Background
1. The Respondent in this appeal instituted proceedings before the Resident/ Adjudicator at Nairobi milimani in SCC E3038 OF 2024 Gohil Vinod Kamlesh –vs- Gabriel Muchira Mugoh & Francis Mwangi, The Respondent/ Claimant’s motor vehicle registration Number KCR 999D was lawfully being driven along lower Kabete Road Westlands when the Appellant/ Respondent’s motor vehicle Registration number KBJ 048C being driven by the authorized driver so carelessly and negligently that it caused it to collide and resulted to the claimant’s motor vehicle being knocked. Thereby causing extensive damage to the claimant’s motor vehicle
2. As a result of the said accident, the Respondent /Claimant motor vehicle was repaired by her insurer Occidental Insurance company Limited by virtue of being a policy holder of policy number comp/07/196970/07 issued by the said insurance provider. The total costs for repairs were assessed at Kshs 384,876/=.The assessment report was prepared by the Toyota Kenya.
3. The Claimant insurer occidental insurance repaired their motor vehicle as assessed. Thereafter through the Insurer a suit for material loss and compensation was filed at Milimani in SCC E3038 OF 2024 Gohilvinod Kamlesh –vs- Gabriel Muchira Mugoh & Francis Mwangi..
4. In their claim, the Respondent pleaded for special damages of Kshs.400,612/= . The claim was heard and judgement was entered on 23rd day August 2024 in favour of the claimant/Respondent as against the Appellant/ Respondent as follows-
a) Liability at 100%
b) Special damages -Kshs 385,612/=
c) Costs of the claim assessed at Kshs 40,000/=
d) Interest on (b) and (c) above at court rates from the date of judgement until payment in full.
The Appeal
5. Being aggrieved by the said judgement, the Appellant/ Respondent preferred the present appeal and set forth the following (5) five grounds in their memorandum of Appeal dated 4th September 2024:
a) THAT the learned magistrate erred in fact and in law in holding the Appellants 100% liable for the Road Traffic Accident that occurred on 29th November 2021 along lower Kabete Road involving the 1st Appellant Motor Vehicle Registration number KBJ 048Cand the Respondent’s motor vehicle registration number KCR 999D against the weight evidence which showed and proved that the claimant – the Respondent herein was at fault and blamed for accident.
b) THAT the learned Magistrate erred in law and in fact in finding that the Appellants failed to prove liability on the apart of the Respondent despite the Appellants uncontroverted evidence by the Appellants that the said accident was caused by the Respondent. Thus, requiring the Appellants to prove liability on the Respondent beyond reasonable doubt.
c) THAT the learned Magistrate erred in fact and in law by finding that the Respondent proved subrogation claim against the Appellants based on the assessment report exclusively.
d) THAT the learned magistrate erred in fact and in law by failing to analyze uncontroverted evidence adduced by the Appellants.
e) THAT the learned Magistrate erred in fact and in law by dismissing the Appellants Counter claim despites evidence to show that the Appellant’s motor vehicle was damaged and the same was repaired by the 1st Appellant.
6. The Appellant prayed that;-
a) This appeal be allowed and the decision of the Honorable and Learned Magistrate dated 23/8/2024 be set aside on its entirety.
b) The Respondents suit at the lower court be dismissed and judgement be entered for the Appellant.
c) Costs of the suit at the lower court and of the appeal
d) That this Honorable court do issue such orders and directions as it may deem fit and just to grant to meet the ends of justice.
The Submissions
7. The appeal was canvassed by way of written submission dated 15th August 2025 which this court has duly considered.
8. Counsel for the Appellant framed four (4) issues for determination being a) Whether the learned magistrate erred in fact and law in finding the Appellants 100% liable for the accident, b) Whether the Insurance established a subrogation Claim against the Appellants via the Respondent. c) Whether the Insurance is entitled to the claims as claimed in her statement of claim and d) Who bears costs?
9. Counsel submitted that the Appellant was found wholly liable for the damage of the Respondents motor vehicle based on the evidence on the police abstract which was never corroborated yet the was the respondent who sudden stoppage on a sloppy highway that caused the accident. Counsel further submitted that the position of the Appellant on how the accident happened was never controverted as the Respondent never testified in court. H urged the court to reverse the finding of the trial court and apportion liability at 100% against the Respondent.
