(Appeal from the Judgment of Hon. F. Makoyo (PM) in the Principal Magistrate’s Court at Kilungu, Civil Case No.144 of 2014, delivered on 25th April 2023)
1. The Respondent PHOENIX OF E.A ASSURANCE CO. LTD filed Principal Magistrate’s Court at Kilungu, Civil Case No.144 of 2014 seeking special damages of Kshs 910,882/= which it had incurred in compensating its insured motor vehicle KAY 904D. It averred that on or about 30/11/2011, its authorized driver was lawfully driving the said motor vehicle along the Nairobi-Mombasa Road at Salama when it was hit on the rear by motor vehicle KBF 640D which was driven/managed/controlled negligently. The Respondent also prayed for costs of the suit and interest.
2. The Appellant filed a statement of defence denying the allegations in the plaint and putting the Respondent to strict proof thereof. He averred that if the accident occurred as alleged, it was solely caused by or substantially contributed to by the negligence of the owner/driver/servant of motor vehicle KAY 904D.
3. The Respondent replied to the defence where it reiterated the contents of the plaint and denied all the particulars of negligence.
4. The matter proceeded to full trial and judgment was delivered in favor of the Respondent in the sum of Kshs 863,006/= plus costs and interest from the date of filing suit.
5. Aggrieved by the judgment, the Appellant filed this appeal and raised the following grounds;
a) The learned trial magistrate erred in law and fact in holding the Appellant 100% liable whereas the Respondent substantially contributed to the accident.
b) The learned trial magistrate erred in law and fact in finding that the Respondent was entitled to award of Kshs 863,006 as special damages which was not proved.
c) The learned trial magistrate erred in law and fact by admitting as evidence the Assessment Report which was not admissible in law.
d) The learned trial magistrate erred in law and fact in finding that the Respondent had proved its case against the Appellant on a balance of probability.
e) The learned trial magistrate erred in law and fact by arriving at the conclusion he did while arriving on extraneous material and or facts which did not form part of the proceedings.
f) The learned trial magistrate erred in law and fact by applying interest on the sum of Kshs 863,006 from the date of filing the suit until full payment.
g) The learned trial magistrate erred in law and fact in finding that the Appellant’s motor vehicle KBF 640D was to blame when in fact there was no such evidence on record.
6. The parties elected to canvass the appeal through written submissions and filed their respective submissions.
Submissions by the Appellant
7. The Appellant identified the issues for determination to be;
a. Whether the learned trial magistrate erred and misdirected himself by holding the driver of motor vehicle KBF 640D wholly liable for the accident.
b. Whether the learned trial magistrate erred in finding that the Respondent proved ownership of motor vehicle KAY 904D.
c. Whether the learned trial magistrate erred in finding that the Respondent was entitled to the prayers granted.
d. Whether the Respondent proved its case to the required standard.
8. As to whether the driver of KBF 640D was wholly liable for the accident, it was submitted that the evidence on record by PW1 and 2 was not conclusive that the said driver was wholly to blame for the accident. It was contended that KAY 904D was extensively damaged from the front more than the back meaning that it hit the bus which had stopped to pick passengers first then reversed and hit the Appellant. That the accident report form produced as Respondent’s exhibit No. 1 shows that there were three motor vehicles involved in the accident i.e., KBF 640D, KAY 904D and KBE 869P. That, during cross-examination, the Respondent confirmed that the driver of motor vehicle KBE 869P did not wait for the police officers to come to the scene because he drove off after the accident and he further confirmed that the driver of KBF 640D was never charged with any traffic offence in regard to the accident.
9. It was submitted that the Appellant’s evidence was to the effect that his motor vehicle was parked at a bus stage and was not in motion when the driver of KAY 904D rammed into the bus and reversed thereby hitting motor vehicle KBF 640D which was stationary. It was submitted that the learned trial magistrate misdirected himself for basing his finding solely on the fact that the Respondent claimed to have been hit from behind. Reliance was placed on Multiple Hauliers (E.A) Ltd -vs- Ustus Mutua Malundu & 2 others [2017] eKLR where the judge held;
“That clearly sits in consonance with the presumption that he who hits another from behind is IPSO FACTO negligent. However, a court of law makes its determination based on facts as pleaded by the parties and supported by the evidence adduced in support of such pleadings.…Clearly and surely the finding by the trial court cannot be supported even if they be based on facts. However, they do not support the facts, but pervert the facts proved in evidence and it behoves this court to correct that error by setting aside the finding on liability.”
10. It was submitted that the police officer, PW2, did not visit the scene but only produced the police abstract in which the investigating officer had blamed the driver of KBF 640D. That, she did not produce the OB extract or sketch map showing who was to blame for the accident hence the evidence on record was not enough to wholly blame the driver of KBF 640D for the accident. Reliance was placed on Kennedy Nyangoya -vs- Bash Hauliers [2016] eKLR where the court stated;
“In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.
11. Further reliance was placed on Helle Sejer Hansen & 2 others -vs- Julius Kakungi Mukavi [2020] eKLR where the court stated;
“The Police abstract confirmed that a report of occurrence of an accident was made. It was filled from the record filed by police officers who attended the scene of the accident and made the record on how that accident occurred. It was therefore a true police record of events regarding that accident, though it may not be conclusive evidence of negligence. It however becomes relevant when considered alongside other evidence on who was to blame for the accident. That is to say, it is not just documentary evidence that can prove all facts of a case. Proof will depend on the circumstances of each case.”
