Kabochi v Ndungu (Claim E5986 of 2024) [2025] SCC 78 (KLR)

the accident herein to negligence by the Claimant and his driver as set out in paragraph 4 of the Response to the Statement of Claim. 5. On 15th May 2025, parties herein recorded a consent to the effect that this matter proceeds under section 30 of the Small Claims Court Act. 6. The Claimant filed their written submissions. The Respondent did not file their written submissions. ANALYSIS & DETERMINATION 7. This court has duly considered the pleadings, documents, and written submissions as well as the authorities on record. 8. It is common ground that the accident herein occurred. It is also undisputed that motor vehicle registration number KBT 056 B was owned by the Claimant while motor vehicle registration number KCX 144 B was owned by the Respondent at the time of the accident. 9. Neither the Claimant nor the Respondent stated that the accident herein occurred when their respective vehicles were not being used with their authority or for their benefit. 10. Therefore, it follows that where this court finds either driver negligent for the occurrence of the accident, the owners of the motor vehicles herein will be vicariously liable for the acts of their agents and/or drivers. 11. It is against this backdrop that this court finds that the issues that commend to this court for determination are liability and quantum. Liability 12. Geoffrey Nderu Maina who was driving motor vehicle registration number KBT 056 B at the time of the accident stated that the accident occurred when the driver of motor vehicle registration number KCX

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144 B that was coming from the opposite direction encroached onto his lane thereby hitting the front side of motor vehicle registration number KBT 056 B. 13. Francis Muthondiki Karunga and Fredrick Kariuki (driver and conductor, respectively, of motor vehicle registration number KCX 114 B), on the other hand, simply stated that suddenly and without warning, motor vehicle registration number KBT 056 B rammed into the front side of their motor vehicle. The written statements by the two were bereft of clear circumstances on how the accident occurred. 14. The Police Abstract dated 13th May 2024 (Cexh.1) placed before this court blamed the occurrence of the accident on the driver of motor vehicle registration number KCX 114 B. The entries in the said Police Abstract were made by the accident’s investigations officer one CPL. (W) Jerop. 15. It is the law in this jurisdiction that there is always a rebuttable presumption of truth in the entries made in a public document by a public official (see section 38 of the Evidence Act). 16. The Respondent did not place before this court any evidence or another Police Abstract to controvert the contents in the Police Abstract placed before this court by the Claimant. 17. The contents of the Police Abstract herein corroborate the Claimant’s evidence on the circumstances under which the accident herein occurred. In the absence of evidence to controvert the contents of the Police Abstract herein and the Claimant’s testimony on the circumstances under which the accident herein occurred, this court finds no reason to disbelieve the Claimant’s version of events on how the accident herein occurred.

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18. Given the above, and after careful evaluation of the evidence on record, this court finds the Respondent 100% liable for the occurrence of the accident herein. Quantum Special Damages/Loss 19. At paragraph 4 (IV) of the Statement of Claim, the Claimant pleaded for:a) Repair costs of Kshs. 275,300/= b) Inspection and Re-inspection costs of Kshs. 7,500/= c) Loss of use of Kshs. 200,000/= 20. The claims above, being Special Damages need to be strictly proved before the same are awarded. This position of the law was sufficiently reiterated by the Court of Appeal in David Bagine Vs Martin Bundi [1997] eKLR 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 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",

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21. Guided by the authority above, this court now proceeds to determine whether the Respondent strictly proved the claims above. Repair costs 22. The Claimant sought to rely on the Motor Vehicle Assessment Report dated 13th May 2024 by Dante Assessors and the receipt dated 27th June 2024 from Magiwa Auto Garage & Spare Parts for Kshs. 275,300/= to support the claim under this head. 23. It is given that whereas the Motor Vehicle Assessment Report herein placed the cost of repairs at Kshs. 220,300/=, the receipt from Magiwa Auto Garage & Spare Parts herein placed that cost at Kshs. 275,300/=. 24. This court takes judicial notice that a Motor Vehicle Assessment Report largely gives an estimate of the repair costs. The repair costs may eventually turn out to be lower or higher than the repair costs set out in a Motor Vehicle Assessment Report. The difference of the repair costs can also be attributed to time difference between the preparation of the Motor Vehicle Assessment Report herein and the time when the repairs were undertaken. 25. The foregoing inclines this court to find that the Claimant pleaded and proved repair costs of Kshs. 275,300/=. Inspection & Re-inspection Costs 26. The Claimant sought to rely on fee notes from Dante Assessors to support this claim. 27. Fee notes are demands for payment. Fee notes do not evidence an expenditure. A receipt or an invoice stamped as ‘paid’ are the documents capable of proving an expenditure.

