Wambugu v Mungari & another (Claim E2165 of 2025) [2025] SCC 76 (KLR)

d. Re-inspection fees – Kshs. 2,320/= e. Disbursements for photocopying and scanning documents – Kshs. 15,000/= The above expenses reportedly incurred by the Claimant’s insurer informed the filing of this claim under the doctrine of subrogation. The Respondents neither entered appearance nor filed a Response to the Statement of Claim despite having been duly served by the summons and the pleadings. Consequently, an interlocutory judgment was entered against the Respondents, leading to this matter to proceed by formal proof. On 28th October 2025, the Claimant elected to have this matter proceed under section 30 of the Small Claims Court Act. ANALYSIS & DETERMINATION This court has duly considered all the Claimant’s Statement of Claim as well as all the documentary evidence on record. 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

page 2 of 11

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.’’ 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. It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: ‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ Courts in this jurisdiction have also rendered themselves on the question of the burden of proof and the legal burden placed on the Plaintiff to prove their case to the required standards, even in instances where the Defendant has failed to make an appearance. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not

page 3 of 11

take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. Similarly, in Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347, the Court of Appeal held that; “The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.” In Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal held that: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” The common thread running through the authorities above is that the Plaintiff, even in the absence of evidence to the contrary by the Defendant, is duty-bound to prove his case on a balance of probabilities. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved their case on a balance of probabilities. The police abstract on record dated 10 th May 2022 shows that the accident herein was reported at Parklands Police Station vide OB. No.

page 4 of 11

13/10/05/2022.The investigations reported dated 02nd October 2024, on the other hand, show that at the time of the accident, the 1 st Respondent was the beneficial owner of motor vehicle registration number KBH 852 H. Further, the police abstract herein shows that at the time of the accident, the 1st Respondent’s motor vehicle was being driven by the 2 nd Respondent. It thus follows that in the absence of evidence to the contrary, the 1 st Respondent is vicariously liable for the 2nd Respondent’s actions. It is also worth noting that the evidence on record shows that at the time of the accident herein, the Claimant’s motor vehicle was insured by her insurer vide insurance policy number PC/01/1463883/1(COMP). The above evidence was not controverted by the Respondents. In the circumstances, this court finds and holds that the issues for determination are liability and quantum. Liability The Claimant’s witness statement attached to her Motor Accident Claim Form dated 10th May 2022, when the circumstances of this accident were fresh in her mind, indicates that this accident occurred when she stopped at the Sarit Centre round about to give way to a matatu that was approaching the said round about at a very high speed only for that matatu to hit her motor vehicle’s front bumper and cause damage to it. The sketch map attached to the said Motor Accident Claim form confirmed as much. The Claimant urged this court to find the Respondents jointly and severally 100% liable for the occurrence of the accident since the police abstract herein blames motor vehicle registration number KBH 596 Y for causing the accident.

page 5 of 11

This court is of the considered view that an entry in a police abstract on who is to blame for the occurrence of an accident is not proof of negligence on the part of the party so blamed. That entry is only persuasive in nature. That entry must be supported by other evidence on record for the same to be deemed to be the real apportionment of liability in an accident. It is evident that the Claimant stopped at a roundabout contrary to the provisions of the Highway Code. However, that did not give licence to the 1 st Respondent’s motor vehicle to hit the Claimant’s motor vehicle. A motor vehicle that hits another motor vehicle is presumed to have been driven at a high speed, which made it impossible for the driver of such a motor vehicle to prevent the occurrence of the accident. In support of this position, this court places reliance on Mumbi Mugi –Vs- The Co-operative Bank of Kenya Limited & Others Civil Appeal No. 214 of 2004, where the Court of Appeal opined that:“If a “matatu” is driven in a normal and at reasonable speed, there would be no reason why it would run into a hippopotamus or veer off the road and smash into a tree. If a vehicle does any of these things, some explanation ought to be offered by the driver of the vehicle ….. vehicles, when normally driven at reasonable speed, do not just do certain things...” Similarly, in Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, the court stated thus: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his court at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to