12. With regard to proof of ownership of motor vehicle KAY 904D, it was submitted that no evidence was produced to show that the said motor vehicle belonged to the Respondent. That, during cross-examination, the Respondent’s employee, PW4, confirmed that he did not produce a copy of records or log book as proof that the Respondent had any beneficial interest in the vehicle. It was contended that failure to produce proof of ownership was a fatal error by the Respondent. Relying on sections 107 and 109 of the Evidence Act, it was submitted that the legal and evidential burden to prove ownership lay on the Respondent. Reliance was placed on Gichinga Kibutha -vs- Caroline Nduku [2018] eKLR where the Court stated;
“It is therefore, settled law that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue.”
13. With regard to the orders granted by the trial court, it was submitted that the Respondent was not entitled to the amount awarded because it failed to prove ownership or beneficial interest in motor vehicle KAY 904D and also failed to support its claim as pleaded. That the purported Assessment Report under which the Respondent claims for the damages was produced by unknown person who did not author it hence it was inadmissible in evidence and should have been disregarded.
14. Relying on section 35 of the Evidence Act, it was submitted that documents are admissible as evidence if the maker is called as a witness and the only provision when the maker should not be called is when he is dead or cannot be found or is incapable of giving evidence or his attendance cannot be procured without amount of delay or expense which in the circumstances of the case appears to the Court as reasonable. It was contended that the Appellant’s counsel objected to the production of the assessment report by PW3 but the learned trial magistrate overruled the objections which was a fatal error in law.
15. With regard to interest, it was submitted that the learned trial magistrate erred in fact by failing to consider that this matter was at some point heard ex-parte and the judgment was set aside and that the Appellant also went on appeal vide Makueni HCCA No.154 of 2018 which decided in his favor on 13/11/2020 and ordered the matter to begin afresh. However, it was submitted that, the judgement and all its consequential orders ought to be dismissed as the Respondent failed to prove its case to the required standard.
Submissions by the Respondents
16. On whether the trial magistrate erred by finding the Appellant 100% liable, it was submitted that the Respondent’s driver testified on the occurrence of the accident whereby he said that he slowed down owing to a diversion and was hit from behind. That the impact from behind pushed motor vehicle KAY 904D forward and caused it to collide with a bus which was ahead. That, his evidence was corroborated by PW2 who confirmed that the driver of KBF 640D was to blame for failing to keep a proper distance and knocking KAY 904D from behind. It was contended that the Appellant did not call his driver or turn boy to rebut any of the facts presented as regard occurrence of the accident. Further, it was contended that the Appellant’s evidence was of no probative value as it was hearsay.
17. On whether the trial magistrate erred in awarding Kshs 863,006, it was submitted that the Respondent had pleaded a sum of Kshs 910,882 and had provided particulars for the same. Reliance was placed on the case of Eldoret Express Co. Ltd -vs- Silvance Ojwang’ Odero (2016) eKLR for the submission that a police abstract was not issued free of charge at the time of the accident. Reliance was also placed on the case of Nkuene Dairy Farmers Co-operative Society & Anor -vs- Ngacha Ndeiya (2010) eKLR where the Court of Appeal held;
“In our view, special damages in a 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 damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the Respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the values of the repairs were given with some degree of certainty.”
18. Further reliance was placed on the case of Silas Mutua Mberia -vs- Muthoni Njue Veronica (2021) eKLR where the court stated;
“It is thus clear that the appellant only needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that, the repairs were actually done and paid for. It must always be remembered that the balance of proof on the appellant was at all times on a balance of probabilities and not higher. The claim by the appellant was not for an expense already incurred but a claim to restore his damaged motor vehicle to its pre-accident state. The value of the damage was assessed and a report produced in evidence. It was therefore not necessary to demonstrate that indeed the costs of repairs were incurred, because the report was sufficient proof on a balance of probabilities. The appellant was not legally required or obligated to specifically prove the claim by production of receipts like in the case of special damages.”
19. It was thus submitted that the trial court did not err by making the award which was proven by tendering adequate documentation.
Duty of Court
20. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record and to draw its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
21. I have considered the record, the grounds of appeal, the rival submissions and the following issues arise for determination;
a) Who was to blame for the accident and to what extent?
b) Whether the Respondent proved its claim to the required standard.
Evidence before the trial court
22. PW1 was Milton Obote and he adopted his statement dated 26/11/2014 as his evidence-in-chief. He stated that he was a qualified driver and employed as such by the Respondent. That on 30/11/2011, he was driving motor vehicle KAY 940D along Nairobi-Mombasa Road when he slowed down as there was a diversion and suddenly, the vehicle was hit from behind by KBF 640D. That, he got out of the vehicle and found that his vehicle had been damaged on the rear and front side. He reported the accident at Salama police station and was issued with police abstract at the cost of 200/=. That, PC Mureithi went to the scene and took the necessary details of how the accident happened and the driver of KBF 640D was blamed for the accident.
23. On cross-examination, he said that he was employed by Phoenix Assurance and was driving KAY 904D at 9-10am. The bus was ahead and he stopped behind it. The lorry hit him from behind and he hit the bus after being pushed. There was not stage there and they stopped because of ongoing road construction. He would not know whether there was a stage at Salama. They had passed Salama bus stop. He did a drawing of the accident and gave it to his employer. Police visited the scene when the vehicles were still in contact with each other and took measurements. He denied hitting the bus and reversing into the lorry. The lorry driver and conductor fled and he did not know whether the driver was charged. He said that he was stationary as he slowed down and then stopped.
