Introduction.
1. In her decision of 18th February 2025, the Learned Magistrate, found the Appellant wholly liable for the accident and entered Judgment in favour of the Respondent against the Appellant in the following terms: -
Total cost on motor vehicle repair Kshs 197,780/=
Assessment and re-inspection cost Kshs 7,540/=
Tracing charges Kshs 31,270/=
Towing costs Kshs 4,000/=
Total Kshs 240,590/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated and filed on 14th March 2025. He relied on six (6) grounds of appeal.
3. Appellant’s written submissions are dated 16th January 2025 while those of the Respondent are dated 9th March 2026. The Judgment herein is based on the said written submissions, which both parties relied upon in their entirety.
Analysis of the Appeal.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. This was well elaborated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that all the grounds of appeal were related, and the issues that had been placed before it for determination are: -
a. Whether the Learned Trial Magistrate erred in finding the Appellant 100% liable for the accident; and
b. Whether the special damages awarded was proved.
6. The court deemed it prudent to address the issue under the following heads.
Liability.
7. The Appellant submitted that the claim was not proved since the driver of the motor vehicle, one Simon Wachira Waweru, though he filed his witness statement, never testified. Further, the Respondent did not testify to ascertain if the claim was filed with his consent and whether he was fully indemnified since subrogation claim could only be instituted in the name of the insured with his consent. He pointed out that PW1 and PW3 were paid to attend court and PW1 testified that he was not the investigating officer and failed to produce police records.
8. The Appellant submitted that without the police records and the evidence by the Respondent and the driver, there was no proof that an accident involving the Respondent's motor vehicle ever occurred as alleged, that the Respondent suffered any loss or damage as a result of the alleged accident and that the Respondent was indemnified.
9. The Appellant relied on Sections 107 and 109 of the Evidence Act and asserted that negligence must be proved to establish liability and the Respondent’s allegations on Liability were devoid of evidence. He relied on several cases to support his case.
10. On his part, the Respondent invoked Section 78 of the Civil Procedure Act, which empowered the first appellate court to re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions and to emphasis on this, he cited Peter M. Kariuki vs Attorney General [2014] eKLR and Abdul vs Mokua (Civil Appeal E077 of 2023) [2025] KEHC 4105 (KLR).
11. The Respondent relied on Sections 107, 108 and 109 of the Evidence Act and submitted that he proved his claim on a balance of probabilities since the evidence presented before the trial court overwhelmingly supported his claim. He submitted that the trial court considered the evidence and correctly found that the Respondent had established his claim on the balance of probabilities.
12. He submitted that he proved his case through the testimony of PW1 who produced the police abstract and gave a detailed account on how the accident occurred attributing blame to the Appellant's motor vehicle, PW2 who produced receipts and supporting documents and confirmed that the claim was brought under the doctrine of subrogation with the insurer having indemnified the Respondent and PW3 who produced the assessment report confirming the extensive damage to his vehicle caused by the collision.
13. He pointed out that the Appellant failed to call any witnesses to dispute the Respondent's evidence which left his case entirely unchallenged. It was his case that where a defendant denied a claim but failed to call witnesses or produce evidence, the plaintiff's evidence remained uncontroverted, and the defence could not succeed and he relied on case law to emphasis on this point.
14. It is his submission that it was more probable than not that the accident occurred as described in the Respondent's version of events which was supported by evidence of PW1 and PW3. He asserted that the balance of probabilities standard required the court to evaluate the evidence and determine which version of events was more likely than not to have occurred.
15. He submitted that his motor vehicle was hit from behind as a direct result of the Appellant's negligent driving and the inevitable inference was that the Appellant, or his driver, failed to maintain a safe following distance and did not keep a proper lookout, thereby causing the collision and such conduct constituted negligence under common law. He argued that as established in Atanga vs Rojeh (Civil Appeal E195 of 2023) [2025] КЕНС 6067, a rear-end collision created a prima facie case of negligence against the driver from behind, who was generally presumed at fault unless exceptional circumstances were proven.
16. On the assertion that he did not testify, the Respondent argued that this did not carry any weight since the trial court's finding of liability was grounded on credible and uncontroverted evidence and testimony from the Respondent's three key witnesses who established that the Appellant's vehicle was the cause of the chain-reaction collision that resulted in damaging his vehicle.
