(Being an appeal from the Judgment and Decree of the Small Claims Court at Machakos, Hon. B. A. Luova, Adjudicator, delivered on 25th November 2024 in Machakos SCCC No. E725 of 2024)
Background
1. This appeal arises from the judgment delivered on 25th November 2024 in Machakos SCCC No. E725 of 2024. The proceedings before the Small Claims Court concerned a road traffic accident which occurred on 19th June 2021 at Sabaki along the Nairobi-Mombasa Road and involved motor vehicle registration number KCC 605N, driven by the Respondent, and motor vehicle registration number KBK 515E, driven by the 2nd Appellant.
2. By a Statement of Claim dated 14th June 2024 and filed on 18th June 2024, the Respondent sought Kshs. 296,830 as special damages, together with costs and interest. He pleaded that the 2nd Appellant negligently changed lanes and caused the collision, thereby occasioning extensive damage to motor vehicle KCC 605N.
3. The Respondent further pleaded that his insurer had fully indemnified him for the loss and was entitled, under the doctrine of subrogation, to recover its outlay from the Appellants. The action was therefore instituted in the Respondent’s name for the insurer’s benefit.
4. The Appellants filed a Response to the Statement of Claim dated 9th July 2024. They denied liability and pleaded that the Respondent drove negligently and struck motor vehicle KBK 515E from behind. The 2nd Appellant also counterclaimed for Kshs. 26,000, being the alleged cost of repairing the damage sustained by her vehicle.
5. The Respondent filed a response to the defence and counterclaim dated 19th July 2024. He denied the particulars of negligence attributed to him and maintained that the 2nd Appellant was wholly responsible for the accident.
6. The claim proceeded by oral evidence on 6th August 2024, 17th September 2024 and 15th October 2024. The Respondent testified and called Police Constable Dennis Rotich, Kelvin Kimani Mbugua and Joseph Kiamba. The Appellants called the 2nd Appellant and Francy Kadide.
7. In its judgment dated 25th November 2024, the trial court found the 2nd Appellant wholly liable for the accident and held the Appellants jointly and severally liable. It awarded the Respondent Kshs. 271,288 as repair costs, Kshs. 6,380 as assessment fees, Kshs. 2,000 as re-inspection fees and Kshs. 550 as motor vehicle search fees. The total award was Kshs. 280,218, together with costs and interest. The counterclaim was dismissed.
8. The Appellants subsequently filed the present appeal. The record contains a Notice of Appeal and a Memorandum of Appeal challenging the entire judgment. The Memorandum of Appeal raises the following grounds, which I reproduce verbatim:
1. The Learned Trial Magistrate erred in law and fact by failing to properly consider the Appellants' consistent testimony, as the same was not even cited in her judgment. The Learned Trial Magistrate disregarded the consistent and credible testimony of the 2nd Appellant and her witness, which demonstrated that the Respondent was at fault for the accident.
2. The Learned Trial Magistrate erred in law and fact by finding the 2nd Appellant was 100% liable for the accident despite the Respondent's admission of liability. The Learned Trial Magistrate erred by failing to take this admission into account when determining liability. Additionally, the Magistrate's failure to scrutinize the Respondent's contradictory testimony violates the principle established in Moian v. Grace [1956] 1 All ER 271, which underscores the need for courts to give less weight to inconsistent accounts.
3. The Learned Trial Magistrate erred in law and fact by failing to uphold the Court of Appeal principle in Kenya Power & Lighting Company Ltd v. Julius Wambale & Another [2019] eKLR, in which the court upheld the principle that admissions made by a party should carry substantial weight in determining liability, especially when made at the scene and supported by documentation.
4. The Learned Trial Magistrate erred in law and fact by failing to dismiss the Respondent's claim since he was unable to discharge the legal burden of proof as required by Section 107 of the Evidence Act Cap 80.
5. The Learned Trial Magistrate erred in law and fact by dismissing the Appellants' counterclaim which had solid grounds and was supported by the Respondent's admission of liability. The Respondent's admission of fault, coupled with the Appellants' substantiated counterclaim, should have led to a dismissal of the Respondent's case and an upholding of the counterclaim.
6. The Learned Trial Magistrate erred in law and fact by improperly awarding damages without proper substantiation. The Trial Magistrate erred by awarding the full amount claimed by the Respondent without scrutinizing the supporting evidence for authenticity or reasonableness.
7. The Learned Trial Magistrate erred in law and fact by misapplying the doctrine of subrogation and insurance recovery. The Respondent's insurance company's involvement and subsequent subrogation claim were not sufficiently substantiated. Subrogation is a principle rooted in equity, as seen in Covenant Reinsurance v. Central Bank of Nigeria [1994] 3 WLR 123, where the court held that insurance companies cannot pursue subrogation claims unless they have met specific evidentiary standards that were not met during trial.
8. The Learned Trial Magistrate erred in law and fact by placing undue weight on the Respondent's police abstract without considering the discrepancies in time. The doctrine of contemporaneous documents (as discussed in The Queen v. Essex County Council [1955] 2 QB 458) establishes that discrepancies in documents prepared at the time of the incident undermine their reliability. The Learned Trial Magistrate should have given this inconsistency proper weight when determining liability.
9. The Judgment of the court was against the weight of the pleadings, the evidence adduced in court and the need for substantive justice.
9. The Appellants prayed that the appeal be allowed, the judgment and orders of 25th November 2024 be set aside, the Respondent’s claim be dismissed and their counterclaim be upheld.
10. After delivery of judgment, the Appellants filed a Notice of Motion dated 10th January 2025 seeking stay of execution pending appeal. By a ruling delivered on 20th February 2025, the Small Claims Court granted a conditional stay and directed counsel to open a joint interest-earning account and deposit the decretal sum therein. That application and ruling do not determine the merits of this appeal but are relevant to the consequential orders concerning the deposited security.