10. On quantum, the learned counsel submitted that the sum of Kshs 385, 612 claimed was not sufficiently proved as the Respondent solely relied on the assessment report but did not provide receipts to support the claims. The Respondent also never testified to acknowledge that the same report and that her motor vehicle was repaired. Counsel also urged this court to reconsider the Appellants counter claim which was dismissed as it proved on a balance of probabilities.
Analysis and determination
11. I have considered, the grounds of appeal, the trial record and the written submissions filed by the appellant against the law.
12. This is a first appeal and it is now settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own finding and conclusions. [see Peters-vs- Sunday Post Limited {E.A 424}
13. The claim in this matter was instituted under the principle of subrogation. The court has pronounced itself in several decisions. Looking at the decided case of Kenya Airfreight Handling Ltd v Indemnity Insurance Company of North America & 3 others, Nairobi Civil Appeal No. 217 of 2000, where the Judges of Appeal cited the case of Smith (Plant Hire) v Mainwaring {1986} 2 Lloyds Reports 244 where it was held-
“ It has long been the law, where insurers have paid a claim, that they stand in the shoes of the assured in order to recover anything which is relevant to that claim. The law has long been that subrogation entitles the insurers to bring an action in the name of the assured against the wrong doer to recover anything that is recoverable. The reason for that is that the right of action is vested in the assured. The cases show that an action can be brought by the insurer in its own name where it has taken a legal assignment of the cause of action from the assured."
14. It is not in dispute that the policy holder in this matter was Gohil Vinod Kamlesh the Respondent herein. It is also not in dispute that the vehicle that was covered under the policy was registered in the name of the Respondent. It is further not in dispute that the insurance company settled the costs of repairs for the damage caused on the Respondent`s motor vehicle as a result of the accident.
15. From the reading of the record, the only issue for determination is whether the appeal herein is merited.
16. In finding for the Respondent, the trial magistrate noted that the occurrence of the accident is not in dispute and as to who caused the accident, the trial court noted in her judgement that the Appellant herein failed to present any evidence or call witnesses to support their claim that the accident resulted from the negligence of the Respondent. The trial court further stated that the Appellant failed to keep a safe distance to avoid any collision in case of a sudden brake or stop. The Appellant counsel in their submission averred that the trial learned magistrate failed to consider Rule 150 of the Highway Code which cautions the road users that sudden stopping causes accidents.
17. The Respondent called (3) three witnesses in support of their case. PW1, was the legal recoveries officer Occidental insurance, who confirmed that they had issued a comprehensive motor vehicle cover motor vehicle KCR 999D. She also confirmed that the claimant (Respondent herein) informed them that he was involved an accident on the 29/ Nov/2021 and had reported the same at the police station. They repaired the motor vehicle at a cost of Kshs 385,612/= after assessment by a licensed Assessors. PW2, a police officer from Spring valley police station produced the police abstract which he stated that he had filled in from the particulars on the O.B entered on the 29/11/2021. In re-exam he stated that Toyota Matatu KBJ 048C was to blame for the said accident as it failed to keep a safe distance. He also produced the Police abstract in court. PW3, was a licensed assessor’s from Kiptam who testified and produced the assessment reports.
18. The Appellants on their side only called one witness who was also the driver of the Toyota Matatu KBJ 048C, the motor vehicle which was involved in the road traffic accident. He averred that the accident occurred due to the sudden stoppage of the Respondent. He also filed a counter-claim apportioning liability to the Respondent.
19. It is clear from the evidence adduced before trial court that the Appellant herein hit the Respondent from behind thereby causing material damage to the Respondent’s motor vehicle which was repaired after being taken for assessment. It is therefore not in dispute that the two-motor vehicle being KCR 999G and KBJ 048C were involved in a road traffic accident when the Toyota Matatu KBJ 048C ramped into the Respondent’s motor vehicle.
