Mburu v Bashaeb Brothers Limited (Civil Case E011 of 2026) [2026] SCC 29 (KLR)

Issue for Determination. a. Whether the Respondent is liable for the accident. b. What is the quantum of damages awardable if. c. Who bears costs of the claim. Analysis and Determination. a. Whether the Respondent is Liable for the Accident. 6. Interlocutory judgment has been entered as against the respondent in this matter on account of his failure to file a response within the statutory timeline. 7. In the case of Kioko (Suing as the Legal Representative of the Estate of Late James Mutunga) v Mwaniki [2025] KEHC 16779(KLR),the court held:“ ...It was not necessary for the magistrate to make any findings on liability given that the interlocutory judgment was final in that respect. Nevertheless, albeit that it was superfiuous. 8. In the case of Felix Mathenge vs Kenya Power & Lighting Company Limited, CA No. 215 of 2002 the court stated; “ The respondent having failed to enter appearance within the prescribed time after the appellant had requested for it, it became mandatory upon the court to enter interlocutory judgment and for the appellant to set down the suit for assessment of damages. Having entered interlocutory judgment, it was not open once again for the same court in the instant case to state that the appellant had not proved liability against the respondent. The role of the court after entering the interlocutory judgment in such a case like this was only to assess damages since interlocutory judgment having been regularly obtained there can never be any doubt that judgment was final with regard to liability and was unassailable. It was only interlocutory with regard to the quantum of damages” 9. Similarly, in Njuguna v Thumari [2023] KEHC 26934 (KLR), the court held: “ The Respondent is held 100% liable on account of the interlocutory judgment.” 10. In this matter, similar situation obtains. The respondent was physically served but to date he has not entered appearance and interlocutory judgement having been entered settles the issue of liability. The court therefore makes a finding that the respondent is 100% liable for the accident. b. What is the Quantum of Damages Awardable if. 11. The claim of quantum is for Kshs.615,550/= the value made up of the pre-accident value, towing charges, assessment fees and copy of records but less salvage value. 12. Upon perusal of the pleadings and specifically the assessment report under reference, I take the view that that they take the form and nature of special damages which as per the law they have to be specifically pleaded and strictly proved. See the case of James Kariuki Chege vs Peter Obure Nyakora [2023] KEHC 25598 (KLR)where the case of Hahn vs Singh [1985] eKLR is cited. It is thus on that basis that an assessment report is a crucial document in material damage claim. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/29/eng@2026-04-17 2

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13. In the case of Waruingi v Nyambura & another (Civil Appeal 904 of 2022) [2025] KEHC 866 (KLR) (Civ) (31 January 2025) (Judgment) where the learned judge stated as follows in relying upon the assessment report :“ It is now settled that the assessor’s report is suficient proof and the failure to provide receipts for any repairs done is not fatal to the claim. (See the Court of Appeal’s decision in David Bagine v Martin Bundi (1996) eKLR). I am constrained to agree with the submissions of the appellant that he provided suficient evidence for the material claim and the decision in Nkuene Dairy Farmer Co-operative Society Ltd -vs- Ngacha Ndeiya(2010) eKLR where the court held; “special damages in a material damage claim need not be shown to have actually been incurred, that the claimant is only required to show the extent of damage and what would cost to restore the damaged item as near as possible to the condition it was before the accident.” 14. It is clear that the standard therefore in material damages is for the claimant to demonstrate the extent of damage and what it would costs to restore the damaged item as near as possible to the condition it was before the accident. 15. The claimant in my view and with the guidance of the cited authorities has met this test. The amount has been estimated by an expert and there being no contrary report for comparison purposes, I find that the claimant has proved on a balance of probabilities the estimate of the damage sufiered and a sum of Kshs.615,550/= that was paid and/or that is required to get the claimant to the position he was in before the accident is allowed as prayed. 16. The claim on quantum is thus allowed as indicated herein above. c. Who Bears Costs of the Claim. 17. It is clear the claimant is successful in this claim and since costs follow event, he is awarded costs of the claim. Conclusion and Disposition. 18. 19. The upshot of the foregoing I make the following final orders; a. The claim contained in the statement of claim dated 18th February 2026 is allowed in the sum of Kshs.615,550/=. b. Costs and interest at court rates is awarded to the claimant. c. The interest to accrue from the date of filing the claim until payment in full Those shall be the orders of the court. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI SMALL CLAIMS COURT THIS….17TH…..DAY OF …APRIL…2026 F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Vivian Wambui. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/29/eng@2026-04-17 3

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Mr. Nyantika for the Claimant. N/A for the respondent. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/29/eng@2026-04-17 4

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