11. The appeal was canvassed through written submissions. The Appellants’ written submissions were filed by Kanga & Company Advocates, while the Respondent’s submissions dated 6th May 2026 were filed by J. N. Muema & Company Advocates.
The Appellants’ submissions
12. Learned counsel for the Appellants submitted that the trial court did not properly evaluate the evidence of the 2nd Appellant and Francy Kadide. Counsel contended that their account was consistent, in that the 2nd Appellant had slowed down, indicated and moved towards the left turn leading to Lemon Valley when the Respondent’s vehicle struck KBK 515E from behind.
13. Counsel further submitted that the Respondent admitted responsibility at the scene, shared his insurance particulars and undertook to have the Appellants’ vehicle repaired. Reliance was placed on an electronic message attributed to the Respondent, which stated that his insurer would appoint a garage the following day because it did not operate on Sunday.
14. The Appellants also challenged the probative value of the police abstract dated 21st June 2021. They pointed out that it recorded the accident as having occurred at 0900 hours, whereas the parties’ oral evidence was that the accident occurred at night. The officer who produced the abstract on 6th August 2024 was not the investigating officer and did not have the police file, occurrence book, sketch plan, inspection reports or witness statements.
15. Counsel contended that the trial court was internally inconsistent in acknowledging that the police evidence had little probative value while nevertheless accepting the blame attributed to the Appellants in the abstract.
16. On special damages, the Appellants submitted that the trial court failed to scrutinise the repair and payment documents. They maintained that the Respondent did not establish with certainty either the exact sum paid or the identity of the insurer entitled to recover it.
17. On subrogation, counsel referred to inconsistencies in the record involving Corporate Insurance Company Limited, CIC General Insurance and Occidental Insurance Company Limited. It was argued that the insurer’s right to subrogation, and the amount actually paid, were not satisfactorily proved.
18. Lastly, the Appellants submitted that the counterclaim for Kshs. 26,000 was supported by documentary evidence and was dismissed without adequate reasons.
The Respondent’s submissions
19. The Respondent submitted that the trial court considered both versions and correctly found that the 2nd Appellant moved from the right-hand lane into the left-hand lane without ensuring that it was safe to do so. Counsel emphasised the 2nd Appellant’s admission in cross-examination on 17th September 2024 that she was changing lanes and had not seen the Respondent’s vehicle behind her.
20. On the alleged admission, the Respondent submitted that the electronic message did not amount to an unequivocal acceptance of liability. It merely indicated that an insurance process was contemplated. The Respondent had, in any event, denied both the alleged admission and the asserted gentleman’s agreement.
21. Regarding the police abstract, the Respondent accepted that it contained an erroneous time but argued that the trial court did not determine liability solely on the basis of that document. The direct evidence of the drivers remained available for the court’s consideration.
22. On subrogation, the Respondent relied on the policy schedule, claim form, assessment documents, payment vouchers and the evidence of the claims officer given on 17th September 2024. Counsel argued that those materials established an insurance contract covering KCC 605N, payment by the insurer and the insurer’s right to recover in the insured’s name.
23. The Respondent further submitted that the trial court scrutinised the special damages and awarded only the sums proved. It rejected the Kshs. 15,000 claimed as disbursements and awarded Kshs. 280,218 rather than the full Kshs. 296,830 sought in the Statement of Claim dated 14th June 2024.
24. On the counterclaim, counsel argued that a receipt for Kshs. 26,000, without an assessment report or itemised evidence connecting the expenditure to the subject accident, did not satisfy the requirement of strict proof.
Analysis and determination
25. This appeal emanates from the Small Claims Court. Section 38(1) of the Small Claims Court Act limits an appeal to the High Court to matters of law. The Court may nevertheless interfere where a factual conclusion is founded on no evidence, results from a material misapprehension of the evidence, applies the wrong standard or burden of proof, or is one that no reasonable tribunal properly directing itself could reach.
26. The Court of Appeal in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 stated that a first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. In Peters v Sunday Post Limited [1958] EA 424, the Court cautioned that an appellate court should not disturb findings of fact merely because it would itself have reached a different conclusion.
27. In Mwanasokoni v Kenya Bus Services Limited [1982-88] 1 KAR 278, the Court of Appeal held that interference is justified where the trial court’s findings are based on no evidence, on a misapprehension of the evidence or on a demonstrably wrong principle. That remains the appropriate approach, subject to the statutory limitation under section 38 of the Small Claims Court Act.
Issues for Determination
28. The grounds and submissions raise four principal issues for detemination.
i) The first is whether the finding of 100% liability against the Appellants was legally and evidentially sustainable.
ii) The second concerns the weight of the alleged admission and the police abstract.
iii) The third is whether the insurance and special-damage evidence satisfied the requirements of subrogation and strict proof.
iv) The fourth is whether the counterclaim was established.
Liability
29. Under sections 107, 108 and 109 of the Evidence Act, the Respondent bore the legal burden of proving the negligence alleged against the Appellants. The Appellants bore the burden of proving the negligence attributed to the Respondent in their defence and counterclaim. The applicable standard was a balance of probabilities.
30. The Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR adopted Lord Denning’s formulation that the civil burden is discharged where the evidence establishes that the asserted version is more probable than not. Where the probabilities remain equal, the party bearing the burden fails.
31. The essential circumstances of the accident were substantially common ground. The two vehicles were travelling in the same direction. The 2nd Appellant was initially in the right-hand lane and intended to leave the main road through a turn on the left. The impact was between the front portion of the Respondent’s vehicle and the rear-left portion of the Appellants’ vehicle.
32. The 2nd Appellant testified on 17th September 2024 that she had indicated, moved into the left-hand lane and begun turning when she heard an impact from behind. Significantly, she admitted under cross-examination that she had not seen the Respondent’s vehicle behind her before changing lanes.