24. PW2 was CPL Josephine Githaiga of Salama police traffic base. She testified that the station received a report concerning the accident on 30/11/2011 vide OB No. 3. It was a non-injury accident attended by Sgt. Kamuyu and PC Mureithi. She had the OB in court. The accident occurred along Mombasa-Nairobi Highway at Kiu hills. Milton Okoth was driving KAY 904D from Nairobi to Mombasa and he slowed down at Kiu hills because Chania bus had slowed down to pick passengers. He was hit at the rear by KBF 640D, Isuzu lorry belonging to Mang’eli and as result of the impact, he hit KBE 869P mini bus.
25. The lorry driver disappeared after the accident and the vehicles were towed to Salama police station for inspection. Motor vehicle KBF 640D was to blame for failing to keep proper distance and rammed into the harrier. She didn’t know where the investigating officers were as it was a long time ago. She didn’t know whether the driver of KBF was charged. She produced the abstract as P. Ex 1.
26. On cross-examination, she said that she did not visit the scene and was only reading the record. She did not get the file and had not produced the sketch maps. She read the OB but had not produced it but said that she had it in court. she did not know whether any of the drivers were charged with any traffic offence. The bus was KBF 640D. The bus continued with its journey and it was stationary at the time of the accident. She didn’t know whether there was a bus stage at the scene.
27. PW3 was Moses Mugo Kareithi, a motor vehicle assessor of express motor vehicles. He testified that he had a diploma in Automotive Engineering from Kenya Polytechnic and a certificate of proficiency from the Kenya College of Insurance. They assessed motor vehicle KAY 904D and prepared the report and were paid Kshs 6,100/=. He produced the report as P. Ex 3 and fee note as P. Ex 4.
28. On cross-examination, he said that his name was not on the report and that it was signed by his boss George Onzere. He said that he did the report himself and the contents were verified by his boss. The motor vehicle was a total write off and the front of the vehicle referred to as a nose cut was worth Kshs 216,000/=. That he got the cost from the motor vehicles spare shops. That in 2011, they used to call to enquire about the cost but he agreed that he did not have a document to confirm the cost of the spare parts.
29. PW4 was George Karatu, a claims officer with MUA Insurance formerly, Phoenix insurance. He adopted his statement dated 30/05/2022 in which he stated that he was employed by Phoenix Insurance in the claims department. The plaintiff was the beneficial owner of KAY 904D having bought it from Sala Communications Ltd when the accident happened. The plaintiff sold the salvage and transfer documents to a new owner. The plaintiff had also insured the vehicle in its capacity as an insurance company.
30. He recalled that in December 2011, the company received a report that the motor vehicle had been involved in an accident on 30/11/2011 and after establishing that the accident was authentic, they took over the repair of the vehicle. They also got a police abstract where the driver of KBF 640D was blamed. Thereafter, they engaged Express Auto Assessors who assessed the damage and filed a report indicating repair costs estimates as Kshs 865,244/=. The motor vehicle was declared a write off. They were charged Kshs 6,100/= for the initial assessment which they duly paid.
31. They paid the claim on a total loss basis at Kshs 1,350,000/= and sold the salvage for Kshs 500,000/= after which they sought to claim from the party blamed for the accident. They instructed Zakache Security Services to trace the party and were charged Kshs 24,176/=. They also incurred other charges being storage and towing charges.
32. On cross-examination, he said that KAY 904D belonged to Phoenix Assurance Ltd and he was an employee of Phoenix at the time of the accident. That, they had produced a copy of certificate of insurance of motor vehicle as proof of ownership but agreed that they had not produced a copy of the log book. The motor vehicle was insured for Kshs 1.5 million at the time and the salvage was purchased by Model Enterprises for Kshs 500,000/=. They owned and insured the motor vehicle as it was a company motor vehicle. That the company was paying itself but there was no collusion since they relied on external assessor.
33. DW1 was Stanley Mang’eli and he adopted his statement dated 01/07/2022 in which he stated that he was the registered owner of KBF 640D Isuzu Lorry. On 30/11/2011, the lorry ferried sand to Emali along Mombasa Road and DW1 was informed that on its way back, the driver stopped at a bus stage at Salama market and parked the vehicle off the road.
34. That, the driver left the vehicle for a quick lunch break and left the turnboy inside the vehicle. A coast bus was dropping passengers at the same bus stop and it stopped some distance in front of the parked Isuzu Lorry. Suddenly, the driver of KAY 904D was speeding along Mombasa Road and while trying to overtake other vehicles, he negligently drove his motor vehicle towards the bus stop and immediately halted in front of the lorry thereby hitting the coast bus which was dropping passengers. Suddenly, the driver of KAY 904D reversed and hit the parked lorry and caused damage to his own vehicle.
35. He stated that his driver did not cause the accident as the lorry was stationary and lawfully parked off the road. The driver was never charged for causing the accident. The lorry did not get any damage or defect and he was aware that the driver of KAY 904D was not injured. That, the lorry is a heavy 10-wheeler Isuzu lorry and if indeed it was negligent or speeding, the damage caused would have been far more severe.
36. On cross-examination, he said that his turn boy, Mr. Kyambati gave him the report of the accident. That his driver did not know anything since he was away taking breakfast. That he had been unable to trace the turn boy.