17. A perusal of the trial court record showed that the Respondent filed a plaint dated 16th January 2020 where he averred that he was the owner of motor vehicle registration no. KCB 712J while the Appellant herein was the owner of motor vehicle registration no. KCE 404N. He averred that on or about 16th January 2017, along Kiambu road, the Appellant or his authorized agent carelessly drove the motor vehicle KCE 404N and failed to drive at a manageable speed thereby ramming into motor vehicle registration no. KBZ 408U which as a consequence rammed into his motor vehicle KCB 712J causing extensive damage.
18. The Respondent blamed the Appellant for causing the accident and he claimed that he sustained loss and damage amounting to Kshs 240,000/= being assessors fees, repair charges, tracer fees and towing charges. He also claimed that GA Insurance Limited fully indemnified the loss hence it was entitled to recover loss under the doctrine of subrogation.
19. The Appellant filed a statement of defence dated 25th June 2020 and he denied the occurrence of the accident and that if at all the accident occurred, the same was wholly caused or contributed to by the Respondent’s negligence. He also denied the particulars of loss and damage.
20. The matter proceeded for hearing with the Respondent calling three witnesses. PW1, Jesse Mwololo testified that he was attached at Pangani police station and he produced police abstract as Pexhibit2. He stated that the Appellant’s motor vehicle, KCE 404E was blamed for the accident after investigations. He testified on cross examination that the accident occurred along Kiambu road and that he did not investigate the matter.
21. PW2, Patrick Kanyi, a legal officer at GA insurance adopted his witness statement dated 20th March 2024 where he claimed that the insurance incurred expenses totaling Kshs 240,590/= as particularized earlier. He also produced Respondent’s documents.
22. PW3, Michael Mwangi Lunjugi stated that he was an assessor and did an assessment under GA insurance instructions for motor vehicle registration no. KCB 712J. He produced the report as Pexhibit4 and 5 and fee note as Pexhibit6.
23. The Appellant’s case was closed without calling any witness at the Trial Court.
24. After carefully considering the evidence before the trial court and parties’ submissions it is my considered view that the Trial Court did not err in finding the Appellant liable for the accident. The Respondent called a witness who was a police officer who produced records to show that the Appellant’s motor vehicle was blamed for the accident after investigations.
25. The general rule is that the initial burden of proof at the Trial Court lied on the Respondent herein and once he availed the evidence from the police officer then the burden shifted to the Appellant herein. This was outlined in the persuasive case of Evans Nyakwana v 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."
27. The standard of proof in civil cases is proof on a balance of probabilities, as clearly demonstrated in the above case. The question therefore is not whether the Court is assured about what happened, but whether the party bearing the burden has persuaded the Court that their version of events is more likely than not to be true. From the evidence analyzed above, the Appellant did not avail any evidence to support their averments therefore the decision to find them liable for the accident is affirmed by this Court.
28. I hereby uphold the finding of the Trial that the Appellant was indeed liable 100% for the accident.
29. On the argument by the Appellant that Respondent failed to avail evidence to show that he consented to the filing of the Claim at the Trial Court, I agree with the Respondent that the fact that he filed a verifying affidavit which demonstrated that he understood and approved the filing of the claim by the insurer on their behalf. As such, the subrogation suit was properly instituted with full knowledge and approval of the Respondent. Further, there was no dispute regarding the existence of a valid insurer- insured relationship between him and GA Insurance. The assessment reports and receipts also showed that the insurer covered the full cost of repairs.
30. On the issue that the learned magistrate failed appreciate that there was no proof that the Respondent was indemnified by the insurance, from the evidence availed from page 10 of the record of appeal, there is sufficient evidence that the GA insurance indemnified the Respondent, there are request payment vouchers on page 25 and 26 bear the cheques number, I am satisfied that that is evidence enough as has been held by the High Court on numerous occasions.
31. This Court relies on the decision of Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
Quantum.
32. On the issue of quantum, it was the Appellant’s assertion that for an appellate court to disturb award of damages, court must be satisfied that either the trial court, in assessing the damages, took into account an irrelevant factor, or left out a relevant one; or that the awarded amount was inordinately high or inordinately low or that it must be wholly erroneous estimate of the damage. He submitted that since the issue of liability had failed, he did not wish to be academic under this head.
33. On his part, the Respondent submitted that for a subrogation claim to succeed, the insurer must show that it compensated the insured for loss and it sought now to step into the insured's shoes to recover that outlay from the responsible third party. It cited relevant case laws to support its position.
