice dated 16th August 2021, and a payment voucher by her insurer dated 10th September 2021 to prove that her insurer paid Kshs. 25,000/= for the hire of a motor vehicle for ten day during the period that her motor vehicle was under repair. 54. The 1st Respondent on the other hand submitted that this court ought not to award the claim for car hire charges since the cost of hiring a car can only be borne if it is in the insurance policy. 55. The 1st Respondent’s challenge to the claim for car hire charges was dislodged by CW1’s testimony during cross - examination when he testifed that the Claimant was entitled car hire per the policy schedule. 56. Whereas, CW1 did not show the specific part of the policy schedule that provided for car hire, this court takes the considered view that hiring of a motor vehicle for the Claimant during the period that the Claimant’s motor vehicle was under repair was part of the Claimant’s insurer’s duty of putting the Claimant in the position she was in prior to the occurrence of the accident herein. Therefore, the Claimant’s insurer is entitled to car hire fees expended in putting the Claimant to the position she was before the occurrence of the accident herein. 57. A reading of the Assessment Report dated 27th July 2021 shows that repairs to the Claimant’s motor vehicle were to be completed within two days. This means that the Claimant’s insurer can only claim for car hire charges for two days. 58. It is against this backdrop that this court makes an award of Kshs. 5,000/= for car hire charges. Disposition 59. The upshot of the foregoing is that judgment is entered against the 1st Respondent in the following terms:a. Liability 50% b. Quantum i. Garage repair costs - Kshs. 98,832/= ii. Car - hire fees - Kshs. 5,000/= iii. Assessment fees – Kshs. 6,380/= iv. Re-inspection fees - Kshs. 2,320/= v. Tracing charges - Kshs. 22,010/= vi. Motor vehicle inspection - Kshs. 550/= https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 7

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Grand Award - Kshs. 135,092/= Less 50% Net Award - Kshs. 67,546/= 60. The sum of Kshs. 67,546/= awarded above being a Special Damage will earn interest at court rate from the date of filing this claim till payment in full. 61. The Claimant will have the costs of this claim assessed at Kshs. 30,000/=. 62. Certificate of costs and decree to issue forthwith. 63. Judgment accordingly. 64. File closed. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 23RD DAY OF OCTOBER 2025 T. O. OMONO ADJUDICATOR In the presence of: C/A: Mr. Rioba Ms. Kathike for the Claimant Mr. Maina for the 1st Respondent https://new.kenyalaw.org/akn/ke/judgment/scc/2025/67/eng@2025-10-23 8

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