Analysis
Who was to blame for the accident and to what extent?
37. It is not in dispute that an accident occurred on 30/11/2011 involving motor vehicles KAY 904D (the Toyota) and KBF 640D (the lorry). It is also clear from the evidence that there was a third motor vehicle involved in the accident, namely KBE 869P (the bus). The Appellant’s argument is that the Toyota was speeding when it rammed into the bus and then reversed and hit the lorry. The Appellant wondered how else the massive front damage on the Toyota could be explained.
38. Basic car crash physics dictate that a moving vehicle colliding with a stationary object experiences a greater impact and force and more damage. The stationary vehicle experiences a force only from the moving vehicle while the moving vehicle experiences a force from the collision plus its own momentum. In our case, the driver of the Toyota, PW1, testified that he was at a complete halt as the bus in front had stopped to pick passengers. He said that the lorry hit his vehicle from behind and pushed it to the bus.
39. In my view, the fact that the Toyota had more damage at the front is what makes PW1’ s version more probable and in alignment with the basic car crash physics. It is more probable that the Toyota was pushed into the stationary bus hence it experienced a greater impact and more damage. Further, DW1’s evidence was all hearsay as it was a narration from his turnboy who was not called as a witness.
40. From PW1’s account on how that accident happened, the lorry driver was not keeping a proper look out of other road users as he would have noticed that the vehicles in front had stopped. I find relevance in Zarina Akbarali Shariff and Another -vs- Noshir Pirosesha Sethna and Others [1963] EA 239 where it was held that;
“A driver is never entitled to assume that people will not do what experience and common sense teach him that they are, in fact, likely to do…It is not correct that drivers are entitled to drive on the assumption that other road users whether drivers or pedestrians, would behave with reasonable care. It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take…He cannot be expected to cope with every form of recklessness or outrageous conduct on the part of other road users, but ordinary prudence would require him to approach at a speed which, combined with a proper look-out, would leave him able to take reasonable avoiding action if the need became apparent.”
41. Consequently, there is no error in the trial magistrate’s finding on liability at 100% on the part of the Appellant.
Whether the Respondent proved its claim to the required standard.
42. The Respondent’s claim was for payment of Kshs 910,882/= being the material damage of the Toyota and related costs. The Appellant argued that the Respondent was not entitled to the claim as it had not proved ownership of the Toyota. PW4 was the claims officer of the Respondent and his evidence was that motor vehicle KAY 904D was owned by the Respondent and was also insured by the Respondent. PW1 was driving the motor vehicle at the time of the accident and he testified that he was an employee of the Respondent. The motor accident report form (P. Ex 1) indicates that PW1 had been an employee of the Respondent for seven years at the time of the accident. Considering the standard of proof in civil cases, I am of the view that the evidence adduced established that the Respondent was the beneficial owner of the motor vehicle.
43. It was also the Appellant’s argument that the assessment report should have been disregarded as it was produced by PW3 who was not the maker. PW3 ‘s evidence however was that he was the one who prepared the report but it was signed by his boss. There was no contest about PW3’s qualification as a motor vehicle assessor. Being a material damage claim, the Respondent’s duty was to guide the court on the damage sustained by the vehicle. As pronounced in numerous authorities including the ones cited by the Respondent (supra), the burden of proof is discharged where a claimant gives particulars of damage and values of repair with some degree of certainty. Here, the fact of the damage was not contested. Had the appellant produced an independent assessment report that would have challenged the report produced by the respondent. Hence the objection on production of the assessment report was rightfully rejected by the trial court.
44. With regard to the amount awarded, the assessment report gave the pre-accident value as 1,350,000/= which was the same amount pleaded. The salvage value pleaded was 500,000/= and is the figure indicated in the salvage authorization form. The only other receipt produced was for storage charges amounting to Kshs 13,006/=. The amount proved was therefore; (1,350,000 – 500,000) + 13,006 = 863,006/=. The award by the trial court was therefore correct.
45. The Appellant took issue with the award of interest from the date of filing suit and argued that the matter was initially heard ex-parte but it was set aside and heard afresh. Section 26 of the Civil Procedure Act provides;
“Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”
46. Award of interest is therefore discretionally but the discretion must be exercised judiciously. It is indeed true that the ex-parte proceedings were set aside and the matter heard afresh but that does not negate the fact that the amount claimed had already crystalized at the time of filing the suit hence the reason for awarding interest from the date of filing. I agree with the reasoning of the court in Heinz Broer -vs- Buscar (K) Ltd & others [2019] eKLR where it stated;
“Interest on special damages would, however, accrue from date of filing suit as a plaintiff will have incurred expenses from the date suit is filed and he will have been kept away from his monies until judgment is delivered.”
Disposition
From the forgoing it is evident that It is my finding that the appeal has no merit.
The Judgment of the subordinate court is upheld.
The appeal is dismissed with costs to the respondent
Dated, signed and delivered virtually this 4th July 2025
Mumbua T Matheka
Judge N/a
Appellant’s Advocates
M.M Uvyu & Co. Advocates
mmuvyu@yahoo.com
Respondent’s Advocates
Michuki & Michuki Advocates
info@michukiadvocates.com
1. The Respondent PHOENIX OF E.A ASSURANCE CO. LTD filed Principal Magistrate’s Court at Kilungu, Civil Case No.144 of 2014 seeking special damages of Kshs 910,882/= which it had incurred in compensating its insured motor vehicle KAY 904D. It averred that on or about 30/11/2011, its authorized driver was lawfully driving the said motor vehicle along the Nairobi-Mombasa Road at Salama when it was hit on the rear by motor vehicle KBF 640D which was driven/managed/controlled negligently. The Respondent also prayed for costs of the suit and interest.