33. The Respondent testified on 6th August 2024 that the 2nd Appellant moved abruptly into his lane without indicating. He stated that he saw her vehicle approximately ten to twenty metres ahead, applied his brakes, attempted to swerve and then skidded on the wet road before striking the rear-left portion of KBK 515E.
34. A driver intending to change lanes must signal and ascertain that the intended movement can be undertaken safely. A signal communicates an intention; it does not confer priority over traffic already occupying the destination lane. The 2nd Appellant’s admission that she did not see the Respondent’s vehicle before moving across supports the trial court’s conclusion that she failed to keep a proper lookout.
35. That finding does not, however, dispose of the Respondent’s own obligation. A following driver must maintain a reasonable distance, keep a proper lookout and regulate speed according to the prevailing road and visibility conditions. The Respondent had already seen KBK 515E ahead. It was night, the road was wet, and his vehicle nevertheless skidded before striking the rear-left portion of the vehicle.
36. In Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR, the Court of Appeal, adopting the reasoning in Stapley v Gypsum Mines Ltd [1953] AC 663, stated that causation and liability must be determined by applying common sense to the particular facts and distinguishing the effective causes of an accident from matters that are too remote.
37. The Court of Appeal has also recognised that a following driver bears a duty to maintain sufficient distance to respond to the movement of traffic ahead. That duty does not impose automatic liability in every rear-end collision, but the point and manner of impact remain important evidential circumstances.
38. On the evidence, the 2nd Appellant’s unsafe movement across the Respondent’s path was the dominant cause of the accident. Her failure to see the approaching vehicle before changing lanes exposed both vehicles to immediate danger. The Respondent nonetheless contributed by failing to maintain sufficient control and stopping distance in circumstances of darkness and a wet road.
39. The trial court referred to the Appellants’ evidence, but did not evaluate the contributory negligence apparent from the Respondent’s own testimony. In imposing 100% liability on the Appellants, it omitted a legally relevant consideration. That omission justifies appellate interference.
40. Having weighed the respective causal contributions, I apportion liability at 70% against the Appellants jointly and severally and 30% against the Respondent.
The alleged admission
41. Sections 17 and 18 of the Evidence Act render relevant and admissible statements by a party which suggest an inference concerning a fact in issue. The weight of such an admission depends upon its terms, context and the other evidence.
42. The Appellants relied on their oral evidence that, on 19th June 2021, the Respondent accepted responsibility, shared his insurance details and promised to repair their vehicle. They also relied on the message allegedly sent on 20th June 2021 stating: “Hey, Insurance will appoint a garage for us tomorrow. Today is Sunday. They don’t work.”
43. The message supports the contention that the Respondent contemplated an insurance-assisted repair. It does not expressly state that he caused the accident or accepted sole legal responsibility. The sharing of insurance information and discussion of repairs may be consistent with an admission, but may equally be part of an attempt to facilitate a claim without conceding fault.
44. The Court of Appeal has repeatedly held that an admission relied upon to dispose of a contested claim must be clear and unambiguous. The particular communication in this case did not attain that quality. It was relevant and ought to have been expressly addressed by the trial court, but it was not conclusive.
45. When considered together with the Respondent’s inability to avoid the rear-side impact, the message supports a finding that he bore some responsibility. It does not displace the 2nd Appellant’s admitted failure to detect his vehicle before moving into the left lane.
The police abstract
46. The police abstract dated 21st June 2021 stated that the accident occurred at 0900 hours. The evidence of the Respondent, the 2nd Appellant and Francy Kadide (Respondent Witness 2) was that it occurred at night, at approximately 9.00 p.m. or shortly thereafter. The discrepancy was therefore substantial.
47. Police Constable Dennis Rotich (CW2), who produced the abstract on 6th August 2024, was not the investigating officer. He did not attend the scene and had neither the occurrence book, police file, sketch plan, inspection reports nor witness statements. He expressly acknowledged that he could not testify with certainty as to the investigations or the factual basis upon which KBK 515E had been blamed.
48. The Court of Appeal in Thuranira Karauri v Agnes Ncheche, Civil Appeal No. 192 of 1996, explained that a police abstract records salient particulars reported to the police but does not, without more, conclusively establish the accuracy of those particulars. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR, the High Court similarly held that a police abstract principally establishes that an accident was reported, rather than how it occurred or who was legally responsible.
49. The trial court correctly recognised that the police evidence was of low probative value. It was, however, improper to speculate that the 2nd Appellant’s failure to make a separate report implied knowledge of fault. No such evidential presumption arises. Her explanation was that she expected the Respondent’s insurer to handle the matter.
50. I have therefore placed no weight on the abstract’s attribution of blame. It remained admissible to prove that the accident was reported and to identify the vehicles involved. Liability has been determined from the testimony of the drivers and the objective circumstances of the lane change and point of impact.
Subrogation
51. The principle of subrogation enables an insurer, after indemnifying its insured, to exercise the insured’s rights against a third party responsible for the loss. The insurer ordinarily proceeds in the insured’s name and cannot recover more than its actual outlay.
52. In Kenya Power & Lighting Company Limited v Julius Wambale & another [2019] eKLR, the Court explained that the doctrine presupposes a valid insurance contract, crystallisation of the insured risk and payment by the insurer. Once the insured has been indemnified, the insurer may enforce the insured’s rights in relation to the insured subject matter.
53. The policy schedule produced at the hearing on 17th September 2024 identified Bismark Muimi Kyangati as the insured, KCC 605N as the insured vehicle and the cover period as 22nd April 2021 to 21st April 2022. The accident of 19th June 2021 therefore occurred within the policy period.
54. Joseph Kiamba testified on 17th September 2024 that the insurer processed the claim and paid the repair and assessment expenses. The Respondent also produced payment vouchers, assessment documents and repair records connecting those payments to KCC 605N.