20. However, proof that the accident occurred and that the Respondents motor vehicle was as the result of said accident is not sufficient evidence of liability. The Appellant was required to go ahead and adduce sufficient evidence to prove that it was the Respondent herein who by his negligent manner of driving caused the accident. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-
“Burden of Proof 107
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
21. It follows that the general rule is that the initial burden of proof lies on the claimant, the Respondent in this appeal, but the same may shift to the Appellant herein depending on the circumstances of the case. In the persuasive High Court case of Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: -
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side”
22. In this case, this Court is being called upon to interfere with the trial court’s finding on liability. In Khambi and Another vs. Mahithi and Another [1968] EA 70, it was held that:-
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
23. The Appellants herein equally had the responsibility of proving their counter- claim on the balance of probability and demonstrate that the accident was as a result of the Respondent’s negligence. Looking at the totality of the evidence the Appellant tendered before court, they failed to sufficiently prove liability on the part of the Respondent. I therefore concur with the finding of the learned trial magistrate on dismissing the Appellant’s counter- claim. The Appellant failed to prove their case on a balance of probabilities as compared to the Respondent’s case who even produced evidence in terms of exhibits in support of their claim. The documents were properly admitted as evidence before the trial court.
24. Putting reliance in the case of Monica M. Musyimi v Richard Macheru Irungu, HCCCNo.13 of 2009, where Justice Sergon referred to the treatise by K.L. Laibuta; Principles of Commercial Law at pg 254 where the author states as follows:-
“Having compensated the insured, the insurer is entitled to take advantage of and enforce any legal and equitable rights and remedies that the insured has or might have enforced against such third party whether in contract or in tort. To enforce such rights, the insurer brings the action in the name of the insured who must lend his name in return of an undertaking that he will not be personally liable for the costs in the action. The insurer is said to “step into the shoes” (stands in the place of the insured) and is subrogated to his rights. Subrogation is the substitution of one person for another so that the person substituted succeeds to and assumes the rights of the other’’
25. The Appellant in their pleadings had accused the Respondent of causing the accident due to her negligent manner of driving. As such the Appellants were required to prove what was negligent in the Respondent’s manner of driving. In the premises, I find that the Appellant failed to prove that the Respondent contributed to the occurrence of the accident. Therefore, the appeal fails in its entirety.
26. Accordingly, this court finds the appeal lacks merit and the same is hereby dismissed with no order as to costs.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
1. The Respondent in this appeal instituted proceedings before the Resident/ Adjudicator at Nairobi milimani in SCC E3038 OF 2024 Gohil Vinod Kamlesh –vs- Gabriel Muchira Mugoh & Francis Mwangi, The Respondent/ Claimant’s motor vehicle registration Number KCR 999D was lawfully being driven along lower Kabete Road Westlands when the Appellant/ Respondent’s motor vehicle Registration number KBJ 048C being driven by the authorized driver so carelessly and negligently that it caused it to collide and resulted to the claimant’s motor vehicle being knocked. Thereby causing extensive damage to the claimant’s motor vehicle
2. As a result of the said accident, the Respondent /Claimant motor vehicle was repaired by her insurer Occidental Insurance company Limited by virtue of being a policy holder of policy number comp/07/196970/07 issued by the said insurance provider. The total costs for repairs were assessed at Kshs 384,876/=.The assessment report was prepared by the Toyota Kenya.
3. The Claimant insurer occidental insurance repaired their motor vehicle as assessed. Thereafter through the Insurer a suit for material loss and compensation was filed at Milimani in SCC E3038 OF 2024 Gohilvinod Kamlesh –vs- Gabriel Muchira Mugoh & Francis Mwangi..
4. In their claim, the Respondent pleaded for special damages of Kshs.400,612/= . The claim was heard and judgement was entered on 23rd day August 2024 in favour of the claimant/Respondent as against the Appellant/ Respondent as follows-
a) Liability at 100%
b) Special damages -Kshs 385,612/=
c) Costs of the claim assessed at Kshs 40,000/=
d) Interest on (b) and (c) above at court rates from the date of judgement until payment in full.
