( Being an Appeal from the Judgment of Hon. M.R Chesoni (Adjudicator) delivered on 11 th September 2025 in Milimani SCCC No E3502 of 2025)
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( M.R. Chesoni, Adjudicator ) delivered on 11 th September 2025 in SCCC No. E3502 of 2025.
2. On 2 nd March 2025, the appellant was involved in a road accident involving himself and motor vehicle registration number KDQ 691F, registered in the respondent’s name, near Benedicta along the Eastern Bypass. As a result of the accident, the appellant claimed that he sustained the following injuries:
a. Blunt laceration injuries on the face.
b. Blunt abrasion injuries on the abdomen.
c. Fracture of the left femur.
d. Permanent disability assessed at 10%.
Factual History
3. Vide a statement of claim dated 7 th May 2025, the appellant lodged a suit, blaming the respondent for being negligent, resulting in the said accident and resultant injuries. Accordingly, he claimed general damages, Kshs. 100,000/- as costs for future medical expenses and special damages to the tune of Kshs. 200,000/- though they were particularized as follows: Kshs. 550/- for the motor vehicle search, Kshs. 3,000/- for the medical report and Kshs. 136,250/- being hospital expenses for which he executed a credit undertaking. More to this, he pleaded that he would be out of employment for at least 15 months as he underwent rehabilitation for the said 15 months. He further claimed that he would require Kshs. 100,000/- to remove the implants and claimed the said amount as future medical expenses.
4. The respondent denied the claim in her response dated 23 rd June 2025, averring that if the said accident occurred, it was wholly or substantially attributable to the appellant’s own negligence. She also pleaded that the respondent had previously filed Nrb. SCCC No. E138 of 2025 which was later unceremoniously withdrawn on 5 th June 2025. More to this, she stated that the Trial Court lacked jurisdiction in light of the decision in Jerusha Ogwari vs Ibrahim Aisha Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR).
5. CW1, Hillary Njagi Muchemi , adopted his witness statement and produced the documents as per his list of documents dated 7 th May 2025. It was his evidence that he was about to cross the road from the left side to the right side at a section where there was no zebra crossing, but there was a fly over that was far from where he was. He admitted that despite being a fundi / constructor earning approximately Kshs. 30,000/- per month, he had no proof of being a fundi or of his earnings as he was paid daily. He also admitted that he availed invoices for medical bills from Kenyatta National Hospital but that he did not pay the hospital bill as it was to be paid by someone else.
6. RW1, Amos Momanyi Kombo , acknowledged that the accident took place as per the appellant’s narration save to add that he was driving on the right side when the vehicle on his left applied emergency brakes because the appellant was crossing the road. It was his testimony that his vehicle was hit on the left side as he did not expect a pedestrian crossing the road. He only stopped about 50 metres from the point of impact to check on the appellant since he feared for his life viewing as a crowd had already started building up. He also added that the police were not at the scene.
7. By a Judgment delivered on 11 th September 2025, the Trial Court held that it had jurisdiction to hear and determine the matter and relied on various decisions including Ochieng vs Mshila (Civil Appeal E099 of 2024) [2025] KEHC 2660 (KLR) and Thuku vs Royal Media Services Ltd. (Civil Appeal E128 of 2024) [2025] KEHC 8972 (KLR). It was of the opinion that Section 12(1)(d) of the Small Claims Courts Act does not delineate the nature of personal injuries the Small Claims Court has jurisdiction over. Equally, the court held that Section 12(1)(d) of the Small Claims Courts Act was not declared unconstitutional.
8. On liability, the Trial Adjudicator held that the respondent’s driver breached his duty of care to the appellant since he hit him. That said, it was observed that the appellant and respondent had conflicting versions of how the accident occurred, with the former claiming that he was stationary when he was hit, while the latter testified that the former was crossing the road when he was hit. The police abstract was also inconclusive on who was to be blamed for the accident; no sketch maps or plans were produced to assist in determining the point of impact, and no independent witness was called. Consequently, the Trial Court, relying on Hussein Omar Fatah vs Lento Agencies [2006] KECA 388 (KLR), invoked and applied the principle that where there are two competing versions of how an accident occurred, the court will apportion liability equally between the parties and finding the respondent vicariously liable for the negligent acts of her driver.