55. The record contains references to Corporate Insurance Company Limited, CIC General Insurance and, in paragraph 12 of the Statement of Claim dated 14th June 2024, Occidental Insurance Company Limited. The latter reference was plainly inconsistent with the policy and claims documents. The discrepancy should have been addressed more carefully by the trial court.
56. Nevertheless, the policy schedule and the evidence of the claims officer identified the insurer that issued the cover and met the claim. The mistaken reference in one paragraph of the pleading did not, in the circumstances, displace the documentary evidence establishing the contract and payments.
57. The policy number was also stated inconsistently in the claims officer’s witness statement dated 15th July 2024. During his testimony on 17th September 2024, he corrected the error by reference to the policy schedule. The correction related to a clerical discrepancy and did not demonstrate the absence of an insurance contract.
58. The Appellants further complained that no deed or letter of subrogation was produced. A separate instrument is not invariably necessary where the equitable right has arisen through payment and the proceedings are brought in the insured’s name. The material questions are whether the insured risk was covered, whether the loss occurred, whether the insurer paid and whether the third party was liable.
59. Those elements were sufficiently established. The trial court did not err in recognising the subrogated claim.
Special damages
60. The Court of Appeal in Hahn v Singh [1985] KLR 716 held that special damages must be specifically pleaded and strictly proved. In Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR, the Court reiterated that unsupported figures cannot sustain a claim for special damages and that credible evidence must establish the expenditure or loss claimed.
61. The Statement of Claim dated 14th June 2024 pleaded Kshs. 179,400 for repairs, Kshs. 93,500 for spare parts, Kshs. 6,380 for assessment, Kshs. 2,000 for re-assessment, Kshs. 550 for the NTSA search and Kshs. 15,000 as disbursements.
62. The trial court considered the assessment report dated 30th June 2021, the assessor’s invoice dated 7th July 2021, the re-inspection report dated 17th August 2021, the repair and parts invoices dated in September 2021, the payment vouchers and the NTSA invoice dated 11th June 2024.
63. The repair records established payment of Kshs. 179,400 and a net payment of Kshs. 91,888 for parts, giving a total of Kshs. 271,288. The payment records reflected a withholding-tax deduction from the gross parts invoice of Kshs. 93,500. The trial court adopted the lower net figure.
64. The court further awarded Kshs. 6,380 for assessment, Kshs. 2,000 for re-inspection and Kshs. 550 for the NTSA search. It rejected the Kshs. 15,000 disbursement claim. The Appellants’ assertion that the court awarded the entire Kshs. 296,830 is therefore not borne out by the judgment dated 25th November 2024.
65. The invoices were supported by the claims officer’s evidence and payment vouchers. The assessment and re-inspection reports connected the repairs to the accident vehicle. The expenditure of Kshs. 280,218 was therefore strictly proved to the degree required by the nature of the claim.
66. After deduction of the Respondent’s 30% contribution, the recoverable amount is Kshs. 196,152.60.
The counterclaim
67. The counterclaim dated 9th July 2024 was an independent claim. The Appellants were required to prove the Respondent’s negligence, the damage sustained by KBK 515E, the repairs undertaken and the amount paid.
68. The 2nd Appellant produced a receipt from Royton Motors dated 10th July 2021 for Kshs. 26,000. The record does not disclose an itemised invoice or a duly produced assessment report identifying the parts damaged, the necessary repairs and their relationship to the accident.
69. The 2nd Appellant also testified that the accident damage was minor and that she had intended to undertake general bodywork on the vehicle. That evidence left unresolved whether the entire Kshs. 26,000 related exclusively to damage caused on 19th June 2021.
70. The trial court dismissed the counterclaim on the ground that the 2nd Appellant could not benefit from her wrongdoing. That reasoning was incomplete. A finding of contributory negligence does not necessarily extinguish a counterclaim; proved damages may be reduced according to the claimant’s contribution.
71. The counterclaim nevertheless failed because the Kshs. 26,000 was not strictly proved as an accident-related loss. Its dismissal will therefore stand, although for the reasons stated in this judgment.
Disposition
72. The appeal succeeds only to the extent that the trial court failed to account for the Respondent’s contributory negligence. The findings on subrogation, the gross special damages and the dismissal of the counterclaim remain undisturbed.
73. Under section 27 of the Civil Procedure Act, costs follow the event unless the court, for good reason, orders otherwise. The Respondent remains substantially successful in the proceedings before the Small Claims Court and shall retain the costs awarded there. The Appellants have achieved partial success in this appeal, but have failed in their prayer for dismissal of the claim and entry of judgment on the counterclaim. Each party shall accordingly bear its own costs of the appeal.
74. In the result, the appeal is allowed in part and the Court makes the following orders:
a. The finding of 100% liability against the Appellants in the judgment dated 25th November 2024 is set aside and substituted with liability apportioned at 70% against the Appellants jointly and severally and 30% against the Respondent.
b. The assessment of gross special damages at Kshs. 280,218 is upheld.
c. After deducting the Respondent’s 30% contribution, judgment is entered for the Respondent against the Appellants jointly and severally for Kshs. 196,152.60.
d. The dismissal of the Appellants’ counterclaim is upheld.
e. The Respondent shall have interest on Kshs. 196,152.60 at court rates from the date the Statement of Claim was filed on 18th June 2024 until payment in full.
f. The Respondent shall retain the costs awarded in Machakos SCCC No. E725 of 2024.
g. Each party shall bear its own costs of this appeal.
75. The money deposited as security pursuant to the ruling dated 20th February 2025 shall be applied towards satisfaction of the decree as varied by this judgment, including accrued interest and the agreed or assessed costs of the proceedings before the Small Claims Court. Any balance shall be released to the Appellants.
It is so ordered.