The Appeal
5. Being aggrieved by the said judgement, the Appellant/ Respondent preferred the present appeal and set forth the following (5) five grounds in their memorandum of Appeal dated 4th September 2024:
a) THAT the learned magistrate erred in fact and in law in holding the Appellants 100% liable for the Road Traffic Accident that occurred on 29th November 2021 along lower Kabete Road involving the 1st Appellant Motor Vehicle Registration number KBJ 048Cand the Respondent’s motor vehicle registration number KCR 999D against the weight evidence which showed and proved that the claimant – the Respondent herein was at fault and blamed for accident.
b) THAT the learned Magistrate erred in law and in fact in finding that the Appellants failed to prove liability on the apart of the Respondent despite the Appellants uncontroverted evidence by the Appellants that the said accident was caused by the Respondent. Thus, requiring the Appellants to prove liability on the Respondent beyond reasonable doubt.
c) THAT the learned Magistrate erred in fact and in law by finding that the Respondent proved subrogation claim against the Appellants based on the assessment report exclusively.
d) THAT the learned magistrate erred in fact and in law by failing to analyze uncontroverted evidence adduced by the Appellants.
e) THAT the learned Magistrate erred in fact and in law by dismissing the Appellants Counter claim despites evidence to show that the Appellant’s motor vehicle was damaged and the same was repaired by the 1st Appellant.
6. The Appellant prayed that;-
a) This appeal be allowed and the decision of the Honorable and Learned Magistrate dated 23/8/2024 be set aside on its entirety.
b) The Respondents suit at the lower court be dismissed and judgement be entered for the Appellant.
c) Costs of the suit at the lower court and of the appeal
d) That this Honorable court do issue such orders and directions as it may deem fit and just to grant to meet the ends of justice.
The Submissions
7. The appeal was canvassed by way of written submission dated 15th August 2025 which this court has duly considered.
8. Counsel for the Appellant framed four (4) issues for determination being a) Whether the learned magistrate erred in fact and law in finding the Appellants 100% liable for the accident, b) Whether the Insurance established a subrogation Claim against the Appellants via the Respondent. c) Whether the Insurance is entitled to the claims as claimed in her statement of claim and d) Who bears costs?
9. Counsel submitted that the Appellant was found wholly liable for the damage of the Respondents motor vehicle based on the evidence on the police abstract which was never corroborated yet the was the respondent who sudden stoppage on a sloppy highway that caused the accident. Counsel further submitted that the position of the Appellant on how the accident happened was never controverted as the Respondent never testified in court. H urged the court to reverse the finding of the trial court and apportion liability at 100% against the Respondent.
10. On quantum, the learned counsel submitted that the sum of Kshs 385, 612 claimed was not sufficiently proved as the Respondent solely relied on the assessment report but did not provide receipts to support the claims. The Respondent also never testified to acknowledge that the same report and that her motor vehicle was repaired. Counsel also urged this court to reconsider the Appellants counter claim which was dismissed as it proved on a balance of probabilities.
Analysis and determination
11. I have considered, the grounds of appeal, the trial record and the written submissions filed by the appellant against the law.
12. This is a first appeal and it is now settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own finding and conclusions. [see Peters-vs- Sunday Post Limited {E.A 424}
13. The claim in this matter was instituted under the principle of subrogation. The court has pronounced itself in several decisions. Looking at the decided case of Kenya Airfreight Handling Ltd v Indemnity Insurance Company of North America & 3 others, Nairobi Civil Appeal No. 217 of 2000, where the Judges of Appeal cited the case of Smith (Plant Hire) v Mainwaring {1986} 2 Lloyds Reports 244 where it was held-
“ It has long been the law, where insurers have paid a claim, that they stand in the shoes of the assured in order to recover anything which is relevant to that claim. The law has long been that subrogation entitles the insurers to bring an action in the name of the assured against the wrong doer to recover anything that is recoverable. The reason for that is that the right of action is vested in the assured. The cases show that an action can be brought by the insurer in its own name where it has taken a legal assignment of the cause of action from the assured."
14. It is not in dispute that the policy holder in this matter was Gohil Vinod Kamlesh the Respondent herein. It is also not in dispute that the vehicle that was covered under the policy was registered in the name of the Respondent. It is further not in dispute that the insurance company settled the costs of repairs for the damage caused on the Respondent`s motor vehicle as a result of the accident.