9. As to quantum, the appellant was awarded general damages in the sum of Kshs. 850,000/- and Kshs. 100,000/- as future medical expenses to remove the K-nail in his left leg. It declined to award the claim for diminished earning capacity on the basis that the appellant failed to lead evidence demonstrating that he had a reduced capacity for work or that his chances of future employment were diminished as a result of the injuries sustained. The Trial Adjudicator equally declined to award special damages quantified at Kshs. 139,800/-, holding that the appellant had not specifically proved that he incurred these costs. In the Trial Court’s view, the credit undertaking/ credit request form was not a substitute for receipts, which ideally prove that payments were made. What is more, the credit undertaking was also addressed to Elizabeth, his alleged wife. Even if the same were true, the appellant did not incur those costs and was therefore entitled to the same. Accordingly, the appellant was awarded Kshs. 3,550/- as special damages for the medical report and the motor vehicle search expenses. The appellant was also awarded costs of the suit and interest from the date of delivery of the Judgment until payment in full.
The Appeal
10. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 22 nd September 2025 raising various grounds of appeal, that the Learned Trial Magistrate erred:
i. In law by writing a Judgment that is not based on proper evaluation and consideration of pleadings, evidence on record, submissions and applicable law and principles for awarding of damages.
ii. In law and fact in finding that the appellant was 50% liable despite evidence of full contribution of the respondent to the occurrence of the material accident.
iii. In law in failing to award the appellant Kshs. 139,800/- being special damages properly pleaded and proved.
11. Consequently, the appellant urged this Court to allow the appeal, set aside the award of the trial court, reassess liability and award of special damages, and for costs of the appeal.
The Appellant’s Submissions
12. In support of his appeal, the appellant filed his submissions dated 27 th January, 2026. He crystallized 2 issues for determination:
a. Whether the learned trial Magistrate erred in law in apportioning liability at 50:50 between the appellant and the respondent.
b. Whether the learned trial Magistrate erred in law in failing to award Kshs. 139,800/- despite the same having been pleaded and proved.
13. On the first issue, the appellant argued that a motorist owes a duty of care since she/he is in control of a potentially dangerous machine and merely crossing the road does not, by itself, make a pedestrian negligent. Furthermore, he argued that the police abstract clearly indicated that the accident was a hit-and-run, therefore a clear indicator of negligence on the part of the respondent’s driver. In his view, the Trial Court erred in apportioning liability equally between the parties since the respondent did not prove contributory negligence. He therefore urged this Court to apportion 100% liability to the respondent.
14. On special damages, the appellant posited that whereas the hospital bill was unpaid as at the time of filing the suit, the amount was incurred and owed to Kenyatta National Hospital. In his view, the Trial Court erred in failing to award the same merely because it was issued in the name of his wife, Elizabeth, adding that such an arrangement was common and did not displace the appellant’s obligations to the hospital. In this respect, he relied on Transac Ltd. & Anor. vs Nalangu Lokwait (Civil Appeal 156 of 2016) [2019] KEHC 7043 (KLR) for the proposition that unpaid medical bills may constitute special damages where there is evidence that they were incurred and secured by a guarantee, undertaking or similar arrangement. On the foregoing grounds, he urged this Court to allow the appeal.