READ AND PUBLISHED IN THE CTS THIS 28TH AUGUST 2026 IN THE PRESENCE OF:
BEFORE HON JOYCE GANDANI JUDGE
Background
1. This appeal arises from the judgment delivered on 25th November 2024 in Machakos SCCC No. E725 of 2024. The proceedings before the Small Claims Court concerned a road traffic accident which occurred on 19th June 2021 at Sabaki along the Nairobi-Mombasa Road and involved motor vehicle registration number KCC 605N, driven by the Respondent, and motor vehicle registration number KBK 515E, driven by the 2nd Appellant.
2. By a Statement of Claim dated 14th June 2024 and filed on 18th June 2024, the Respondent sought Kshs. 296,830 as special damages, together with costs and interest. He pleaded that the 2nd Appellant negligently changed lanes and caused the collision, thereby occasioning extensive damage to motor vehicle KCC 605N.
3. The Respondent further pleaded that his insurer had fully indemnified him for the loss and was entitled, under the doctrine of subrogation, to recover its outlay from the Appellants. The action was therefore instituted in the Respondent’s name for the insurer’s benefit.
4. The Appellants filed a Response to the Statement of Claim dated 9th July 2024. They denied liability and pleaded that the Respondent drove negligently and struck motor vehicle KBK 515E from behind. The 2nd Appellant also counterclaimed for Kshs. 26,000, being the alleged cost of repairing the damage sustained by her vehicle.
5. The Respondent filed a response to the defence and counterclaim dated 19th July 2024. He denied the particulars of negligence attributed to him and maintained that the 2nd Appellant was wholly responsible for the accident.
6. The claim proceeded by oral evidence on 6th August 2024, 17th September 2024 and 15th October 2024. The Respondent testified and called Police Constable Dennis Rotich, Kelvin Kimani Mbugua and Joseph Kiamba. The Appellants called the 2nd Appellant and Francy Kadide.
7. In its judgment dated 25th November 2024, the trial court found the 2nd Appellant wholly liable for the accident and held the Appellants jointly and severally liable. It awarded the Respondent Kshs. 271,288 as repair costs, Kshs. 6,380 as assessment fees, Kshs. 2,000 as re-inspection fees and Kshs. 550 as motor vehicle search fees. The total award was Kshs. 280,218, together with costs and interest. The counterclaim was dismissed.
8. The Appellants subsequently filed the present appeal. The record contains a Notice of Appeal and a Memorandum of Appeal challenging the entire judgment. The Memorandum of Appeal raises the following grounds, which I reproduce verbatim:
1. The Learned Trial Magistrate erred in law and fact by failing to properly consider the Appellants' consistent testimony, as the same was not even cited in her judgment. The Learned Trial Magistrate disregarded the consistent and credible testimony of the 2nd Appellant and her witness, which demonstrated that the Respondent was at fault for the accident.
2. The Learned Trial Magistrate erred in law and fact by finding the 2nd Appellant was 100% liable for the accident despite the Respondent's admission of liability. The Learned Trial Magistrate erred by failing to take this admission into account when determining liability. Additionally, the Magistrate's failure to scrutinize the Respondent's contradictory testimony violates the principle established in Moian v. Grace [1956] 1 All ER 271, which underscores the need for courts to give less weight to inconsistent accounts.
3. The Learned Trial Magistrate erred in law and fact by failing to uphold the Court of Appeal principle in Kenya Power & Lighting Company Ltd v. Julius Wambale & Another [2019] eKLR, in which the court upheld the principle that admissions made by a party should carry substantial weight in determining liability, especially when made at the scene and supported by documentation.
4. The Learned Trial Magistrate erred in law and fact by failing to dismiss the Respondent's claim since he was unable to discharge the legal burden of proof as required by Section 107 of the Evidence Act Cap 80.
5. The Learned Trial Magistrate erred in law and fact by dismissing the Appellants' counterclaim which had solid grounds and was supported by the Respondent's admission of liability. The Respondent's admission of fault, coupled with the Appellants' substantiated counterclaim, should have led to a dismissal of the Respondent's case and an upholding of the counterclaim.
6. The Learned Trial Magistrate erred in law and fact by improperly awarding damages without proper substantiation. The Trial Magistrate erred by awarding the full amount claimed by the Respondent without scrutinizing the supporting evidence for authenticity or reasonableness.
7. The Learned Trial Magistrate erred in law and fact by misapplying the doctrine of subrogation and insurance recovery. The Respondent's insurance company's involvement and subsequent subrogation claim were not sufficiently substantiated. Subrogation is a principle rooted in equity, as seen in Covenant Reinsurance v. Central Bank of Nigeria [1994] 3 WLR 123, where the court held that insurance companies cannot pursue subrogation claims unless they have met specific evidentiary standards that were not met during trial.
8. The Learned Trial Magistrate erred in law and fact by placing undue weight on the Respondent's police abstract without considering the discrepancies in time. The doctrine of contemporaneous documents (as discussed in The Queen v. Essex County Council [1955] 2 QB 458) establishes that discrepancies in documents prepared at the time of the incident undermine their reliability. The Learned Trial Magistrate should have given this inconsistency proper weight when determining liability.
9. The Judgment of the court was against the weight of the pleadings, the evidence adduced in court and the need for substantive justice.
9. The Appellants prayed that the appeal be allowed, the judgment and orders of 25th November 2024 be set aside, the Respondent’s claim be dismissed and their counterclaim be upheld.
10. After delivery of judgment, the Appellants filed a Notice of Motion dated 10th January 2025 seeking stay of execution pending appeal. By a ruling delivered on 20th February 2025, the Small Claims Court granted a conditional stay and directed counsel to open a joint interest-earning account and deposit the decretal sum therein. That application and ruling do not determine the merits of this appeal but are relevant to the consequential orders concerning the deposited security.