15. From the reading of the record, the only issue for determination is whether the appeal herein is merited.
16. In finding for the Respondent, the trial magistrate noted that the occurrence of the accident is not in dispute and as to who caused the accident, the trial court noted in her judgement that the Appellant herein failed to present any evidence or call witnesses to support their claim that the accident resulted from the negligence of the Respondent. The trial court further stated that the Appellant failed to keep a safe distance to avoid any collision in case of a sudden brake or stop. The Appellant counsel in their submission averred that the trial learned magistrate failed to consider Rule 150 of the Highway Code which cautions the road users that sudden stopping causes accidents.
17. The Respondent called (3) three witnesses in support of their case. PW1, was the legal recoveries officer Occidental insurance, who confirmed that they had issued a comprehensive motor vehicle cover motor vehicle KCR 999D. She also confirmed that the claimant (Respondent herein) informed them that he was involved an accident on the 29/ Nov/2021 and had reported the same at the police station. They repaired the motor vehicle at a cost of Kshs 385,612/= after assessment by a licensed Assessors. PW2, a police officer from Spring valley police station produced the police abstract which he stated that he had filled in from the particulars on the O.B entered on the 29/11/2021. In re-exam he stated that Toyota Matatu KBJ 048C was to blame for the said accident as it failed to keep a safe distance. He also produced the Police abstract in court. PW3, was a licensed assessor’s from Kiptam who testified and produced the assessment reports.
18. The Appellants on their side only called one witness who was also the driver of the Toyota Matatu KBJ 048C, the motor vehicle which was involved in the road traffic accident. He averred that the accident occurred due to the sudden stoppage of the Respondent. He also filed a counter-claim apportioning liability to the Respondent.
19. It is clear from the evidence adduced before trial court that the Appellant herein hit the Respondent from behind thereby causing material damage to the Respondent’s motor vehicle which was repaired after being taken for assessment. It is therefore not in dispute that the two-motor vehicle being KCR 999G and KBJ 048C were involved in a road traffic accident when the Toyota Matatu KBJ 048C ramped into the Respondent’s motor vehicle.
20. However, proof that the accident occurred and that the Respondents motor vehicle was as the result of said accident is not sufficient evidence of liability. The Appellant was required to go ahead and adduce sufficient evidence to prove that it was the Respondent herein who by his negligent manner of driving caused the accident. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-
“Burden of Proof 107
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
21. It follows that the general rule is that the initial burden of proof lies on the claimant, the Respondent in this appeal, but the same may shift to the Appellant herein depending on the circumstances of the case. In the persuasive High Court case of Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: -
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side”
22. In this case, this Court is being called upon to interfere with the trial court’s finding on liability. In Khambi and Another vs. Mahithi and Another [1968] EA 70, it was held that:-
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
23. The Appellants herein equally had the responsibility of proving their counter- claim on the balance of probability and demonstrate that the accident was as a result of the Respondent’s negligence. Looking at the totality of the evidence the Appellant tendered before court, they failed to sufficiently prove liability on the part of the Respondent. I therefore concur with the finding of the learned trial magistrate on dismissing the Appellant’s counter- claim. The Appellant failed to prove their case on a balance of probabilities as compared to the Respondent’s case who even produced evidence in terms of exhibits in support of their claim. The documents were properly admitted as evidence before the trial court.
24. Putting reliance in the case of Monica M. Musyimi v Richard Macheru Irungu, HCCCNo.13 of 2009, where Justice Sergon referred to the treatise by K.L. Laibuta; Principles of Commercial Law at pg 254 where the author states as follows:-
“Having compensated the insured, the insurer is entitled to take advantage of and enforce any legal and equitable rights and remedies that the insured has or might have enforced against such third party whether in contract or in tort. To enforce such rights, the insurer brings the action in the name of the insured who must lend his name in return of an undertaking that he will not be personally liable for the costs in the action. The insurer is said to “step into the shoes” (stands in the place of the insured) and is subrogated to his rights. Subrogation is the substitution of one person for another so that the person substituted succeeds to and assumes the rights of the other’’
25. The Appellant in their pleadings had accused the Respondent of causing the accident due to her negligent manner of driving. As such the Appellants were required to prove what was negligent in the Respondent’s manner of driving. In the premises, I find that the Appellant failed to prove that the Respondent contributed to the occurrence of the accident. Therefore, the appeal fails in its entirety.
26. Accordingly, this court finds the appeal lacks merit and the same is hereby dismissed with no order as to costs.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of: