Moja Expressway Company Ltd v Njoroge & another (Claim E670 of 2025) [2025] SCC 74 (KLR)

occurrence of the accident herein. The Respondents added that in the alternative, if at all the accident herein occurred then the same was caused by the Claimant’s negligence. The particulars of negligence attributed to the Claimant by the Respondents included failing to put reflective signage on the barrier grids, and failing to put proper lighting along the road to increase visibility. causing the said motor vehicle to damage. On 16th June 2025, parties herein elected to have this matter determined by way of documents per section 30 of the Small Claims Court Act. ANALYSIS AND DETERMINATION This court has duly considered the pleadings, the documents, written submissions, as well as the authorities relied upon by the respective parties. There is uncontroverted evidence on record that the 1 st Respondent’s motor vehicle registration number KCG 906 Q was involved in a self-involving road traffic accident on 18th August 2024 along the Nairobi Expressway Road. Further, the 1st Respondent did not dispute the fact that the 2 nd Respondent was his agent and/or servant at the time of the accident herein. That means that in the event this court finds the 2 nd Respondent liable for the occurrence of the accident herein, the 1 st Respondent will be vicariously liable for the 2 nd Respondent’s negligent acts. The foregoing inclines this court to find and hold that the only issues that commend to this court for determination are liability and quantum. Liability Michael Ganda’s (Road Administrator) witness statement dated 29 th January 2025 reiterated the particulars of negligence attributed to the Respondents. The police abstract dated 21st August 2024 blamed the 2nd Respondent for the occurrence of the accident herein. Kitale SCC Claim. No. E036 of 2024 Page 2 of 9 Judgment

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Whereas the Respondents pleaded the particulars of negligence attributed to the Claimant in their Response to the Statement of Claim, it is noteworthy that the Respondents did not file any witness statements to substantiate the particulars of negligence that they attributed to the Claimant. In the absence of witness statements, the averments in the Respondents’ Response to the Statement of Claim remain mere allegations that this court cannot rely on in determining this matter. To this end, this court draws inspiration from 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.” 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 Kitale SCC Claim. No. E036 of 2024 Page 3 of 9 Judgment

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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 Respondents did not place before this court evidence to controvert the contents of the police abstract dated 21st August 2024 that blamed the 2nd Respondent for the occurrence of the accident herein. 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. The foregoing shows that the Claimant’s version of events on how the accident herein 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 The Claimant pleaded in paragraph 4 (f) of the Statement of Claim for an award of the following Special Damages:a) Kshs. 760,468.60/= cost of repairing /replacing the damaged road facilities Kitale SCC Claim. No. E036 of 2024 Page 4 of 9 Judgment

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b) Kshs. 11,600/= Quantity Surveyor Fees c) Kshs. 550/= cost of obtaining motor vehicle copy of records from NTSA 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.” This court will proceed to determine whether the Claimant strictly proved the Special Damages pleaded in the Statement of Claim herein. (a) Costs of repairing/replacing the damaged road facilities The Claimant sought to prove this claim the Quantity Surveyor Report & Bill of Quantities dated 19th August 2024 (Cexh.7) from Premier Consultants Limited that estimated the cost of repairing the damaged section of the road at Kshs. 760,048.60/=. The Respondents submitted that this court should not rely on the above Quantity Surveyor’s report in making the award under this head since the said report did not demonstrate how the figure of Kshs. 760,048.60/= was arrived it. Be that as it may, Rule 5 (2) (a) of the Small Claims Court Act Rules permits this court to rely on an itemized estimate cost of repair prepared by a competent assessor in making an award for compensation for damage to Kitale SCC Claim. No. E036 of 2024 Page 5 of 9 Judgment

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property. The Quantity Surveyor’s report herein is one of those reports contemplated in Rule 5 (2) (a) of the Small Claims Court Act. A reading of the Quantity Surveyor’s Report herein discloses in detail how the sum of Kshs. 760,048.60/= was arrived at. This court is of the considered view that it is not enough for a party to simply dismiss an expert report by word of mouth. An expert report can only be dismissed or challenged through credible evidence like challenging the expertise of the author of such an expert report or providing another expert report that is at variance with the report relied upon by the other party. Courts in this jurisdiction have always relied on expert reports like motor vehicle assessment report and quantity surveyors’ reports in estimating the loss suffered by a party. (See Ganjoni Towers Limited v Kenya Power & Lighting Company Limited (Civil Suit 35 of 2018) [2023] KEHC 21706 (KLR) (4 August 2023) (Judgment) where a Quantity Surveyor’s report was used by the court to estimate loss suffered by a party). In the Ganjoni Towers Limited case (supra), Sewe J stated that estimates in an expert report represent an accurate picture of the plaintiff’s loss. It is against this backdrop that this court holds and finds that in the absence of evidence to controvert the contents of the Quantity Surveyor Report & Bill of Quantities dated 19th August 2024 (Cexh.7) from Premier Consultants Limited, the Claimant proved to the required standard that they suffered a loss of Kshs. 760,048.60/=. (b) Quantity Surveyor Fees The Claimant relied on an invoice dated 19th August 2024 from Premier Consultants Limited to claim for an award of Kshs. 11,600/= under this head. Kitale SCC Claim. No. E036 of 2024 Page 6 of 9 Judgment

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The Claimant submitted that they could not avail the receipt for this claim since they reportedly agreed to pay the quantity surveyor his fees upon receiving compensation from the Respondents. This court finds the position taken by the Claimant on why they could not avail a receipt for payment of the quantity surveyor’s fees incredible, unbelievable and outrageous. It is common knowledge that professional fees is never contingent upon the success of recovering damages from the offending party. The Respondents urged this court not to make the award under this head on the basis of an invoice since an invoice is not proof of payment. This court agrees with the Respondents on this issue given the settled law in this jurisdiction that an invoice can only be used to claim special damages where such an invoice is endorsed with the word ‘paid’. This court draws inspiration Idris & another v Lime & another (Suing as the legal representatives in the Estate of Samson Ndunde Lime (Deceased)) (Civil Appeal E20 of 2022) [2023] KEHC 18062 (KLR) (26 May 2023) (Judgment) where Wananda J stated that: “…it is a well settled principle of law that an invoice is not proof of payment and that special damages can only be proved by producing actual receipts or invoices endorsed with the word “Paid” (see Total (Kenya) Limited (formerlly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR.” Guided by the authority above, this court dismisses the claim for the Quantity Surveyor’s fees of Kshs. 11,600/= for want of proof. (c) Cost of obtaining motor vehicle copy of records Kitale SCC Claim. No. E036 of 2024 Page 7 of 9 Judgment

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The claim for this award was proved through a receipt of Kshs. 550/= from NTSA , therefore, the same is awarded. DISPOSITION The upshot of the foregoing is that judgment is entered against the Respondents jointly and severally for:a) Liability – 100% b) Repair costs – Kshs. 760,468.60/= c) Copy of records costs – Kshs. 550/= Total Award – Kshs. 761,018.60/= 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. 50,000/=. 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: Wanjohi for the Claimant Musanzu for the Respondent C/A Albert Kitale SCC Claim. No. E036 of 2024 Page 8 of 9 Judgment

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Kitale SCC Claim. No. E036 of 2024 Page 9 of 9 Judgment

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