INTRODUCTION
1. In his decision of 21st February 2025, the Learned Trial Magistrate, found the Respondent 100% liable for the accident that led to the damage of the Appellant’s motor vehicle and awarded the Appellant Kshs 8,090/= and all-inclusive costs of Kshs 30,000/= but dismissed the Appellant’s claim for repair costs of Kshs 119,480/= and claim for lost income of Kshs 77,540/=.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 24th February 2025 and filed on 25th February 2025. It relied on three (3) grounds of appeal.
3. The Appellant’s written submissions were dated 24th February 2025. The Respondent did not file written submissions and did not participate in this appeal. The Judgment herein is based on the Appellant’s written submissions which it relied upon in their entirety.
LEGAL ANALYSIS
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.
5. This was aptly stated 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.
6. Having looked at the Grounds of Appeal and Appellant’s written submissions, it appeared to this court that the only issue that had been placed before it for determination was: -
Whether or not the Learned Magistrate erred dismissing the Appellant’s claim for repair costs and loss of Income;
7. In its submissions, the Appellant contention was only on the issue of repair costs and this court deemed it prudent to address the issue as follows;
8. The Appellant invoked Section 38(1) of the Small Claims Court Act and contended that the issue raised in this appeal was on matter of law in accordance with the said Section. It also invoked Rule 5(1) of the Small Claims Court Rules, 2019 (hereinafter referred to as the Rules) and submitted that in the said Rule, it was only required to file an estimate of the cost of repair prepared by a licensed mechanic or a certified motor vehicle assessor. It asserted that a party could also succeed if it submitted receipt in acknowledgement of money paid to a licensed mechanic. It pointed out that in compliance with the said Rules, it filed a motor vehicle assessment report which was made by M/S Quantum Motor Assessors and Valuers.
9. It therefore faulted the Trial Court’s finding that the award of repair costs could only be made if the amount the Appellant spent in repairing the motor vehicle was proved through receipts or an explanation as to the lack of receipts. It was emphatic that this finding was contrary to the provisions of Rule 5(1) of the Rules. It also asserted that it was entitled to repair costs by virtue of the assessment report only as per Rule 5(1) aforestated. It cited Nkuene Dairy Farmers Co-op Society & Another vs Ngacha Ndeiya Court of Appeal CACA No 154 of 2005 where the court opined that in a material damage claim, the claimant was only required to show the extent of damage and what it would cost the damaged item. The court also stated that the assessor’s report was sufficient proof and failure to produce receipts for repairs done was not fatal to the claim.
10. It urged this court to find that the Trial Court erred in its holding and prayed that the appeal be allowed with costs.
11. A perusal of the Trial Court record showed that the Appellant filed a statement of claim dated 6th May 2024 claiming for compensation for damage occasioned to its motor vehicle registration no. KDN 067L by the Respondent’s motor vehicle registration no. KCA 496J. It prayed for repair costs of Kshs 119,480/=, assessment fees of Kshs 7,540/=, loss of income of Kshs 77,602/= and Kshs 550/= for copy of records all totaling Kshs 205,172/=.
12. The Respondent entered the appearance but never filed a response to the Appellant’s claim. Notably, from the proceedings on the record of appeal, it was not indicated whether the Appellant testified or not. The original hand-written record was also incomplete hence it was not clear whether the Appellant called any witness or not.
13. The learned magistrate in his judgement was of the view that the repair costs said to have been incurred, the Appellant failed to produce any evidence beyond the assessment report demonstrating payment of the damages. The Trial acknowledged the cited Court of Appeal rule of the issue of evidence but was of the view that it would have been strictly proven if the actual payments were demonstrated. He faulted the Appellant for failing to give an explanation for failing to produce the same.
14. It is this Courts view that view that the damages herein ought to have been ascertained as per Rule 5 of the Small Claim Courts 2019 which requires that an assessment report or itemized receipt form a licensed mechanic to be attached evidencing the extent of damages or repairs required. Rule 5 provides that:
1.A person claiming compensation under Section 12(1) (c) of the Act in respect of motor vehicle which has been damaged in a road traffic accident or other accident shall attach to the statement of claim-
(a) an itemized estimate of the cost of repair prepared by a licensed mechanic or certified motor vehicle assessor; or
(b) an itemized receipt issued in acknowledgement of money paid by the Claimant to a licensed mechanic on account of repairs already carried out on the motor vehicle in question.
15. 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’’
16. In lieu of the above and looking at the totality of the evidence availed by the Appellant specifically the assessors report dated 12th March 2024, this Court is therefore satisfied that the Appellant has demonstrated that they are entitled to the award of Kshs.119,480/=. It is worth noting that the Respondent has not in this Appeal disputed the report availed by the Appellant. I therefore set aside the Trial Court’s decision and I ward the Appellant Kshs.119,480/=.
17. This Court therefore sets aside the finding of the Trial Court that disallowed the prayer. The rest of the prayers of the Trial Court are affirmed.
18. Court makes no order as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Maina Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.
