Mohamed v Kandie (Civil Case E005 of 2026) [2026] SCC 122 (KLR) (29 April 2026) (Judgment) Neutral citation: [2026] SCC 122 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA CIVIL CASE E005 OF 2026 TN MWANGEKA, RM APRIL 29, 2026 BETWEEN MOHAMED SHEE MOHAMED .............................................................. CLAIMANT AND DAVID K KANDIE .............................................................................. RESPONDENT JUDGMENT 1. This judgment relates to a statement of claim dated 7th January 2026 seeking compensation for material damage arising from a road trafic accident which occurred on 27th December 2024 at Shimoni Stage Area. The Claimant, avers that its motor vehicle KDK 887E was lawfully being driven along Shimoni Stage area waiting to park when the Respondent negligently opened the back right door of his vehicle KCN 414F, hit the Claimant’s vehicle resulting in it being extensively damaged. 2. The Claimant further avers that the accident was caused solely by the negligence of the Respondent and relies on the Police abstract which blames the Respondent for the accident but did not list the Investigating Oficer as a witness in this matter. In Z O S & C A O (Suing as the Legal Representatives in the Estate of S A O (Deceased) v Amollo Stephen [2019] KEHC 9268 (KLR) the court held that a police abstract is not and cannot be proof of occurrence of an accident but proof of the fact that following an accident, the occurrence thereof was reported to the police who took cognizance of that accident. 3. The Respondent on his part has denied liability and put in a counter claim against the Claimant for Kshs. 37,000/- being cost of repairs of his motor vehicle as a result of the accident. According to the Respondent, while he was parked at Shimoni stage, the Claimant without due care and attention, failed to keep distance thereby hit the Respondent’s vehicle from behind. 4. Having considered the pleadings, documentary evidence and submissions on record I find that on a balance of probability, there is no concrete evidence to determine who is to blame between the two https://new.kenyalaw.org/akn/ke/judgment/scc/2026/122/eng@2026-04-29 1
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drivers, both are therefore held equally to blame. I rely on the Court of Appeal decision in Farah v Lento Agencies [2006]1 KLR 124,125. 5. From the evidence on record, the Claimant has not established its case suficiently as to how the accident occurred. No independent eye witness accounts have been placed before the court to fully consider and visualize the said accident. 6. Further, it is not in dispute that the matter was reported to Shimoni Police Station and the police took cognizance of the matter. The Respondent submits that the accident was handled at the police station and it was agreed that all parties bear their own costs. This has been his position ever since he was served with pleadings via whatsapp on 13th January 2026. The Claimant has not produced evidence to rebut this position but merely denied the same. 7. This court also notes that this claim has been filed two years after the said accident and that the Claimant’s insurance repaired the Claimant’s motor vehicle sometime in January 2025. It begs the question why would the Claimant come to court now after a year if parties had not agreed to bear their own costs of repairs to their respective motor vehicles. This court thus finds that based on the totality of the evidence and the conduct of the Claimant, parties had agreed to bear their own costs. 8. Turning to the counter claim by the Respondent. It is trite law that special damages must not only be pleaded but proved. The Respondent has filed a receipt which shows the cost of the repair of his car at Kshs. 37,000/-. The said receipt is not accompanied by any payment transaction to prove that the Respondent paid the said amount in repairs. Additionally, there is no assessment report to back the figures given by the Respondent. An assessment report of a vehicles damage and repair costs by a competent assessor is prima facie evidence that the damages and repair costs stated are genuine. I rely on High Court Civil Appeal Application No. 199 of 2013 Thomas Kapombe Versus Lucy Patrick T/ A Kalita Transporters & Anor where the court held as much. 9. In the end this court finds that the Claimant has not proved its case on a balance of probabilities and dismisses the claim. The counter claim is equally dismissed for insuficient evidence. There shall be no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE …… 29TH ……. DAY OF ……… APRIL … 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……Ms. Nyambura...for Claimant; ……N/A…… for Respondent C/A Sabina Signed By/For: THE JUDICIARY OF KENYA HON. THERESA N. MWANGEKA MOMBASA SMALL CLAIMS COURT SMALL CLAIMS COURT DATE: 2026-04-29 10:28:26 https://new.kenyalaw.org/akn/ke/judgment/scc/2026/122/eng@2026-04-29 2
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