11. The appeal was canvassed through written submissions. The Appellants’ written submissions were filed by Kanga & Company Advocates, while the Respondent’s submissions dated 6th May 2026 were filed by J. N. Muema & Company Advocates.
The Appellants’ submissions
12. Learned counsel for the Appellants submitted that the trial court did not properly evaluate the evidence of the 2nd Appellant and Francy Kadide. Counsel contended that their account was consistent, in that the 2nd Appellant had slowed down, indicated and moved towards the left turn leading to Lemon Valley when the Respondent’s vehicle struck KBK 515E from behind.
13. Counsel further submitted that the Respondent admitted responsibility at the scene, shared his insurance particulars and undertook to have the Appellants’ vehicle repaired. Reliance was placed on an electronic message attributed to the Respondent, which stated that his insurer would appoint a garage the following day because it did not operate on Sunday.
14. The Appellants also challenged the probative value of the police abstract dated 21st June 2021. They pointed out that it recorded the accident as having occurred at 0900 hours, whereas the parties’ oral evidence was that the accident occurred at night. The officer who produced the abstract on 6th August 2024 was not the investigating officer and did not have the police file, occurrence book, sketch plan, inspection reports or witness statements.
15. Counsel contended that the trial court was internally inconsistent in acknowledging that the police evidence had little probative value while nevertheless accepting the blame attributed to the Appellants in the abstract.
16. On special damages, the Appellants submitted that the trial court failed to scrutinise the repair and payment documents. They maintained that the Respondent did not establish with certainty either the exact sum paid or the identity of the insurer entitled to recover it.
17. On subrogation, counsel referred to inconsistencies in the record involving Corporate Insurance Company Limited, CIC General Insurance and Occidental Insurance Company Limited. It was argued that the insurer’s right to subrogation, and the amount actually paid, were not satisfactorily proved.
18. Lastly, the Appellants submitted that the counterclaim for Kshs. 26,000 was supported by documentary evidence and was dismissed without adequate reasons.
The Respondent’s submissions
19. The Respondent submitted that the trial court considered both versions and correctly found that the 2nd Appellant moved from the right-hand lane into the left-hand lane without ensuring that it was safe to do so. Counsel emphasised the 2nd Appellant’s admission in cross-examination on 17th September 2024 that she was changing lanes and had not seen the Respondent’s vehicle behind her.
20. On the alleged admission, the Respondent submitted that the electronic message did not amount to an unequivocal acceptance of liability. It merely indicated that an insurance process was contemplated. The Respondent had, in any event, denied both the alleged admission and the asserted gentleman’s agreement.
21. Regarding the police abstract, the Respondent accepted that it contained an erroneous time but argued that the trial court did not determine liability solely on the basis of that document. The direct evidence of the drivers remained available for the court’s consideration.
22. On subrogation, the Respondent relied on the policy schedule, claim form, assessment documents, payment vouchers and the evidence of the claims officer given on 17th September 2024. Counsel argued that those materials established an insurance contract covering KCC 605N, payment by the insurer and the insurer’s right to recover in the insured’s name.
23. The Respondent further submitted that the trial court scrutinised the special damages and awarded only the sums proved. It rejected the Kshs. 15,000 claimed as disbursements and awarded Kshs. 280,218 rather than the full Kshs. 296,830 sought in the Statement of Claim dated 14th June 2024.
24. On the counterclaim, counsel argued that a receipt for Kshs. 26,000, without an assessment report or itemised evidence connecting the expenditure to the subject accident, did not satisfy the requirement of strict proof.
Analysis and determination
25. This appeal emanates from the Small Claims Court. Section 38(1) of the Small Claims Court Act limits an appeal to the High Court to matters of law. The Court may nevertheless interfere where a factual conclusion is founded on no evidence, results from a material misapprehension of the evidence, applies the wrong standard or burden of proof, or is one that no reasonable tribunal properly directing itself could reach.
26. The Court of Appeal in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 stated that a first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. In Peters v Sunday Post Limited [1958] EA 424, the Court cautioned that an appellate court should not disturb findings of fact merely because it would itself have reached a different conclusion.
27. In Mwanasokoni v Kenya Bus Services Limited [1982-88] 1 KAR 278, the Court of Appeal held that interference is justified where the trial court’s findings are based on no evidence, on a misapprehension of the evidence or on a demonstrably wrong principle. That remains the appropriate approach, subject to the statutory limitation under section 38 of the Small Claims Court Act.
Issues for Determination
28. The grounds and submissions raise four principal issues for detemination.
i) The first is whether the finding of 100% liability against the Appellants was legally and evidentially sustainable.
ii) The second concerns the weight of the alleged admission and the police abstract.
iii) The third is whether the insurance and special-damage evidence satisfied the requirements of subrogation and strict proof.
iv) The fourth is whether the counterclaim was established.
Liability
29. Under sections 107, 108 and 109 of the Evidence Act, the Respondent bore the legal burden of proving the negligence alleged against the Appellants. The Appellants bore the burden of proving the negligence attributed to the Respondent in their defence and counterclaim. The applicable standard was a balance of probabilities.
30. The Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR adopted Lord Denning’s formulation that the civil burden is discharged where the evidence establishes that the asserted version is more probable than not. Where the probabilities remain equal, the party bearing the burden fails.
31. The essential circumstances of the accident were substantially common ground. The two vehicles were travelling in the same direction. The 2nd Appellant was initially in the right-hand lane and intended to leave the main road through a turn on the left. The impact was between the front portion of the Respondent’s vehicle and the rear-left portion of the Appellants’ vehicle.
32. The 2nd Appellant testified on 17th September 2024 that she had indicated, moved into the left-hand lane and begun turning when she heard an impact from behind. Significantly, she admitted under cross-examination that she had not seen the Respondent’s vehicle behind her before changing lanes.
