Gatuto v Mworia & another (Claim E3980 of 2024) [2025] SCC 69 (KLR)

recklessly driven by its driver thereby hitting motor vehicle registration number KDA 122 J. The particulars of negligence attributed to the Respondents were pleaded in paragraph 4 of the Statement of Claim. Arising from the accident, the Claimant’s motor vehicle was reportedly damaged hence this claim. The Respondents entered appearance and filed a Response to the Claim dated 06th November 2024 praying that this claim be dismissed with costs since the accident herein was caused by the Claimant’s negligence. On 19th June 2025, parties recorded a consent to the effect that this matter be determined by way of documents per section 30 of the Small Claims Court Act. ISSUES FOR DETERMINATION This court has duly considered the pleadings, as well as the documents placed before this court by the parties herein. It is common ground that the accident herein occurred. It is also common ground that motor vehicle registration number KDA 122 J belonged to the claimant, and that motor vehicle registration number KC3 551 H belonged to the Respondents at the time of the accident. For the reasons above, the only issues up for determination are liability and quantum. Liability The witness statement by Erick Gicheha Wahinya who was the driver of motor vehicle registration number KDA 122 J shows that the said motor vehicle was hit from behind by motor vehicle registration number KCE 551 H. The Assessment report dated 04 th May 2024 shows that motor vehicle registration number KDA 122 J was damaged from behind. Kitale SCC Claim. No. E036 of 2024 Page 2 of 10 Judgment

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Erick Gicheha’s account on how the accident herein occurred was corroborated by the entries in the police abstract dated 09 th August 2024 where the outcome of investigations into the accident was that motor vehicle registration number KCE 551 H was blamed for the occurrence of the accident. This court is minded that under section 38 of the Evidence Act, there is a rebuttable presumption of truth of the entries entered in a public document by a public official. Therefore, in the absence of evidence to controvert the contents in the police abstract herein, this court finds no reason to disbelieve the contents of that police abstract. In any event, the Respondents did not file any witness statements. In the absence of witness statements, the averments in the Respondents’ Response to the Claim remain mere allegations that this court can not rely on in determining this matter. This position taken by this court is buttressed by the holding in CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1) [1978] KLR 103; [1976-80] 1 KLR 835, where Madan, J (as he then was) expressed himself as hereunder: “Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.” Kitale SCC Claim. No. E036 of 2024 Page 3 of 10 Judgment

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Similarly, in Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 appreciated that: “Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail”. Finally, in Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 it was stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. The foregoing shows that the Claimant’s version of events on how the accident occurred remained uncontroverted. In the circumstances, this court finds no reason to disbelieve the Claimant’s version of events on how the accident herein occurred; hence, this court finds and holds the Respondents jointly and severally 100% liable for the occurrence of the accident herein. Quantum of Damages (a) General damages for loss of earnings The Claimant pleaded for an award of general damages for loss of earnings. He also pleaded for an award for loss of use. Njuguna J in Nyaga v Attorney General (On Behalf of the Ministry of Environment, Water and Natural Resources) (Civil Appeal E019 of 2023) [2023] KEHC 26484 Kitale SCC Claim. No. E036 of 2024 Page 4 of 10 Judgment

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(KLR) (13 December 2023) (Judgment), while defining what a claim for loss of use constitutes, rendered herself thus: Loss of use (loss of user) falls under general damages as stated by the court in the case of Jackson Mwabili v Peterson Mateli [2020] eKLR thus: “.... loss of user of profit is in the nature of general damages and is proved on a balance of probabilities. The decisions also relate to commercial vehicles which were damaged and as a result, the owners claimed loss of user. The decisions further agree that the owner of a damaged vehicle is entitled to compensation and courts have been liberal when quantifying damages for loss of user.” Guided by the authority above, it follows that a claim for general damages for loss of earnings is almost similar to a claim for loss of use. This court is of the considered view that a claim for general damages for loss of earning can only be sustained together with a claim for loss of earnings where as a result of an accident an income generating motor vehicle is declared a write off with no possibility of a claimant continuing with their income generating business after compensation for the written off motor vehicle. That is not the case in this matter. The circumstances of this case show that if this court awards damages under both heads, that will amount to double compensation. Given the above, this court dismisses the claim for general damages for loss of earnings. This court will instead consider whether the Claimant proved the claim for loss of use to the required standards. (b) Special Damages of Kshs. 329,822/= Kitale SCC Claim. No. E036 of 2024 Page 5 of 10 Judgment