The Respondent’s Submissions
15. Despite service, the respondent did not participate in the appeal.
ANALYSIS AND DETERMINATION
16. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. As this is a first appeal, this Court is duty-bound to re-evaluate the evidence and reach its own conclusions, as put more succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
17. Where the evidence presents two conflicting versions of how a road traffic accident occurred, and neither party establishes by concrete evidence that the other was solely responsible, the court may apportion liability equally between the parties. See Hussein Omar Farah vs Lento Agencies [2006] KECA 388 (KLR) and has subsequently been applied by the High Court in, inter alia , Njoroge vs Njoroge (Suing as the Legal Representative of the Estate of John Njoroge Meru- Deceased) (Civil Appeal E028 of 2023) [2026] KEHC 10738 (KLR); Tabuche & Another vs Muyaka (Civil Appeal E077 & E075 of 2025 (Consolidated)) [2026] KEHC 12416 (KLR); and M’Mkira & Another (Suing as Father and Next Friend of Samson Muthiora- Deceased) (Civil Appeal E062 of 2025) [2026] KEHC 13126 (KLR).
18. In this case, the appellant testified that he was standing by the Eastern Bypass when he was hit by the respondent’s motor vehicle, while RW1 averred that the appellant was crossing the road at an undesignated point. Faced with these contradictory versions of the accident, the trial court noted the same and applied the principle enunciated in the Hussein Omar Farah vs Lento Agencies Case .
19. Did the Trial Adjudicator fall into error as advanced by the appellant? I think not. As held in the Tabuche Case (Supra) , the appellant failed to summon the traffic police officers who visited the scene to adduce evidence and produce the sketch map. In the absence of any evidence in the form of a sketch map, it becomes difficult for the court to determine the point of impact and accordingly properly apportion liability. The Trial Adjudicator therefore properly invoked and relied on the age-old principle of equal apportionment of liability where the court cannot determine who was at fault in the collision. I therefore find no basis to interfere with the equal apportionment of liability.
20. The appellant further challenges the rejection of his claim for Kshs. 136,250/- in hospital expenses, adding that it was his wife Elizabeth who was to pay the same.
21. It is an established principle of law that, save for material damage claims where actual loss need not be incurred for special damages to be awarded ( See Nkuene Dairy Farmers Co-op Society Ltd. & Anor. vs Ndeiya [2010] KECA 20 (KLR)), for a litigant to be awarded special damages, they must establish the actual loss suffered. They cannot merely state or particularize figures and expect the court to award them. Differentiating between special and general damages, the Court of Appeal in Kenya Power & Lighting Company Ltd. vs Ganjoni Towers Ltd. (Civil Appeal E162 of 2024) [2024] KECA 1803 (KLR) clarified that while special damages are the precise amount of pecuniary loss, general damages constitutes the damage presumed to have likely arisen from the violation of a legal right or duty. To prove special damages, a litigant is required to produce documents or receipts as proof of the actual expenses incurred.
22. Likewise, in Housing Company of East Africa Ltd. vs Board of Trustees National Social Security Fund & 2 Others [2018] KECA 71 (KLR), the Court of Appeal stated that special damages are meant to compensate a claimant for actual loss incurred, which loss must be evidenced by actual receipts. In Vinayak vs Santokh & 2 Others (Civil Appeal (Application) 175 of 2017) [2023] KECA 1433 (KLR), the Court of Appeal held that a litigant claiming special damages must demonstrate that the payment was actually made or that the particular loss was actually suffered. These payments, in turn, are evidenced only by actual receipts.
23. Beyond appending a credit request form from Kenyatta National Hospital addressed to one Elizabeth and a final bill summary from the same institution, the appellant failed to prove the actual loss incurred as a result of the injuries he sustained.
24. Arguendo, the rationale in the Transac Ltd. & Anor. vs Nalangu Lokwait Case is good law; the appellant still had to demonstrate that the expenses constituted a pecuniary loss suffered by him. The appellant merely claimed, without more, that Elizabeth is his wife. Accordingly, the appellant failed to prove that there was an agency relationship between the appellant and Elizabeth, or that any proof of a loan/reimbursement obligation existed to warrant an award of special damages. An award of special damages thereby risks a situation of unjust enrichment, which this Court cannot countenance. In view of the foregoing, I am inclined to disallow the prayer for special damages.