33. The Respondent testified on 6th August 2024 that the 2nd Appellant moved abruptly into his lane without indicating. He stated that he saw her vehicle approximately ten to twenty metres ahead, applied his brakes, attempted to swerve and then skidded on the wet road before striking the rear-left portion of KBK 515E.
34. A driver intending to change lanes must signal and ascertain that the intended movement can be undertaken safely. A signal communicates an intention; it does not confer priority over traffic already occupying the destination lane. The 2nd Appellant’s admission that she did not see the Respondent’s vehicle before moving across supports the trial court’s conclusion that she failed to keep a proper lookout.
35. That finding does not, however, dispose of the Respondent’s own obligation. A following driver must maintain a reasonable distance, keep a proper lookout and regulate speed according to the prevailing road and visibility conditions. The Respondent had already seen KBK 515E ahead. It was night, the road was wet, and his vehicle nevertheless skidded before striking the rear-left portion of the vehicle.
36. In Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR, the Court of Appeal, adopting the reasoning in Stapley v Gypsum Mines Ltd [1953] AC 663, stated that causation and liability must be determined by applying common sense to the particular facts and distinguishing the effective causes of an accident from matters that are too remote.
37. The Court of Appeal has also recognised that a following driver bears a duty to maintain sufficient distance to respond to the movement of traffic ahead. That duty does not impose automatic liability in every rear-end collision, but the point and manner of impact remain important evidential circumstances.
38. On the evidence, the 2nd Appellant’s unsafe movement across the Respondent’s path was the dominant cause of the accident. Her failure to see the approaching vehicle before changing lanes exposed both vehicles to immediate danger. The Respondent nonetheless contributed by failing to maintain sufficient control and stopping distance in circumstances of darkness and a wet road.
39. The trial court referred to the Appellants’ evidence, but did not evaluate the contributory negligence apparent from the Respondent’s own testimony. In imposing 100% liability on the Appellants, it omitted a legally relevant consideration. That omission justifies appellate interference.
40. Having weighed the respective causal contributions, I apportion liability at 70% against the Appellants jointly and severally and 30% against the Respondent.
The alleged admission
41. Sections 17 and 18 of the Evidence Act render relevant and admissible statements by a party which suggest an inference concerning a fact in issue. The weight of such an admission depends upon its terms, context and the other evidence.
42. The Appellants relied on their oral evidence that, on 19th June 2021, the Respondent accepted responsibility, shared his insurance details and promised to repair their vehicle. They also relied on the message allegedly sent on 20th June 2021 stating: “Hey, Insurance will appoint a garage for us tomorrow. Today is Sunday. They don’t work.”
43. The message supports the contention that the Respondent contemplated an insurance-assisted repair. It does not expressly state that he caused the accident or accepted sole legal responsibility. The sharing of insurance information and discussion of repairs may be consistent with an admission, but may equally be part of an attempt to facilitate a claim without conceding fault.
44. The Court of Appeal has repeatedly held that an admission relied upon to dispose of a contested claim must be clear and unambiguous. The particular communication in this case did not attain that quality. It was relevant and ought to have been expressly addressed by the trial court, but it was not conclusive.
45. When considered together with the Respondent’s inability to avoid the rear-side impact, the message supports a finding that he bore some responsibility. It does not displace the 2nd Appellant’s admitted failure to detect his vehicle before moving into the left lane.
The police abstract
46. The police abstract dated 21st June 2021 stated that the accident occurred at 0900 hours. The evidence of the Respondent, the 2nd Appellant and Francy Kadide (Respondent Witness 2) was that it occurred at night, at approximately 9.00 p.m. or shortly thereafter. The discrepancy was therefore substantial.
47. Police Constable Dennis Rotich (CW2), who produced the abstract on 6th August 2024, was not the investigating officer. He did not attend the scene and had neither the occurrence book, police file, sketch plan, inspection reports nor witness statements. He expressly acknowledged that he could not testify with certainty as to the investigations or the factual basis upon which KBK 515E had been blamed.
48. The Court of Appeal in Thuranira Karauri v Agnes Ncheche, Civil Appeal No. 192 of 1996, explained that a police abstract records salient particulars reported to the police but does not, without more, conclusively establish the accuracy of those particulars. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR, the High Court similarly held that a police abstract principally establishes that an accident was reported, rather than how it occurred or who was legally responsible.
49. The trial court correctly recognised that the police evidence was of low probative value. It was, however, improper to speculate that the 2nd Appellant’s failure to make a separate report implied knowledge of fault. No such evidential presumption arises. Her explanation was that she expected the Respondent’s insurer to handle the matter.
50. I have therefore placed no weight on the abstract’s attribution of blame. It remained admissible to prove that the accident was reported and to identify the vehicles involved. Liability has been determined from the testimony of the drivers and the objective circumstances of the lane change and point of impact.
Subrogation
51. The principle of subrogation enables an insurer, after indemnifying its insured, to exercise the insured’s rights against a third party responsible for the loss. The insurer ordinarily proceeds in the insured’s name and cannot recover more than its actual outlay.
52. In Kenya Power & Lighting Company Limited v Julius Wambale & another [2019] eKLR, the Court explained that the doctrine presupposes a valid insurance contract, crystallisation of the insured risk and payment by the insurer. Once the insured has been indemnified, the insurer may enforce the insured’s rights in relation to the insured subject matter.
53. The policy schedule produced at the hearing on 17th September 2024 identified Bismark Muimi Kyangati as the insured, KCC 605N as the insured vehicle and the cover period as 22nd April 2021 to 21st April 2022. The accident of 19th June 2021 therefore occurred within the policy period.
54. Joseph Kiamba testified on 17th September 2024 that the insurer processed the claim and paid the repair and assessment expenses. The Respondent also produced payment vouchers, assessment documents and repair records connecting those payments to KCC 605N.