2. The Appellant filed a statement of defence denying the allegations in the plaint and putting the Respondent to strict proof thereof. He averred that if the accident occurred as alleged, it was solely caused by or substantially contributed to by the negligence of the owner/driver/servant of motor vehicle KAY 904D.
3. The Respondent replied to the defence where it reiterated the contents of the plaint and denied all the particulars of negligence.
4. The matter proceeded to full trial and judgment was delivered in favor of the Respondent in the sum of Kshs 863,006/= plus costs and interest from the date of filing suit.
5. Aggrieved by the judgment, the Appellant filed this appeal and raised the following grounds;
a) The learned trial magistrate erred in law and fact in holding the Appellant 100% liable whereas the Respondent substantially contributed to the accident.
b) The learned trial magistrate erred in law and fact in finding that the Respondent was entitled to award of Kshs 863,006 as special damages which was not proved.
c) The learned trial magistrate erred in law and fact by admitting as evidence the Assessment Report which was not admissible in law.
d) The learned trial magistrate erred in law and fact in finding that the Respondent had proved its case against the Appellant on a balance of probability.
e) The learned trial magistrate erred in law and fact by arriving at the conclusion he did while arriving on extraneous material and or facts which did not form part of the proceedings.
f) The learned trial magistrate erred in law and fact by applying interest on the sum of Kshs 863,006 from the date of filing the suit until full payment.
g) The learned trial magistrate erred in law and fact in finding that the Appellant’s motor vehicle KBF 640D was to blame when in fact there was no such evidence on record.
6. The parties elected to canvass the appeal through written submissions and filed their respective submissions.
Submissions by the Appellant
7. The Appellant identified the issues for determination to be;
a. Whether the learned trial magistrate erred and misdirected himself by holding the driver of motor vehicle KBF 640D wholly liable for the accident.
b. Whether the learned trial magistrate erred in finding that the Respondent proved ownership of motor vehicle KAY 904D.
c. Whether the learned trial magistrate erred in finding that the Respondent was entitled to the prayers granted.
d. Whether the Respondent proved its case to the required standard.
8. As to whether the driver of KBF 640D was wholly liable for the accident, it was submitted that the evidence on record by PW1 and 2 was not conclusive that the said driver was wholly to blame for the accident. It was contended that KAY 904D was extensively damaged from the front more than the back meaning that it hit the bus which had stopped to pick passengers first then reversed and hit the Appellant. That the accident report form produced as Respondent’s exhibit No. 1 shows that there were three motor vehicles involved in the accident i.e., KBF 640D, KAY 904D and KBE 869P. That, during cross-examination, the Respondent confirmed that the driver of motor vehicle KBE 869P did not wait for the police officers to come to the scene because he drove off after the accident and he further confirmed that the driver of KBF 640D was never charged with any traffic offence in regard to the accident.
9. It was submitted that the Appellant’s evidence was to the effect that his motor vehicle was parked at a bus stage and was not in motion when the driver of KAY 904D rammed into the bus and reversed thereby hitting motor vehicle KBF 640D which was stationary. It was submitted that the learned trial magistrate misdirected himself for basing his finding solely on the fact that the Respondent claimed to have been hit from behind. Reliance was placed on Multiple Hauliers (E.A) Ltd -vs- Ustus Mutua Malundu & 2 others [2017] eKLR where the judge held;
“That clearly sits in consonance with the presumption that he who hits another from behind is IPSO FACTO negligent. However, a court of law makes its determination based on facts as pleaded by the parties and supported by the evidence adduced in support of such pleadings.…Clearly and surely the finding by the trial court cannot be supported even if they be based on facts. However, they do not support the facts, but pervert the facts proved in evidence and it behoves this court to correct that error by setting aside the finding on liability.”
10. It was submitted that the police officer, PW2, did not visit the scene but only produced the police abstract in which the investigating officer had blamed the driver of KBF 640D. That, she did not produce the OB extract or sketch map showing who was to blame for the accident hence the evidence on record was not enough to wholly blame the driver of KBF 640D for the accident. Reliance was placed on Kennedy Nyangoya -vs- Bash Hauliers [2016] eKLR where the court stated;
“In this matter, a police abstract was produced by PW1 to show that DW1 was to blame for the accident. DW1 was however not charged with a traffic offence. PW1 in his evidence informed the court that he was not the Investigating Officer. In my considered view, his evidence did not assist in any way to build the plaintiff’s case. PW1 did not visit the scene of the accident or take any sketch plan or map of the area where the accident happened for production in court. Even if the police abstract indicated that DW1 was to blame for the accident, the said abstract was not conclusive proof of liability in the absence of evidence being called to support it.
11. Further reliance was placed on Helle Sejer Hansen & 2 others -vs- Julius Kakungi Mukavi [2020] eKLR where the court stated;
“The Police abstract confirmed that a report of occurrence of an accident was made. It was filled from the record filed by police officers who attended the scene of the accident and made the record on how that accident occurred. It was therefore a true police record of events regarding that accident, though it may not be conclusive evidence of negligence. It however becomes relevant when considered alongside other evidence on who was to blame for the accident. That is to say, it is not just documentary evidence that can prove all facts of a case. Proof will depend on the circumstances of each case.”