34. I will now look at the breakdown of the amounts awarded; I am satisfied that the assessors fees, repairs charges and towing charges were deserved having been proved as the same was specifically pleaded, and fully proven through the evidence and supporting documents. However, I am not satisfied that the costs of Tracing fee was a necessary cost simply because it was to be borne by the Appellant, on this issue this Court is not persuaded that the same was necessary, there are other cheaper ways of ascertaining the status of the Appellant without physically doing all that. This Court is persuaded by the Decision of Mrima J in Kiarie v Shadrack and Sons Limited & another :High Court Civil Appeal E762 of 2024, where he held that:
‘’The cost in issue was an unnecessary expense. He ought not to have incurred it simply because liability was on the Respondent.’’
35. Having found the Appellant liable for the accident, it follows that the Respondent was rightly awarded the damages by the Trial Court. It is my finding that the Respondent was able to prove that indeed it deserved the Orders. In the Plaint and the supporting documents, the Respondent particularized the loss and damage incurred and availed documentary evidence to support the same, having analyzed the proceedings and the record of appeal, I am satisfied that the Trial Court was right in awarding all the prayers save for the tracer’s fee.
36. There is sufficient evidence that the motor vehicle was covered by insurance and that GA Insurance indemnified the Respondent. The list of documents at the Trial Court dated 16th January 2026 (from page 10 of the record of appeal) elaborated and supported the Respondent’s case to that effect. In any event the Appellant has not found it fit to place any evidence to support their ground of appeal.
Disposition:
In the end, the following final orders hereby issue: -
(i) The Appeal is partly merited.
(ii) The award of Assessor’s fees of Kshs.7,540.00, Repairs Charges of Kshs.197,780.00 and Towing charges of Kshs.4,000.00 are affirmed.
(iii) The prayer for Tracer fees of Kshs.31,270/= is set aside.
(iv) Each party shall bear their costs.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Luchemo Learned Counsel for the Appellant.
Wangare, Learned Counsel for the 1st Respondent.
Michael - Court Assistant.
1. In her decision of 18th February 2025, the Learned Magistrate, found the Appellant wholly liable for the accident and entered Judgment in favour of the Respondent against the Appellant in the following terms: -
Total cost on motor vehicle repair Kshs 197,780/=
Assessment and re-inspection cost Kshs 7,540/=
Tracing charges Kshs 31,270/=
Towing costs Kshs 4,000/=
Total Kshs 240,590/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated and filed on 14th March 2025. He relied on six (6) grounds of appeal.
3. Appellant’s written submissions are dated 16th January 2025 while those of the Respondent are dated 9th March 2026. The Judgment herein is based on the said written submissions, which both parties relied upon in their entirety.
Analysis of the Appeal.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. This was well elaborated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the respective parties’ written submissions, it appeared to this court that all the grounds of appeal were related, and the issues that had been placed before it for determination are: -
a. Whether the Learned Trial Magistrate erred in finding the Appellant 100% liable for the accident; and
b. Whether the special damages awarded was proved.
6. The court deemed it prudent to address the issue under the following heads.
Liability.
7. The Appellant submitted that the claim was not proved since the driver of the motor vehicle, one Simon Wachira Waweru, though he filed his witness statement, never testified. Further, the Respondent did not testify to ascertain if the claim was filed with his consent and whether he was fully indemnified since subrogation claim could only be instituted in the name of the insured with his consent. He pointed out that PW1 and PW3 were paid to attend court and PW1 testified that he was not the investigating officer and failed to produce police records.
8. The Appellant submitted that without the police records and the evidence by the Respondent and the driver, there was no proof that an accident involving the Respondent's motor vehicle ever occurred as alleged, that the Respondent suffered any loss or damage as a result of the alleged accident and that the Respondent was indemnified.
9. The Appellant relied on Sections 107 and 109 of the Evidence Act and asserted that negligence must be proved to establish liability and the Respondent’s allegations on Liability were devoid of evidence. He relied on several cases to support his case.
10. On his part, the Respondent invoked Section 78 of the Civil Procedure Act, which empowered the first appellate court to re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions and to emphasis on this, he cited Peter M. Kariuki vs Attorney General [2014] eKLR and Abdul vs Mokua (Civil Appeal E077 of 2023) [2025] KEHC 4105 (KLR).