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The Claimant pleaded for Special Damages of Kshs. 329,822/= as set out in paragraph 5 of the Statement of Claim. The law in this jurisdiction is that special damages must be pleaded and strictly proved. This court will proceed to determine whether the Claimant strictly proved the Special Damages pleaded in the Statement of Claim herein. (i) Motor vehicle search and police abstract costs Whereas the Claimant pleaded for an award of Kshs. 650/= for motor vehicle search and Kshs. 500/= for the police abstract, the claimant did not produce receipts to prove those claims, therefore, the claims for Kshs. 650/= and Kshs. 500/= are dismissed for want of proof. (ii) Motor vehicle repairs The Assessor’s Report dated 04th May 2024 from Enigma Assessors shows that the Claimant’s motor vehicle was to be repaired at a cost of Kshs. 112,172/=. In Nkuene Dairy Farmers Co-operative Society & Anor v Ngacha Ndeiya (2010) eKLR, the Court of Appeal held-: “In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty.” Likewise, the Court of Appeal in David Bagine v Martin Bundi (1996) eKLR, in asserting the probative value of an assessor’s report reiterated that: Kitale SCC Claim. No. E036 of 2024 Page 6 of 10 Judgment

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“The Assessor’s report was sufficient proof and the failure to provide receipts for any repairs done was not fatal to the respondent’s claim” Guided by the authorities above, it follows that the Motor Vehicle Assessment Report herein, whose contents were not controverted by the Respondents, proved to the required standards that the Claimant was to repair his motor vehicle at Kshs. 112,172/=. (iii) Loss of use The Claimant prayed for an award of Kshs. 210,000/= under this head. He submitted that his motor vehicle used to earn Kshs. 10,000/= income per day, and that the said motor vehicle could not earn him income for twentyone (21) days. It was the claimant’s case that it took 21 days for his motor vehicle to be repaired since the same was held at the police station for 7 days pending inspection. A reading of the Assessor’s report does not indicate the duration within which the repairs were to be undertaken. The Claimant did not lead evidence to prove on a balance of probabilities that his motor vehicle was detained at the police station for seven (7) days pending inspection. In a claim for loss of use, the Plaintiff is expected to demonstrate how he mitigated his loss. 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 stated thus:“ It is the duty of the plaintiff 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 plaintiff realizes that an interest of his has been injured by a breach of contract or a tort, and Kitale SCC Claim. No. E036 of 2024 Page 7 of 10 Judgment

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he is then bound to act, as best he may, not only in his own interests but also in those of the defendant. The plaintiff 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 is reasonable for a plaintiff 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.” This court is of the considered view that in the absence of an explanation by the Claimant on the reasonable steps he took to mitigate his loss, this court must exercise its discretion to make a reasonable award for loss of user. Considering the total cost of the repairs, this court is of the considered view that had the Claimant been diligent enough in mitigating his loss, he would have repaired his motor vehicle within at most fourteen (14) days. The claimant placed before this court a daily worksheet from ROG Travellers SACCO showing that the Claimant’s vehicle used to earn an average daily income of Kshs. 10,000/=. The award under this head will work out as follows: Kshs. 10,000/= x 14 = Kshs. 140,000/=. (iv) Motor vehicle Assessment booking The Claimant pleaded for an award of Kshs. 6,500/= for assessment booking. He produced a receipt from Enigma Assessors to prove the same; this court makes an award of Kshs. 6,500/=. (c)Damages for depreciation of the value of the motor vehicle Kitale SCC Claim. No. E036 of 2024 Page 8 of 10 Judgment

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There is no re-inspection report on record to prove that the value of the claimant’s motor vehicle depreciated after the repairs proposed by the motor vehicle assessor. A Motor vehicle Pre-Accident Valuation Report and a Motor vehicle Post– Repair Valuation Report would have assisted this court in making an award under this head. Those reports were not placed before this court. In the circumstances, the claim for damages for depreciation of the value of the claimant’s motor vehicle is dismissed for want of proof. DISPOSITION Given the foregoing, judgment is entered against the Respondents jointly and severally for:a) Liability – 100% b) Motor vehicle repairs – Kshs. 112,172/= c) Loss of use – Kshs. 140,000/= d) Assessment costs – Kshs. 6,500/= Total Award – Kshs. 258,672/= The award above will earn interest at court rate from the date of filing this claim till payment in full. The Claimant will have the costs of this claim assessed per section 33 of the Act at Kshs. 30,000/=. Certificate of cost and decree to issue forthwith upon payment of requisite court fees, if any. File closed. Judgment accordingly. Kitale SCC Claim. No. E036 of 2024 Page 9 of 10 Judgment

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Read, signed, and delivered in open Court at Bungoma this 10th day of July 2025 T.O. OMONO Adjudicator In the presence of: Odhiambo h/b for Masenge for the Claimant C/A Albert Kitale SCC Claim. No. E036 of 2024 Page 10 of 10 Judgment

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