12. With regard to proof of ownership of motor vehicle KAY 904D, it was submitted that no evidence was produced to show that the said motor vehicle belonged to the Respondent. That, during cross-examination, the Respondent’s employee, PW4, confirmed that he did not produce a copy of records or log book as proof that the Respondent had any beneficial interest in the vehicle. It was contended that failure to produce proof of ownership was a fatal error by the Respondent. Relying on sections 107 and 109 of the Evidence Act, it was submitted that the legal and evidential burden to prove ownership lay on the Respondent. Reliance was placed on Gichinga Kibutha -vs- Caroline Nduku [2018] eKLR where the Court stated;
“It is therefore, settled law that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue.”
13. With regard to the orders granted by the trial court, it was submitted that the Respondent was not entitled to the amount awarded because it failed to prove ownership or beneficial interest in motor vehicle KAY 904D and also failed to support its claim as pleaded. That the purported Assessment Report under which the Respondent claims for the damages was produced by unknown person who did not author it hence it was inadmissible in evidence and should have been disregarded.
14. Relying on section 35 of the Evidence Act, it was submitted that documents are admissible as evidence if the maker is called as a witness and the only provision when the maker should not be called is when he is dead or cannot be found or is incapable of giving evidence or his attendance cannot be procured without amount of delay or expense which in the circumstances of the case appears to the Court as reasonable. It was contended that the Appellant’s counsel objected to the production of the assessment report by PW3 but the learned trial magistrate overruled the objections which was a fatal error in law.
15. With regard to interest, it was submitted that the learned trial magistrate erred in fact by failing to consider that this matter was at some point heard ex-parte and the judgment was set aside and that the Appellant also went on appeal vide Makueni HCCA No.154 of 2018 which decided in his favor on 13/11/2020 and ordered the matter to begin afresh. However, it was submitted that, the judgement and all its consequential orders ought to be dismissed as the Respondent failed to prove its case to the required standard.
Submissions by the Respondents
16. On whether the trial magistrate erred by finding the Appellant 100% liable, it was submitted that the Respondent’s driver testified on the occurrence of the accident whereby he said that he slowed down owing to a diversion and was hit from behind. That the impact from behind pushed motor vehicle KAY 904D forward and caused it to collide with a bus which was ahead. That, his evidence was corroborated by PW2 who confirmed that the driver of KBF 640D was to blame for failing to keep a proper distance and knocking KAY 904D from behind. It was contended that the Appellant did not call his driver or turn boy to rebut any of the facts presented as regard occurrence of the accident. Further, it was contended that the Appellant’s evidence was of no probative value as it was hearsay.
17. On whether the trial magistrate erred in awarding Kshs 863,006, it was submitted that the Respondent had pleaded a sum of Kshs 910,882 and had provided particulars for the same. Reliance was placed on the case of Eldoret Express Co. Ltd -vs- Silvance Ojwang’ Odero (2016) eKLR for the submission that a police abstract was not issued free of charge at the time of the accident. Reliance was also placed on the case of Nkuene Dairy Farmers Co-operative Society & Anor -vs- Ngacha Ndeiya (2010) eKLR where the Court of Appeal held;
“In our view, special damages in a 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 damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the Respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the values of the repairs were given with some degree of certainty.”
18. Further reliance was placed on the case of Silas Mutua Mberia -vs- Muthoni Njue Veronica (2021) eKLR where the court stated;
“It is thus clear that the appellant only needed to prove the extent of the damage to his motor vehicle and what it would cost to repair it without necessarily proving that, the repairs were actually done and paid for. It must always be remembered that the balance of proof on the appellant was at all times on a balance of probabilities and not higher. The claim by the appellant was not for an expense already incurred but a claim to restore his damaged motor vehicle to its pre-accident state. The value of the damage was assessed and a report produced in evidence. It was therefore not necessary to demonstrate that indeed the costs of repairs were incurred, because the report was sufficient proof on a balance of probabilities. The appellant was not legally required or obligated to specifically prove the claim by production of receipts like in the case of special damages.”
19. It was thus submitted that the trial court did not err by making the award which was proven by tendering adequate documentation.
Duty of Court
20. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record and to draw its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
21. I have considered the record, the grounds of appeal, the rival submissions and the following issues arise for determination;
a) Who was to blame for the accident and to what extent?
b) Whether the Respondent proved its claim to the required standard.
Evidence before the trial court
22. PW1 was Milton Obote and he adopted his statement dated 26/11/2014 as his evidence-in-chief. He stated that he was a qualified driver and employed as such by the Respondent. That on 30/11/2011, he was driving motor vehicle KAY 940D along Nairobi-Mombasa Road when he slowed down as there was a diversion and suddenly, the vehicle was hit from behind by KBF 640D. That, he got out of the vehicle and found that his vehicle had been damaged on the rear and front side. He reported the accident at Salama police station and was issued with police abstract at the cost of 200/=. That, PC Mureithi went to the scene and took the necessary details of how the accident happened and the driver of KBF 640D was blamed for the accident.