11. The Respondent relied on Sections 107, 108 and 109 of the Evidence Act and submitted that he proved his claim on a balance of probabilities since the evidence presented before the trial court overwhelmingly supported his claim. He submitted that the trial court considered the evidence and correctly found that the Respondent had established his claim on the balance of probabilities.
12. He submitted that he proved his case through the testimony of PW1 who produced the police abstract and gave a detailed account on how the accident occurred attributing blame to the Appellant's motor vehicle, PW2 who produced receipts and supporting documents and confirmed that the claim was brought under the doctrine of subrogation with the insurer having indemnified the Respondent and PW3 who produced the assessment report confirming the extensive damage to his vehicle caused by the collision.
13. He pointed out that the Appellant failed to call any witnesses to dispute the Respondent's evidence which left his case entirely unchallenged. It was his case that where a defendant denied a claim but failed to call witnesses or produce evidence, the plaintiff's evidence remained uncontroverted, and the defence could not succeed and he relied on case law to emphasis on this point.
14. It is his submission that it was more probable than not that the accident occurred as described in the Respondent's version of events which was supported by evidence of PW1 and PW3. He asserted that the balance of probabilities standard required the court to evaluate the evidence and determine which version of events was more likely than not to have occurred.
15. He submitted that his motor vehicle was hit from behind as a direct result of the Appellant's negligent driving and the inevitable inference was that the Appellant, or his driver, failed to maintain a safe following distance and did not keep a proper lookout, thereby causing the collision and such conduct constituted negligence under common law. He argued that as established in Atanga vs Rojeh (Civil Appeal E195 of 2023) [2025] КЕНС 6067, a rear-end collision created a prima facie case of negligence against the driver from behind, who was generally presumed at fault unless exceptional circumstances were proven.
16. On the assertion that he did not testify, the Respondent argued that this did not carry any weight since the trial court's finding of liability was grounded on credible and uncontroverted evidence and testimony from the Respondent's three key witnesses who established that the Appellant's vehicle was the cause of the chain-reaction collision that resulted in damaging his vehicle.
17. A perusal of the trial court record showed that the Respondent filed a plaint dated 16th January 2020 where he averred that he was the owner of motor vehicle registration no. KCB 712J while the Appellant herein was the owner of motor vehicle registration no. KCE 404N. He averred that on or about 16th January 2017, along Kiambu road, the Appellant or his authorized agent carelessly drove the motor vehicle KCE 404N and failed to drive at a manageable speed thereby ramming into motor vehicle registration no. KBZ 408U which as a consequence rammed into his motor vehicle KCB 712J causing extensive damage.
18. The Respondent blamed the Appellant for causing the accident and he claimed that he sustained loss and damage amounting to Kshs 240,000/= being assessors fees, repair charges, tracer fees and towing charges. He also claimed that GA Insurance Limited fully indemnified the loss hence it was entitled to recover loss under the doctrine of subrogation.
19. The Appellant filed a statement of defence dated 25th June 2020 and he denied the occurrence of the accident and that if at all the accident occurred, the same was wholly caused or contributed to by the Respondent’s negligence. He also denied the particulars of loss and damage.
20. The matter proceeded for hearing with the Respondent calling three witnesses. PW1, Jesse Mwololo testified that he was attached at Pangani police station and he produced police abstract as Pexhibit2. He stated that the Appellant’s motor vehicle, KCE 404E was blamed for the accident after investigations. He testified on cross examination that the accident occurred along Kiambu road and that he did not investigate the matter.
21. PW2, Patrick Kanyi, a legal officer at GA insurance adopted his witness statement dated 20th March 2024 where he claimed that the insurance incurred expenses totaling Kshs 240,590/= as particularized earlier. He also produced Respondent’s documents.
22. PW3, Michael Mwangi Lunjugi stated that he was an assessor and did an assessment under GA insurance instructions for motor vehicle registration no. KCB 712J. He produced the report as Pexhibit4 and 5 and fee note as Pexhibit6.
23. The Appellant’s case was closed without calling any witness at the Trial Court.
24. After carefully considering the evidence before the trial court and parties’ submissions it is my considered view that the Trial Court did not err in finding the Appellant liable for the accident. The Respondent called a witness who was a police officer who produced records to show that the Appellant’s motor vehicle was blamed for the accident after investigations.
25. The general rule is that the initial burden of proof at the Trial Court lied on the Respondent herein and once he availed the evidence from the police officer then the burden shifted to the Appellant herein. This was outlined in the persuasive case of Evans Nyakwana v 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."
