Demax Investments Ltd v Oasis Generation & 2 others (Claim E3569 of 2024) [2025] SCC 73 (KLR)

Arising from the accident herein, the Claimant’s motor vehicle was damaged hence this claim. The 1st and 2nd Respondent entered appearance. The 3rd Respondent did not enter appearance. The 2nd Respondent filed a Response to the claim dated 11th December 2024 denying ownership of motor vehicle registration number KCL 199 L. The 2nd Respondent further averred that if the accident herein occurred then the same was caused by the Claimant’s negligence. The 2nd Respondent urged this court to dismiss the claim against them with costs. On 24th June 2025, the Claimant and the 2nd Respondent 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, the documents, written submissions, as well as the authorities relied upon by the respective parties. It is common ground that the accident herein occurred. The evidence on record shows that motor vehicle registration number KCF 912 H belonged to the claimant, and that motor vehicle registration number KCL 199 L belonged to the 1st Respondent, and the same was being driven by the 3 rd Respondent at the time of the accident. The Claimant did not place any evidence before this court to show that the 2nd Respondent was the beneficial owner of motor vehicle registration number KCL 199 L at the time of the accident herein. Further, the Claimant did not lead any evidence to show how the 2 nd Respondent caused or contributed to the occurrence of the accident herein. Given the above, this court finds and holds that the 2 nd Respondent was wrongly sued by the Claimant. Kitale SCC Claim. No. E036 of 2024 Page 2 of 8 Judgment

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For the reasons above, the issues that commend to this court for determination are liability between the claimant and the 1st and 3rd Respondents, as well as quantum. Liability The witness statement by Samuel Kiguru Ndiba who was the driver of motor vehicle registration number KCF 912 H blamed the driver of motor vehicle registration number KCL 199 L (3rd Respondent) for the occurrence of the accident herein. The 1st Respondent did not place any evidence before this court disputing the fact that the 3rd Respondent was driving their motor vehicle at the time of the accident for their benefit. That being the case, it follows that where this court holds the 3rd Respondent to be responsible for the occurrence of the accident herein, the 1st Respondent will be vicariously liable for the 3 rd Respondent’s actions. Samuel Kiguru Ndiba’s account on how the accident herein occurred was corroborated by the entries in the police abstract herein (Cexh.1) wherein the outcome of investigations into the accident herein was that the driver motor vehicle registration number KCL 199 L was blamed for the occurrence of the accident. By dint of 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. It is against this backdrop that this court finds and holds that the Claimant’s version of events on how the accident occurred remained uncontroverted; hence, the 1st and Respondents are jointly and severally 100% liable for the occurrence of the accident herein. Kitale SCC Claim. No. E036 of 2024 Page 3 of 8 Judgment

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Quantum of Damages The Claimant pleaded for an award of the following Special Damages:a) Repair costs – Kshs. 235,132/= b) Towing fees – Kshs. 15,000/= c) Loss of user (Kshs. 3,500/= X 30) – Kshs. 105,000/= d) Assessment fees – Kshs. 10,000/= e) Copy of records – Kshs. 550/= 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. The Claimant placed before this court receipts and an Assessment Report from Primedots Auto Valuers to prove the pleaded Special Damages for Repair costs of Kshs. 235,132/=, towing fees of Kshs. 15,000/=, Assessment fees for Kshs. 10,000/=, and a Copy of records for Kshs. 550/=. In the circumstances, this court holds and finds that the Claimant pleaded and proved Special Damages for Repair costs of Kshs. 235,132/=, towing fees of Kshs. 15,000/=, Assessment fees for Kshs. 10,000/=, and a Copy of records for Kshs. 550/=. Loss of user The Claimant prayed for an award of Kshs. 105,000/= under this head calculated at the rate of Kshs. 3,500/= for thirty (30) days. Kitale SCC Claim. No. E036 of 2024 Page 4 of 8 Judgment

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The Claimant submitted that it took 30 days to repair his motor vehicle due to the unavailability of spare parts and lack of funds. It is noteworthy that the Claimant did not present any evidence to show that it took 30 days for his motor vehicle to be repaired. The 30-day duration of repairing the Claimant’s motor vehicle was introduced in the Claimant’s submissions. It is trite law that submissions are not evidence. In the words of Magare J in Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling):‘Submissions are neither pleading nor evidence. Beautiful pleadings are akin to watching warm fire in television. It will not remove any morning chilly weather. The court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR: “Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” In the absence of evidence to support the Claimant’s submission that it took 30 days to repair the Claimant’s motor vehicle, this court will disregard the 30 days period suggested by the Claimant in computing the award under this head. Kitale SCC Claim. No. E036 of 2024 Page 5 of 8 Judgment

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A reading of the Primedots Auto Valuers and Assessrors Report (Cexh.6) shows that the Claimant’s motor vehicle was to be repaired for a period of 14 days subject to availability of spare parts. In a claim for loss of user, the Claimant 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 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 fourteen (14) working days from the date of the accident. Kitale SCC Claim. No. E036 of 2024 Page 6 of 8 Judgment

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The claimant placed before this court a Daily Income Statement Record showing that his motor vehicle earned an income of Kshs. 30,000/= in the 10 days preceding the accident herein. That shows that the Claimant’s motor vehicle earned an average of Kshs. 3,000/= per working day. For the reasons above, the award under this head will work out as follows: Kshs. 3,000/= x 14 = Kshs. 52,000/=. DISPOSITION Given the foregoing, judgment is entered against the 1st and 3rd Respondents jointly and severally for:a) Liability – 100% b) Repair costs – Kshs. 235,132/= c) Towing fees – Kshs. 15,000/= d) Loss of user - Kshs. 52,000/= e) Assessment fees – Kshs. 5,000/= f) Copy of records – Kshs. 550/= Total Award – Kshs. 307,682/= 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/=. The Claimant’s costs of this claim will be borne by the 1st and 3rd Respondents. The claim against the 2nd Respondent is dismissed with costs of Kshs. 30,000/= to be borne by the Claimant. Kitale SCC Claim. No. E036 of 2024 Page 7 of 8 Judgment

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Certificate of costs and decree to issue forthwith upon payment of requisite court fees, if any. File closed. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 10th day of July 2025 T.O. OMONO Adjudicator In the presence of: Ms. Peter for the Claimant Mr. Wathome for the 2nd Respondent C/A Albert Kitale SCC Claim. No. E036 of 2024 Page 8 of 8 Judgment

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