23. On cross-examination, he said that he was employed by Phoenix Assurance and was driving KAY 904D at 9-10am. The bus was ahead and he stopped behind it. The lorry hit him from behind and he hit the bus after being pushed. There was not stage there and they stopped because of ongoing road construction. He would not know whether there was a stage at Salama. They had passed Salama bus stop. He did a drawing of the accident and gave it to his employer. Police visited the scene when the vehicles were still in contact with each other and took measurements. He denied hitting the bus and reversing into the lorry. The lorry driver and conductor fled and he did not know whether the driver was charged. He said that he was stationary as he slowed down and then stopped.
24. PW2 was CPL Josephine Githaiga of Salama police traffic base. She testified that the station received a report concerning the accident on 30/11/2011 vide OB No. 3. It was a non-injury accident attended by Sgt. Kamuyu and PC Mureithi. She had the OB in court. The accident occurred along Mombasa-Nairobi Highway at Kiu hills. Milton Okoth was driving KAY 904D from Nairobi to Mombasa and he slowed down at Kiu hills because Chania bus had slowed down to pick passengers. He was hit at the rear by KBF 640D, Isuzu lorry belonging to Mang’eli and as result of the impact, he hit KBE 869P mini bus.
25. The lorry driver disappeared after the accident and the vehicles were towed to Salama police station for inspection. Motor vehicle KBF 640D was to blame for failing to keep proper distance and rammed into the harrier. She didn’t know where the investigating officers were as it was a long time ago. She didn’t know whether the driver of KBF was charged. She produced the abstract as P. Ex 1.
26. On cross-examination, she said that she did not visit the scene and was only reading the record. She did not get the file and had not produced the sketch maps. She read the OB but had not produced it but said that she had it in court. she did not know whether any of the drivers were charged with any traffic offence. The bus was KBF 640D. The bus continued with its journey and it was stationary at the time of the accident. She didn’t know whether there was a bus stage at the scene.
27. PW3 was Moses Mugo Kareithi, a motor vehicle assessor of express motor vehicles. He testified that he had a diploma in Automotive Engineering from Kenya Polytechnic and a certificate of proficiency from the Kenya College of Insurance. They assessed motor vehicle KAY 904D and prepared the report and were paid Kshs 6,100/=. He produced the report as P. Ex 3 and fee note as P. Ex 4.
28. On cross-examination, he said that his name was not on the report and that it was signed by his boss George Onzere. He said that he did the report himself and the contents were verified by his boss. The motor vehicle was a total write off and the front of the vehicle referred to as a nose cut was worth Kshs 216,000/=. That he got the cost from the motor vehicles spare shops. That in 2011, they used to call to enquire about the cost but he agreed that he did not have a document to confirm the cost of the spare parts.
29. PW4 was George Karatu, a claims officer with MUA Insurance formerly, Phoenix insurance. He adopted his statement dated 30/05/2022 in which he stated that he was employed by Phoenix Insurance in the claims department. The plaintiff was the beneficial owner of KAY 904D having bought it from Sala Communications Ltd when the accident happened. The plaintiff sold the salvage and transfer documents to a new owner. The plaintiff had also insured the vehicle in its capacity as an insurance company.
30. He recalled that in December 2011, the company received a report that the motor vehicle had been involved in an accident on 30/11/2011 and after establishing that the accident was authentic, they took over the repair of the vehicle. They also got a police abstract where the driver of KBF 640D was blamed. Thereafter, they engaged Express Auto Assessors who assessed the damage and filed a report indicating repair costs estimates as Kshs 865,244/=. The motor vehicle was declared a write off. They were charged Kshs 6,100/= for the initial assessment which they duly paid.
31. They paid the claim on a total loss basis at Kshs 1,350,000/= and sold the salvage for Kshs 500,000/= after which they sought to claim from the party blamed for the accident. They instructed Zakache Security Services to trace the party and were charged Kshs 24,176/=. They also incurred other charges being storage and towing charges.
32. On cross-examination, he said that KAY 904D belonged to Phoenix Assurance Ltd and he was an employee of Phoenix at the time of the accident. That, they had produced a copy of certificate of insurance of motor vehicle as proof of ownership but agreed that they had not produced a copy of the log book. The motor vehicle was insured for Kshs 1.5 million at the time and the salvage was purchased by Model Enterprises for Kshs 500,000/=. They owned and insured the motor vehicle as it was a company motor vehicle. That the company was paying itself but there was no collusion since they relied on external assessor.
33. DW1 was Stanley Mang’eli and he adopted his statement dated 01/07/2022 in which he stated that he was the registered owner of KBF 640D Isuzu Lorry. On 30/11/2011, the lorry ferried sand to Emali along Mombasa Road and DW1 was informed that on its way back, the driver stopped at a bus stage at Salama market and parked the vehicle off the road.
34. That, the driver left the vehicle for a quick lunch break and left the turnboy inside the vehicle. A coast bus was dropping passengers at the same bus stop and it stopped some distance in front of the parked Isuzu Lorry. Suddenly, the driver of KAY 904D was speeding along Mombasa Road and while trying to overtake other vehicles, he negligently drove his motor vehicle towards the bus stop and immediately halted in front of the lorry thereby hitting the coast bus which was dropping passengers. Suddenly, the driver of KAY 904D reversed and hit the parked lorry and caused damage to his own vehicle.
35. He stated that his driver did not cause the accident as the lorry was stationary and lawfully parked off the road. The driver was never charged for causing the accident. The lorry did not get any damage or defect and he was aware that the driver of KAY 904D was not injured. That, the lorry is a heavy 10-wheeler Isuzu lorry and if indeed it was negligent or speeding, the damage caused would have been far more severe.
