Company v Maluki & 2 others (Claim E4585 of 2024) [2025] SCC 68 (KLR)

3. The Claimant blamed the occurrence of the accident on negligence by the driver of motor vehicle registration number KCT 193 P as set out in paragraph 5 of the Statement of Claim. 4. The 1st Respondent entered appearance and filed a Response to this claim, denying ownership of motor vehicle registration number KCT 193 P at the time of the accident. Consequently, the 1st Respondent joined the Third Party to this claim. the Third Party also denied ownership of motor vehicle registration number KCT 193 P at the time of the accident. 5. The 2nd Respondent never entered appearance nor filed a response to this claim, leading to an interlocutory judgment being entered against them. 6. On 28th October 2025, the Claimant withdrew their claim against the 1st Respondent. The efiect of that withdrawal of the claim against the 1st Respondent was that the 1st Respondent’s claim against the Third Party became moot. The Claimant also elected to have this matter determined under section 30 of the Act. Analysis & Determination 7. This court has duly considered all the pleadings, evidence, submissions, as well as authorities cited herein. 8. 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 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.’’ 9. 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. 10. The police abstract dated 16th September 2021 shows that the accident herein occurred and was reported at Parklands Police Station vide OB. Number 65/15/09/2021. The said police abstract also shows that at the time of the accident, the 2nd Respondent was the beneficial owner of motor vehicle registration number KCT 193 P. 11. In the absence of any evidence to controvert the contents of the said police abstract on the occurrence of the accident, and the 2nd Respondent’s beneficial ownership of motor vehicle registration number KCT 193 P, this court finds no reason to disbelieve the contents of the said police abstract (see section 38 of the Evidence Act). https://new.kenyalaw.org/akn/ke/judgment/scc/2025/68/eng@2025-11-13 2

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12. 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 policy number MCV/WE/POL/173097 13. The motor vehicle assessment report dated 22nd September 2021, and the re-inspection report dated 19th October 2021 also show that arising from the accident, the Claimant’s motor vehicle registration number KDB 964 D was damaged and thereafter repaired. 14. The foregoing shows that the issues that commend to this court for determination are liability and quantum. Liability 15. The Claimant’s evidence was that his motor vehicle was hit from behind by the 2nd Respondent’s motor vehicle. The motor vehicle assessment report on record confirmed as much. 16. Given that the Claimant’s motor vehicle was hit from behind by the 2nd Respondent’s motor vehicle, a prima facie case of negligence was established against the 2nd Respondent. 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 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’ 17. The 2nd Respondent did not place any evidence before this court to dislodge the prima facie case of negligence established against him by the Claimant. 18. The foregoing inclines this court to hold and find the 2nd Respondent 100% liable for the occurrence of the accident herein. Quantum 19. The Claimant pleaded that for Special Damages of Kshs. 147,400/= broken down as follows: a. Repair costs – Kshs. 130,000/= b. Tracing costs – Kshs. 17,400/= 20. The law in this jurisdiction is that Special Damages must be pleaded and strictly proved before they are awarded. 21. The receipts for specials filed herein by the Claimant proved that the Claimant’s insurer expended the Kshs. 147,400/= claimed above in making good the Claimant’s loss that arose from this accident. 22. The upshot of the above is that the Claimant pleaded and proved Special Damages of Kshs. 147,400/ = hence the same is awarded. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/68/eng@2025-11-13 3

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Disposition 23. In view of the reasons above, judgment is entered against the 2nd Respondent in the following terms: a. Liability 100% in favour of the Claimant b. Judgment in the sum of Kshs. 147,400/= c. The sum of Kshs. 147,400/= in (b) above will earn interest at court rates from the date of filing this claim till payment in full d. The Claimant will have the costs of this claim assessed at Kshs. 30,000/= 24. Given that the Claimant withdrew their claim against the 1st Respondent, the Claimant will pay the 1st Respondent and the 3rd Party costs of Kshs. 30,000/= each. 25. Certificate of costs and decree to issue forthwith. 26. Judgment accordingly. 27. File closed. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 13TH DAY OF NOVEMBER 2025 T. O. OMONO ADJUDICATOR In the presence of: Mr. Osino for the Claimant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/scc/2025/68/eng@2025-11-13 4

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