55. The record contains references to Corporate Insurance Company Limited, CIC General Insurance and, in paragraph 12 of the Statement of Claim dated 14th June 2024, Occidental Insurance Company Limited. The latter reference was plainly inconsistent with the policy and claims documents. The discrepancy should have been addressed more carefully by the trial court.
56. Nevertheless, the policy schedule and the evidence of the claims officer identified the insurer that issued the cover and met the claim. The mistaken reference in one paragraph of the pleading did not, in the circumstances, displace the documentary evidence establishing the contract and payments.
57. The policy number was also stated inconsistently in the claims officer’s witness statement dated 15th July 2024. During his testimony on 17th September 2024, he corrected the error by reference to the policy schedule. The correction related to a clerical discrepancy and did not demonstrate the absence of an insurance contract.
58. The Appellants further complained that no deed or letter of subrogation was produced. A separate instrument is not invariably necessary where the equitable right has arisen through payment and the proceedings are brought in the insured’s name. The material questions are whether the insured risk was covered, whether the loss occurred, whether the insurer paid and whether the third party was liable.
59. Those elements were sufficiently established. The trial court did not err in recognising the subrogated claim.
Special damages
60. The Court of Appeal in Hahn v Singh [1985] KLR 716 held that special damages must be specifically pleaded and strictly proved. In Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR, the Court reiterated that unsupported figures cannot sustain a claim for special damages and that credible evidence must establish the expenditure or loss claimed.
61. The Statement of Claim dated 14th June 2024 pleaded Kshs. 179,400 for repairs, Kshs. 93,500 for spare parts, Kshs. 6,380 for assessment, Kshs. 2,000 for re-assessment, Kshs. 550 for the NTSA search and Kshs. 15,000 as disbursements.
62. The trial court considered the assessment report dated 30th June 2021, the assessor’s invoice dated 7th July 2021, the re-inspection report dated 17th August 2021, the repair and parts invoices dated in September 2021, the payment vouchers and the NTSA invoice dated 11th June 2024.
63. The repair records established payment of Kshs. 179,400 and a net payment of Kshs. 91,888 for parts, giving a total of Kshs. 271,288. The payment records reflected a withholding-tax deduction from the gross parts invoice of Kshs. 93,500. The trial court adopted the lower net figure.
64. The court further awarded Kshs. 6,380 for assessment, Kshs. 2,000 for re-inspection and Kshs. 550 for the NTSA search. It rejected the Kshs. 15,000 disbursement claim. The Appellants’ assertion that the court awarded the entire Kshs. 296,830 is therefore not borne out by the judgment dated 25th November 2024.
65. The invoices were supported by the claims officer’s evidence and payment vouchers. The assessment and re-inspection reports connected the repairs to the accident vehicle. The expenditure of Kshs. 280,218 was therefore strictly proved to the degree required by the nature of the claim.
66. After deduction of the Respondent’s 30% contribution, the recoverable amount is Kshs. 196,152.60.
The counterclaim
67. The counterclaim dated 9th July 2024 was an independent claim. The Appellants were required to prove the Respondent’s negligence, the damage sustained by KBK 515E, the repairs undertaken and the amount paid.
68. The 2nd Appellant produced a receipt from Royton Motors dated 10th July 2021 for Kshs. 26,000. The record does not disclose an itemised invoice or a duly produced assessment report identifying the parts damaged, the necessary repairs and their relationship to the accident.
69. The 2nd Appellant also testified that the accident damage was minor and that she had intended to undertake general bodywork on the vehicle. That evidence left unresolved whether the entire Kshs. 26,000 related exclusively to damage caused on 19th June 2021.
70. The trial court dismissed the counterclaim on the ground that the 2nd Appellant could not benefit from her wrongdoing. That reasoning was incomplete. A finding of contributory negligence does not necessarily extinguish a counterclaim; proved damages may be reduced according to the claimant’s contribution.
71. The counterclaim nevertheless failed because the Kshs. 26,000 was not strictly proved as an accident-related loss. Its dismissal will therefore stand, although for the reasons stated in this judgment.
Disposition
72. The appeal succeeds only to the extent that the trial court failed to account for the Respondent’s contributory negligence. The findings on subrogation, the gross special damages and the dismissal of the counterclaim remain undisturbed.
73. Under section 27 of the Civil Procedure Act, costs follow the event unless the court, for good reason, orders otherwise. The Respondent remains substantially successful in the proceedings before the Small Claims Court and shall retain the costs awarded there. The Appellants have achieved partial success in this appeal, but have failed in their prayer for dismissal of the claim and entry of judgment on the counterclaim. Each party shall accordingly bear its own costs of the appeal.
74. In the result, the appeal is allowed in part and the Court makes the following orders:
a. The finding of 100% liability against the Appellants in the judgment dated 25th November 2024 is set aside and substituted with liability apportioned at 70% against the Appellants jointly and severally and 30% against the Respondent.
b. The assessment of gross special damages at Kshs. 280,218 is upheld.
c. After deducting the Respondent’s 30% contribution, judgment is entered for the Respondent against the Appellants jointly and severally for Kshs. 196,152.60.
d. The dismissal of the Appellants’ counterclaim is upheld.
e. The Respondent shall have interest on Kshs. 196,152.60 at court rates from the date the Statement of Claim was filed on 18th June 2024 until payment in full.
f. The Respondent shall retain the costs awarded in Machakos SCCC No. E725 of 2024.
g. Each party shall bear its own costs of this appeal.
75. The money deposited as security pursuant to the ruling dated 20th February 2025 shall be applied towards satisfaction of the decree as varied by this judgment, including accrued interest and the agreed or assessed costs of the proceedings before the Small Claims Court. Any balance shall be released to the Appellants.
It is so ordered.
READ AND PUBLISHED IN THE CTS THIS 28TH AUGUST 2026 IN THE PRESENCE OF:
BEFORE HON JOYCE GANDANI JUDGE