ORDERS
25. Accordingly, and for the reasons set out above, the instant appeal is without merit and is accordingly dismissed. Viewing, as the respondent did not participate in these proceedings, there shall be no order as to costs.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( M.R. Chesoni, Adjudicator ) delivered on 11 th September 2025 in SCCC No. E3502 of 2025.
2. On 2 nd March 2025, the appellant was involved in a road accident involving himself and motor vehicle registration number KDQ 691F, registered in the respondent’s name, near Benedicta along the Eastern Bypass. As a result of the accident, the appellant claimed that he sustained the following injuries:
a. Blunt laceration injuries on the face.
b. Blunt abrasion injuries on the abdomen.
c. Fracture of the left femur.
d. Permanent disability assessed at 10%.
Factual History
3. Vide a statement of claim dated 7 th May 2025, the appellant lodged a suit, blaming the respondent for being negligent, resulting in the said accident and resultant injuries. Accordingly, he claimed general damages, Kshs. 100,000/- as costs for future medical expenses and special damages to the tune of Kshs. 200,000/- though they were particularized as follows: Kshs. 550/- for the motor vehicle search, Kshs. 3,000/- for the medical report and Kshs. 136,250/- being hospital expenses for which he executed a credit undertaking. More to this, he pleaded that he would be out of employment for at least 15 months as he underwent rehabilitation for the said 15 months. He further claimed that he would require Kshs. 100,000/- to remove the implants and claimed the said amount as future medical expenses.
4. The respondent denied the claim in her response dated 23 rd June 2025, averring that if the said accident occurred, it was wholly or substantially attributable to the appellant’s own negligence. She also pleaded that the respondent had previously filed Nrb. SCCC No. E138 of 2025 which was later unceremoniously withdrawn on 5 th June 2025. More to this, she stated that the Trial Court lacked jurisdiction in light of the decision in Jerusha Ogwari vs Ibrahim Aisha Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR).
5. CW1, Hillary Njagi Muchemi , adopted his witness statement and produced the documents as per his list of documents dated 7 th May 2025. It was his evidence that he was about to cross the road from the left side to the right side at a section where there was no zebra crossing, but there was a fly over that was far from where he was. He admitted that despite being a fundi / constructor earning approximately Kshs. 30,000/- per month, he had no proof of being a fundi or of his earnings as he was paid daily. He also admitted that he availed invoices for medical bills from Kenyatta National Hospital but that he did not pay the hospital bill as it was to be paid by someone else.
6. RW1, Amos Momanyi Kombo , acknowledged that the accident took place as per the appellant’s narration save to add that he was driving on the right side when the vehicle on his left applied emergency brakes because the appellant was crossing the road. It was his testimony that his vehicle was hit on the left side as he did not expect a pedestrian crossing the road. He only stopped about 50 metres from the point of impact to check on the appellant since he feared for his life viewing as a crowd had already started building up. He also added that the police were not at the scene.
7. By a Judgment delivered on 11 th September 2025, the Trial Court held that it had jurisdiction to hear and determine the matter and relied on various decisions including Ochieng vs Mshila (Civil Appeal E099 of 2024) [2025] KEHC 2660 (KLR) and Thuku vs Royal Media Services Ltd. (Civil Appeal E128 of 2024) [2025] KEHC 8972 (KLR). It was of the opinion that Section 12(1)(d) of the Small Claims Courts Act does not delineate the nature of personal injuries the Small Claims Court has jurisdiction over. Equally, the court held that Section 12(1)(d) of the Small Claims Courts Act was not declared unconstitutional.
8. On liability, the Trial Adjudicator held that the respondent’s driver breached his duty of care to the appellant since he hit him. That said, it was observed that the appellant and respondent had conflicting versions of how the accident occurred, with the former claiming that he was stationary when he was hit, while the latter testified that the former was crossing the road when he was hit. The police abstract was also inconclusive on who was to be blamed for the accident; no sketch maps or plans were produced to assist in determining the point of impact, and no independent witness was called. Consequently, the Trial Court, relying on Hussein Omar Fatah vs Lento Agencies [2006] KECA 388 (KLR), invoked and applied the principle that where there are two competing versions of how an accident occurred, the court will apportion liability equally between the parties and finding the respondent vicariously liable for the negligent acts of her driver.