27. The standard of proof in civil cases is proof on a balance of probabilities, as clearly demonstrated in the above case. The question therefore is not whether the Court is assured about what happened, but whether the party bearing the burden has persuaded the Court that their version of events is more likely than not to be true. From the evidence analyzed above, the Appellant did not avail any evidence to support their averments therefore the decision to find them liable for the accident is affirmed by this Court.
28. I hereby uphold the finding of the Trial that the Appellant was indeed liable 100% for the accident.
29. On the argument by the Appellant that Respondent failed to avail evidence to show that he consented to the filing of the Claim at the Trial Court, I agree with the Respondent that the fact that he filed a verifying affidavit which demonstrated that he understood and approved the filing of the claim by the insurer on their behalf. As such, the subrogation suit was properly instituted with full knowledge and approval of the Respondent. Further, there was no dispute regarding the existence of a valid insurer- insured relationship between him and GA Insurance. The assessment reports and receipts also showed that the insurer covered the full cost of repairs.
30. On the issue that the learned magistrate failed appreciate that there was no proof that the Respondent was indemnified by the insurance, from the evidence availed from page 10 of the record of appeal, there is sufficient evidence that the GA insurance indemnified the Respondent, there are request payment vouchers on page 25 and 26 bear the cheques number, I am satisfied that that is evidence enough as has been held by the High Court on numerous occasions.
31. This Court relies on the decision of Court of appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] KECA 20 (KLR)held that;
“In our view special damages in material damage claim need not be shown to have actually been incurred. The Claimant is only required to show the extent of the damage and what it would cost to restore the damage item as near as possible to the condition it was before the damage complained of’’
Quantum.
32. On the issue of quantum, it was the Appellant’s assertion that for an appellate court to disturb award of damages, court must be satisfied that either the trial court, in assessing the damages, took into account an irrelevant factor, or left out a relevant one; or that the awarded amount was inordinately high or inordinately low or that it must be wholly erroneous estimate of the damage. He submitted that since the issue of liability had failed, he did not wish to be academic under this head.
33. On his part, the Respondent submitted that for a subrogation claim to succeed, the insurer must show that it compensated the insured for loss and it sought now to step into the insured's shoes to recover that outlay from the responsible third party. It cited relevant case laws to support its position.
34. I will now look at the breakdown of the amounts awarded; I am satisfied that the assessors fees, repairs charges and towing charges were deserved having been proved as the same was specifically pleaded, and fully proven through the evidence and supporting documents. However, I am not satisfied that the costs of Tracing fee was a necessary cost simply because it was to be borne by the Appellant, on this issue this Court is not persuaded that the same was necessary, there are other cheaper ways of ascertaining the status of the Appellant without physically doing all that. This Court is persuaded by the Decision of Mrima J in Kiarie v Shadrack and Sons Limited & another :High Court Civil Appeal E762 of 2024, where he held that:
‘’The cost in issue was an unnecessary expense. He ought not to have incurred it simply because liability was on the Respondent.’’
35. Having found the Appellant liable for the accident, it follows that the Respondent was rightly awarded the damages by the Trial Court. It is my finding that the Respondent was able to prove that indeed it deserved the Orders. In the Plaint and the supporting documents, the Respondent particularized the loss and damage incurred and availed documentary evidence to support the same, having analyzed the proceedings and the record of appeal, I am satisfied that the Trial Court was right in awarding all the prayers save for the tracer’s fee.
36. There is sufficient evidence that the motor vehicle was covered by insurance and that GA Insurance indemnified the Respondent. The list of documents at the Trial Court dated 16th January 2026 (from page 10 of the record of appeal) elaborated and supported the Respondent’s case to that effect. In any event the Appellant has not found it fit to place any evidence to support their ground of appeal.
Disposition:
In the end, the following final orders hereby issue: -
(i) The Appeal is partly merited.
(ii) The award of Assessor’s fees of Kshs.7,540.00, Repairs Charges of Kshs.197,780.00 and Towing charges of Kshs.4,000.00 are affirmed.
(iii) The prayer for Tracer fees of Kshs.31,270/= is set aside.
(iv) Each party shall bear their costs.
Orders Accordingly
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Luchemo Learned Counsel for the Appellant.
Wangare, Learned Counsel for the 1st Respondent.
Michael - Court Assistant.