1. In his decision of 21st February 2025, the Learned Trial Magistrate, found the Respondent 100% liable for the accident that led to the damage of the Appellant’s motor vehicle and awarded the Appellant Kshs 8,090/= and all-inclusive costs of Kshs 30,000/= but dismissed the Appellant’s claim for repair costs of Kshs 119,480/= and claim for lost income of Kshs 77,540/=.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 24th February 2025 and filed on 25th February 2025. It relied on three (3) grounds of appeal.
3. The Appellant’s written submissions were dated 24th February 2025. The Respondent did not file written submissions and did not participate in this appeal. The Judgment herein is based on the Appellant’s written submissions which it relied upon in their entirety.
LEGAL ANALYSIS
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.
5. This was aptly stated 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.
6. Having looked at the Grounds of Appeal and Appellant’s written submissions, it appeared to this court that the only issue that had been placed before it for determination was: -
Whether or not the Learned Magistrate erred dismissing the Appellant’s claim for repair costs and loss of Income;
7. In its submissions, the Appellant contention was only on the issue of repair costs and this court deemed it prudent to address the issue as follows;
8. The Appellant invoked Section 38(1) of the Small Claims Court Act and contended that the issue raised in this appeal was on matter of law in accordance with the said Section. It also invoked Rule 5(1) of the Small Claims Court Rules, 2019 (hereinafter referred to as the Rules) and submitted that in the said Rule, it was only required to file an estimate of the cost of repair prepared by a licensed mechanic or a certified motor vehicle assessor. It asserted that a party could also succeed if it submitted receipt in acknowledgement of money paid to a licensed mechanic. It pointed out that in compliance with the said Rules, it filed a motor vehicle assessment report which was made by M/S Quantum Motor Assessors and Valuers.
9. It therefore faulted the Trial Court’s finding that the award of repair costs could only be made if the amount the Appellant spent in repairing the motor vehicle was proved through receipts or an explanation as to the lack of receipts. It was emphatic that this finding was contrary to the provisions of Rule 5(1) of the Rules. It also asserted that it was entitled to repair costs by virtue of the assessment report only as per Rule 5(1) aforestated. It cited Nkuene Dairy Farmers Co-op Society & Another vs Ngacha Ndeiya Court of Appeal CACA No 154 of 2005 where the court opined that in a material damage claim, the claimant was only required to show the extent of damage and what it would cost the damaged item. The court also stated that the assessor’s report was sufficient proof and failure to produce receipts for repairs done was not fatal to the claim.
10. It urged this court to find that the Trial Court erred in its holding and prayed that the appeal be allowed with costs.
11. A perusal of the Trial Court record showed that the Appellant filed a statement of claim dated 6th May 2024 claiming for compensation for damage occasioned to its motor vehicle registration no. KDN 067L by the Respondent’s motor vehicle registration no. KCA 496J. It prayed for repair costs of Kshs 119,480/=, assessment fees of Kshs 7,540/=, loss of income of Kshs 77,602/= and Kshs 550/= for copy of records all totaling Kshs 205,172/=.
12. The Respondent entered the appearance but never filed a response to the Appellant’s claim. Notably, from the proceedings on the record of appeal, it was not indicated whether the Appellant testified or not. The original hand-written record was also incomplete hence it was not clear whether the Appellant called any witness or not.
13. The learned magistrate in his judgement was of the view that the repair costs said to have been incurred, the Appellant failed to produce any evidence beyond the assessment report demonstrating payment of the damages. The Trial acknowledged the cited Court of Appeal rule of the issue of evidence but was of the view that it would have been strictly proven if the actual payments were demonstrated. He faulted the Appellant for failing to give an explanation for failing to produce the same.
14. It is this Courts view that view that the damages herein ought to have been ascertained as per Rule 5 of the Small Claim Courts 2019 which requires that an assessment report or itemized receipt form a licensed mechanic to be attached evidencing the extent of damages or repairs required. Rule 5 provides that:
1.A person claiming compensation under Section 12(1) (c) of the Act in respect of motor vehicle which has been damaged in a road traffic accident or other accident shall attach to the statement of claim-
(a) an itemized estimate of the cost of repair prepared by a licensed mechanic or certified motor vehicle assessor; or
(b) an itemized receipt issued in acknowledgement of money paid by the Claimant to a licensed mechanic on account of repairs already carried out on the motor vehicle in question.
15. 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’’
16. In lieu of the above and looking at the totality of the evidence availed by the Appellant specifically the assessors report dated 12th March 2024, this Court is therefore satisfied that the Appellant has demonstrated that they are entitled to the award of Kshs.119,480/=. It is worth noting that the Respondent has not in this Appeal disputed the report availed by the Appellant. I therefore set aside the Trial Court’s decision and I ward the Appellant Kshs.119,480/=.
17. This Court therefore sets aside the finding of the Trial Court that disallowed the prayer. The rest of the prayers of the Trial Court are affirmed.
18. Court makes no order as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 24th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Maina Learned Counsel for the Appellant.
No appearance for the Respondent.
Michael - Court Assistant.