9. As to quantum, the appellant was awarded general damages in the sum of Kshs. 850,000/- and Kshs. 100,000/- as future medical expenses to remove the K-nail in his left leg. It declined to award the claim for diminished earning capacity on the basis that the appellant failed to lead evidence demonstrating that he had a reduced capacity for work or that his chances of future employment were diminished as a result of the injuries sustained. The Trial Adjudicator equally declined to award special damages quantified at Kshs. 139,800/-, holding that the appellant had not specifically proved that he incurred these costs. In the Trial Court’s view, the credit undertaking/ credit request form was not a substitute for receipts, which ideally prove that payments were made. What is more, the credit undertaking was also addressed to Elizabeth, his alleged wife. Even if the same were true, the appellant did not incur those costs and was therefore entitled to the same. Accordingly, the appellant was awarded Kshs. 3,550/- as special damages for the medical report and the motor vehicle search expenses. The appellant was also awarded costs of the suit and interest from the date of delivery of the Judgment until payment in full.
The Appeal
10. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 22 nd September 2025 raising various grounds of appeal, that the Learned Trial Magistrate erred:
i. In law by writing a Judgment that is not based on proper evaluation and consideration of pleadings, evidence on record, submissions and applicable law and principles for awarding of damages.
ii. In law and fact in finding that the appellant was 50% liable despite evidence of full contribution of the respondent to the occurrence of the material accident.
iii. In law in failing to award the appellant Kshs. 139,800/- being special damages properly pleaded and proved.
11. Consequently, the appellant urged this Court to allow the appeal, set aside the award of the trial court, reassess liability and award of special damages, and for costs of the appeal.
The Appellant’s Submissions
12. In support of his appeal, the appellant filed his submissions dated 27 th January, 2026. He crystallized 2 issues for determination:
a. Whether the learned trial Magistrate erred in law in apportioning liability at 50:50 between the appellant and the respondent.
b. Whether the learned trial Magistrate erred in law in failing to award Kshs. 139,800/- despite the same having been pleaded and proved.
13. On the first issue, the appellant argued that a motorist owes a duty of care since she/he is in control of a potentially dangerous machine and merely crossing the road does not, by itself, make a pedestrian negligent. Furthermore, he argued that the police abstract clearly indicated that the accident was a hit-and-run, therefore a clear indicator of negligence on the part of the respondent’s driver. In his view, the Trial Court erred in apportioning liability equally between the parties since the respondent did not prove contributory negligence. He therefore urged this Court to apportion 100% liability to the respondent.
14. On special damages, the appellant posited that whereas the hospital bill was unpaid as at the time of filing the suit, the amount was incurred and owed to Kenyatta National Hospital. In his view, the Trial Court erred in failing to award the same merely because it was issued in the name of his wife, Elizabeth, adding that such an arrangement was common and did not displace the appellant’s obligations to the hospital. In this respect, he relied on Transac Ltd. & Anor. vs Nalangu Lokwait (Civil Appeal 156 of 2016) [2019] KEHC 7043 (KLR) for the proposition that unpaid medical bills may constitute special damages where there is evidence that they were incurred and secured by a guarantee, undertaking or similar arrangement. On the foregoing grounds, he urged this Court to allow the appeal.
The Respondent’s Submissions
15. Despite service, the respondent did not participate in the appeal.
ANALYSIS AND DETERMINATION
16. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. As this is a first appeal, this Court is duty-bound to re-evaluate the evidence and reach its own conclusions, as put more succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
17. Where the evidence presents two conflicting versions of how a road traffic accident occurred, and neither party establishes by concrete evidence that the other was solely responsible, the court may apportion liability equally between the parties. See Hussein Omar Farah vs Lento Agencies [2006] KECA 388 (KLR) and has subsequently been applied by the High Court in, inter alia , Njoroge vs Njoroge (Suing as the Legal Representative of the Estate of John Njoroge Meru- Deceased) (Civil Appeal E028 of 2023) [2026] KEHC 10738 (KLR); Tabuche & Another vs Muyaka (Civil Appeal E077 & E075 of 2025 (Consolidated)) [2026] KEHC 12416 (KLR); and M’Mkira & Another (Suing as Father and Next Friend of Samson Muthiora- Deceased) (Civil Appeal E062 of 2025) [2026] KEHC 13126 (KLR).