page 6 of 11

avoid hitting or colliding with the object ....Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently...”(Emphasis added) The authorities above leave no doubt in the mind of this court that the 2 nd Respondent had a duty of taking reasonable steps not to hit the Claimant’s motor vehicle, even if the Claimant’s motor vehicle had wrongly stopped at the roundabout. There is no evidence on record to suggest that the 2 nd Respondent took any reasonable steps to prevent the occurrence of the accident herein. Therefore, the Respondents must shoulder some blame for hitting the Claimant’s motor vehicle. It is also imperative to note that the Claimant did not state the steps she took in attempting to prevent the occurrence of the accident. She must also shoulder blame for causing the accident. Taking the totality of the circumstances of this case into consideration, and more particularly the fact that the evidence on record is barely adequate for this court to determine who should bear the greatest responsibility for the occurrence of the accident, this court finds and holds that the Claimant and the 1st Respondent were equally to blame for the occurrence of the accident. Quantum The Claimant prayed for an award of the following:a. Repair fees – Kshs. 78,948/=

page 7 of 11

b. Assessment fees – Kshs. 6,380/= c. Tracing fees – Kshs. 23,900/= d. Re-inspection fees – Kshs. 2,320/= e. Disbursements for photocopying and scanning documents – Kshs. 15,000/= The sums above are special damages that need only be pleaded but also strictly proved before they are awarded. To this end, this court is fortified by the holding in Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another (2011) JELR 48225 (SC) (SC 221/2005 (16/2/2011)), where Mahmud Mohammed, JSC. delivering the judgment of the Supreme Court of Nigeria, stated as follows: “I must emphasize that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff …. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award...” The reasoning above was also followed by the Court of Appeal in David Bagine Vs Martin Bundi [1997] eKLR, where the Court of Appeal stated as follows: “It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:"....special damages in

page 8 of 11

addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damages, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" Guided by the authorities above, this court will now determine whether the Claimant strictly proved that her insurer expended the sums of money above. Repair costs The Claimant relied on her insurer’s payment requisition voucher and an invoice from A-Plus Auto Garage dated 25 th May 2022 to claim repair costs of Kshs. 75,948/=. It is a no brainer that a payment requisition voucher is not proof of payment, nor is an invoice without the words ‘paid’ endorsed on it. Therefore, the Claimant failed to prove that her insurer expended Kshs. 75,948/= in motor vehicle repair costs. Assessment fees The Claimant also simply relied on her insurer’s payment requisition voucher and an invoice dated 12th May 2022 from Intercounty Accident Assessors Limited to claim for assessment fees of Kshs. 6,380/=. The said documents are not proof of expenditure. Therefore, the claim for assessment fees of Kshs. 6,380/= must fail for want of proof. Tracing fees and Re-inspection fees These claims were proved by the payment requisition vouchers, invoices, and ETR receipts on record.

page 9 of 11

In the circumstances, this court makes an award of Kshs. 23,900/= for tracing fees and Kshs. 2,320/= for re-inspection fees. Disbursements for photocopying and scanning documents The Claimant prayed for an award of Kshs. 15,000/= under this head. The receipt on record dated 24th June 2025 from J.N Muema & Company Advocates proved as much. However, the sum of Kshs. 15,000/= cannot be awarded as Special Damages. This claim will be considered in the assessment of the Claimant’s costs of this Claim. DETERMINATION The upshot of the foregoing is that judgment is entered against the Respondents jointly and severally in the following terms:a. Liability - 50% b. Tracing fees - Kshs. 23,900/= c. Re-inspection fess -Kshs. 2,320/= Total Award - Kshs. 26,220/= Less 50% Net Award - Kshs. 13,110/= The award above, being special damages, will accrue 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 at Kshs. 30,000/= less 50% which translates to Kshs. 15,000/=. Certificate of Costs and Decree to issue forthwith. File closed. It is so ordered. Read, signed, and delivered in open Court at Bungoma this 27 th day of November 2025

page 10 of 11

T.O. OMONO ADJUDICATOR In the presence of: Mr. Kasirye h/b for Muema for the Claimant C/A: Mr.Rioba

page 11 of 11