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28. In the circumstances, this court holds and finds that the Claimant failed to strictly prove the claim for Inspection and Re-inspection costs, hence the same is dismissed. Loss of use 29. The Claimant prayed for loss of use for (20) days at the rate of Kshs. 10,000/= per day. It is given that the Claimant was deprived of the use of his motor vehicle during the period that the motor vehicle was under repair. 30. The law in this jurisdiction on whether a claim for loss of user is a general damage claim or a special damage claim is unsettled. There are conflicting decisions right from the Court Appeal to the High Court on this subject. 31. It is this court’s considered view that a claim under this head is a claim for special damages. This court’s position is fortified by the authorities hereunder. 32. It was said by the Court of Appeal in David Bagine vs. Martin Bundi [1997] eKLR (Gicheru, Shah & Pall), for example, that loss of user could only be special damage, for it is a loss which the claimant suffers specifically, and which could not be equated to general damages. 33. The High Court weighed in, in such cases as in Summer Limited Meru vs. Moses Kithinji Nkanata [2006] eKLR (Lenaola J), where it was said that earnings from a matatu business were not a matter that could be left to judicial discretion, for it was related to special damage, which had to be specifically proved. 34. The Claimant relied on the daily worksheets for the period between 07th-09th May 2024 to support this claim. A perusal of those daily worksheets shows that the Claimant’s motor vehicle used to earn

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a daily income of at least Kshs. 10,000/= - Kshs. 11,000/= per day. The Respondent did not impeach the contents of those daily worksheets. 35. In view of the above, it is this court’s considered view that a daily income of Kshs. 10,000/= is reasonable in the circumstances. 36. The Claimant urged this court to award the claim under this head for twenty (20) days. However, a reading of the Assessor’s Report herein shows that the repairs on the Claimant’s motor vehicle were to take fourteen (14) days. It is also trite law that a plaintiff has a duty to mitigate loss. In Halsbury’s Laws of England, fourth Edition Volume 12 at para 1193, the learned author states as follows: “The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and, if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided.” 37. In African Highland Produce Limited v John Kisorio [2001] eKLR the Court stated:“The guiding principle of law in mitigation of losses is as follows. 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, and 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 as he may, not only in his own interests but also in those of the defendant.” 38. Taking into consideration the duty imposed on the Claimant to mitigate his loss and the repairs timeframe in the Assessor’s Report herein, this court finds that the Claimant can only be awarded for loss

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of use for fourteen (14) days that the repairs were expected to have been completed. 39. This court thus makes an award of Kshs. 140,000/= under this head. Costs of the claim 40. The general rule is that costs follow the event. The Claimant, having succeeded in his claim, is entitled to costs. 41. Costs in the Small Claims Court Act are assessed per Section 33 of the Small Claims Act, which provides that:(1)The Court may award costs to the successful party in any proceedings. (2)In any other case parties shall bear their respective costs of the proceedings. (3)Without prejudice to subsections (1) and (2), the Court may award to a successful party disbursements incurred on account of the proceedings. (4)Except as provided in subsection (2), costs other than disbursements, shall not be granted to or awarded against any party to any proceedings before a Court. 42. Rule 37 of the Small Claims Court Rules provides that in assessing costs recoverable under section 33 (1) of the Act, the Court shall be guided by the Second Schedule to these Rules. 43. The schedule contemplated in rule 37 above has not been enacted. Further, there are no practice directions on the application of the Advocates Remuneration Order in the Small Claims Court. 44. It is against this background that this court finds that, as of today, assessment of costs in the Small Claims Court is done through judicial discretion as guided by section 33 of the Small Claims Court Act.

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45. Guided by section 33 of the Small Claims Court Act, taking into consideration the fees paid by the Claimant in filing documents in this matter, the number of court attendances, the time taken to conclude the matter, the award in this matter, and the fact that the claimant engaged an advocate, this court assesses the costs of this claim at Kshs. 50,000/= DISPOSITION 46. The upshot of the foregoing is that judgment is entered against the Respondent in the following terms:a. Liability - 100% in favour of the Claimant b. Repair costs - Kshs. 275,300/= c. Loss of use - Kshs. 140,000/= Net Award 47. - Kshs. 415,300/= The award above, being special damages, will accrue interest at court rate from the date of filing this claim till payment in full. 48. The Claimant will have the costs of this claim assessed at Kshs. 50,000/=. 49. Certificate of Costs and Decree to issue forthwith. 50. It is so ordered. 51. File closed. READ, SIGNED and DELIVERED in open court at Bungoma this 19 th day of June 2025 T.O. OMONO ADJUDICATOR

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In the presence of: Ms. Muthoni for the Claimant C/A: Albert

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