18. In this case, the appellant testified that he was standing by the Eastern Bypass when he was hit by the respondent’s motor vehicle, while RW1 averred that the appellant was crossing the road at an undesignated point. Faced with these contradictory versions of the accident, the trial court noted the same and applied the principle enunciated in the Hussein Omar Farah vs Lento Agencies Case .
19. Did the Trial Adjudicator fall into error as advanced by the appellant? I think not. As held in the Tabuche Case (Supra) , the appellant failed to summon the traffic police officers who visited the scene to adduce evidence and produce the sketch map. In the absence of any evidence in the form of a sketch map, it becomes difficult for the court to determine the point of impact and accordingly properly apportion liability. The Trial Adjudicator therefore properly invoked and relied on the age-old principle of equal apportionment of liability where the court cannot determine who was at fault in the collision. I therefore find no basis to interfere with the equal apportionment of liability.
20. The appellant further challenges the rejection of his claim for Kshs. 136,250/- in hospital expenses, adding that it was his wife Elizabeth who was to pay the same.
21. It is an established principle of law that, save for material damage claims where actual loss need not be incurred for special damages to be awarded ( See Nkuene Dairy Farmers Co-op Society Ltd. & Anor. vs Ndeiya [2010] KECA 20 (KLR)), for a litigant to be awarded special damages, they must establish the actual loss suffered. They cannot merely state or particularize figures and expect the court to award them. Differentiating between special and general damages, the Court of Appeal in Kenya Power & Lighting Company Ltd. vs Ganjoni Towers Ltd. (Civil Appeal E162 of 2024) [2024] KECA 1803 (KLR) clarified that while special damages are the precise amount of pecuniary loss, general damages constitutes the damage presumed to have likely arisen from the violation of a legal right or duty. To prove special damages, a litigant is required to produce documents or receipts as proof of the actual expenses incurred.
22. Likewise, in Housing Company of East Africa Ltd. vs Board of Trustees National Social Security Fund & 2 Others [2018] KECA 71 (KLR), the Court of Appeal stated that special damages are meant to compensate a claimant for actual loss incurred, which loss must be evidenced by actual receipts. In Vinayak vs Santokh & 2 Others (Civil Appeal (Application) 175 of 2017) [2023] KECA 1433 (KLR), the Court of Appeal held that a litigant claiming special damages must demonstrate that the payment was actually made or that the particular loss was actually suffered. These payments, in turn, are evidenced only by actual receipts.
23. Beyond appending a credit request form from Kenyatta National Hospital addressed to one Elizabeth and a final bill summary from the same institution, the appellant failed to prove the actual loss incurred as a result of the injuries he sustained.
24. Arguendo, the rationale in the Transac Ltd. & Anor. vs Nalangu Lokwait Case is good law; the appellant still had to demonstrate that the expenses constituted a pecuniary loss suffered by him. The appellant merely claimed, without more, that Elizabeth is his wife. Accordingly, the appellant failed to prove that there was an agency relationship between the appellant and Elizabeth, or that any proof of a loan/reimbursement obligation existed to warrant an award of special damages. An award of special damages thereby risks a situation of unjust enrichment, which this Court cannot countenance. In view of the foregoing, I am inclined to disallow the prayer for special damages.
ORDERS
25. Accordingly, and for the reasons set out above, the instant appeal is without merit and is accordingly dismissed. Viewing, as the respondent did not participate in these proceedings, there shall be no order as to costs.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.