36. On cross-examination, he said that his turn boy, Mr. Kyambati gave him the report of the accident. That his driver did not know anything since he was away taking breakfast. That he had been unable to trace the turn boy.
Analysis
Who was to blame for the accident and to what extent?
37. It is not in dispute that an accident occurred on 30/11/2011 involving motor vehicles KAY 904D (the Toyota) and KBF 640D (the lorry). It is also clear from the evidence that there was a third motor vehicle involved in the accident, namely KBE 869P (the bus). The Appellant’s argument is that the Toyota was speeding when it rammed into the bus and then reversed and hit the lorry. The Appellant wondered how else the massive front damage on the Toyota could be explained.
38. Basic car crash physics dictate that a moving vehicle colliding with a stationary object experiences a greater impact and force and more damage. The stationary vehicle experiences a force only from the moving vehicle while the moving vehicle experiences a force from the collision plus its own momentum. In our case, the driver of the Toyota, PW1, testified that he was at a complete halt as the bus in front had stopped to pick passengers. He said that the lorry hit his vehicle from behind and pushed it to the bus.
39. In my view, the fact that the Toyota had more damage at the front is what makes PW1’ s version more probable and in alignment with the basic car crash physics. It is more probable that the Toyota was pushed into the stationary bus hence it experienced a greater impact and more damage. Further, DW1’s evidence was all hearsay as it was a narration from his turnboy who was not called as a witness.
40. From PW1’s account on how that accident happened, the lorry driver was not keeping a proper look out of other road users as he would have noticed that the vehicles in front had stopped. I find relevance in Zarina Akbarali Shariff and Another -vs- Noshir Pirosesha Sethna and Others [1963] EA 239 where it was held that;
“A driver is never entitled to assume that people will not do what experience and common sense teach him that they are, in fact, likely to do…It is not correct that drivers are entitled to drive on the assumption that other road users whether drivers or pedestrians, would behave with reasonable care. It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take…He cannot be expected to cope with every form of recklessness or outrageous conduct on the part of other road users, but ordinary prudence would require him to approach at a speed which, combined with a proper look-out, would leave him able to take reasonable avoiding action if the need became apparent.”
41. Consequently, there is no error in the trial magistrate’s finding on liability at 100% on the part of the Appellant.
Whether the Respondent proved its claim to the required standard.
42. The Respondent’s claim was for payment of Kshs 910,882/= being the material damage of the Toyota and related costs. The Appellant argued that the Respondent was not entitled to the claim as it had not proved ownership of the Toyota. PW4 was the claims officer of the Respondent and his evidence was that motor vehicle KAY 904D was owned by the Respondent and was also insured by the Respondent. PW1 was driving the motor vehicle at the time of the accident and he testified that he was an employee of the Respondent. The motor accident report form (P. Ex 1) indicates that PW1 had been an employee of the Respondent for seven years at the time of the accident. Considering the standard of proof in civil cases, I am of the view that the evidence adduced established that the Respondent was the beneficial owner of the motor vehicle.
43. It was also the Appellant’s argument that the assessment report should have been disregarded as it was produced by PW3 who was not the maker. PW3 ‘s evidence however was that he was the one who prepared the report but it was signed by his boss. There was no contest about PW3’s qualification as a motor vehicle assessor. Being a material damage claim, the Respondent’s duty was to guide the court on the damage sustained by the vehicle. As pronounced in numerous authorities including the ones cited by the Respondent (supra), the burden of proof is discharged where a claimant gives particulars of damage and values of repair with some degree of certainty. Here, the fact of the damage was not contested. Had the appellant produced an independent assessment report that would have challenged the report produced by the respondent. Hence the objection on production of the assessment report was rightfully rejected by the trial court.
44. With regard to the amount awarded, the assessment report gave the pre-accident value as 1,350,000/= which was the same amount pleaded. The salvage value pleaded was 500,000/= and is the figure indicated in the salvage authorization form. The only other receipt produced was for storage charges amounting to Kshs 13,006/=. The amount proved was therefore; (1,350,000 – 500,000) + 13,006 = 863,006/=. The award by the trial court was therefore correct.
45. The Appellant took issue with the award of interest from the date of filing suit and argued that the matter was initially heard ex-parte but it was set aside and heard afresh. Section 26 of the Civil Procedure Act provides;
“Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”
46. Award of interest is therefore discretionally but the discretion must be exercised judiciously. It is indeed true that the ex-parte proceedings were set aside and the matter heard afresh but that does not negate the fact that the amount claimed had already crystalized at the time of filing the suit hence the reason for awarding interest from the date of filing. I agree with the reasoning of the court in Heinz Broer -vs- Buscar (K) Ltd & others [2019] eKLR where it stated;
“Interest on special damages would, however, accrue from date of filing suit as a plaintiff will have incurred expenses from the date suit is filed and he will have been kept away from his monies until judgment is delivered.”
Disposition
From the forgoing it is evident that It is my finding that the appeal has no merit.
The Judgment of the subordinate court is upheld.
The appeal is dismissed with costs to the respondent
Dated, signed and delivered virtually this 4th July 2025
Mumbua T Matheka
Judge N/a
Appellant’s Advocates
M.M Uvyu & Co. Advocates
mmuvyu@yahoo.com
Respondent’s Advocates
Michuki & Michuki Advocates
info@michukiadvocates.com