1. This appeal emanates from the judgement and decree of Hon. G.C. Serem, Resident Magistrate/Adjudicator delivered on 24th November, 2023 in Kisumu SCCCCOM No. E265 of 2023.
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 30th November, 2023 upon which he seeks to upset the judgement and decree of the lower court are as follows:
a. The learned trial Adjudicator grossly misdirected herself in treating the evidence and submissions before her superficially and consequently coming to a wrong conclusion.
b. The learned trial Adjudicator erred in law and in fact by arriving at a conclusive decision that then Appellant was wholly to blame, culpable and liable for the occurrence of the accident of 14th September, 2022.
c. The learned trial Adjudicator did not take into consideration that no evidence was never adduced by the Respondent leading to it arriving at a conclusion that the Appellant was wholly guilty and liable for the occurrence of the accident.
d. The learned trial Adjudicator failed to consider the evidence and, in the alternative, consider or sufficiently consider the contents or averments of the Appellant on his response to the claim and documents produced before the court as evidence in support of the Appellant’s case.
e. The learned trial Adjudicator misdirected herself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the Appellant.
f. The learned trial Adjudicator erred in law in ignoring and failing to take and consider the strict principles set down in law to claims under special damages.
g. The learned trial Adjudicator failed to consider that the judgement that was arrived at was totally different from what the Claimant had claimed for in its statement of claim.
h. The learned trial Adjudicator proceeded on wrong principles especially while relying on judgement authorities that had no support in favour of the Respondent thus with this fact, a wrong conclusion was arrived at by the trial court.
i. The judgement entered as special damages were never proved by the Respondent herein to warrant the awards as judgement in favour of the Respondent.
j. The learned trial Adjudicator failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
3. The Appellant proposes that the appeal be allowed with costs and that this court sets aside the trial court’s judgement.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. This court directed that the appeal proceeds by way of written submissions and both parties filed their respective submissions.
8. The matter before the trial court, based on tortious liability (a material damage claim), was commenced by way of a statement of claim dated 1st September, 2023 filed by the Respondent herein (the Claimant before the trial court), under the doctrine of subrogation, jointly and severally against the Appellant and the 2nd Respondent (respectively the 1st and 2nd Respondents before the trial court).
9. The 1st Respondent pleaded that on or about 14th September, 2020, a road traffic accident (collision) occurred along Kisumu – Bondo Road at Obambo area involving the 1st Respondent’s motor vehicle registration number KCM 113Y and the Appellant’s and the 2nd Respondent’s motor vehicle registration number KAM 632E, whereby the 1st Respondent’s motor vehicle was extensively damaged.
10. The 1st Respondent pleaded that the accident was solely caused by the negligence of the Appellant and the 2nd Respondent, their driver, agent and/or servant.
11. The 1st Respondent listed 11 particulars of negligence that it attributed to the Appellant’s and the 2nd Respondent’s driver, agent and/or servant, and held the Appellant and the 2nd Respondent vicariously liable for the negligence of their driver, agent and/or servant.
12. The Respondent pleaded that as a result of the accident, the 1st Respondent’s motor vehicle was damaged for which the 1st Respondent expended the following amounts:
- Repairs - Ksh.916,157/-.
- Assessment fees - Ksh. 6,270/-.
- Re-inspection fees - Ksh. 2,950/-.
- Tracing fees - Ksh. 32,150/-.
Total - Ksh.957,527/-.
13. The 1st Respondent stated in its statement of claim that as at the time of the accident, its vehicle was insured by MUA Insurance Kenya Limited and that the claim was in the premises brought for the benefit of the said insurers in exercise of its rights under the doctrine of subrogation.
14. The 1st Respondent sought against the Appellant judgement in the sum of Ksh.957,527/-, costs and interest.
15. The Appellant resisted the claim by filing a response to statement of claim dated 3rd September, 2023 denying liability in toto to the 1st Respondent. The Appellant generally denied all the averments in the statement of claim and in particular the allegations that the accident was caused by its driver, agent and/or servant and the particulars of negligence as were pleaded by the 1st Respondent.
16. The second Respondent also filed a response to the 1st Respondent’s statement of claim, dated 21st September, 2023 in which he opposed the 1st Respondent’s claim. The 2nd Respondent also generally denied all the averments in the statement of claim and in particular the allegations that the accident was caused by its driver, agent and/or servant and the particulars of negligence as were pleaded by the 1st Respondent.
17. The 2nd Respondent pleaded in the alternative that he was not liable for the accident as he acquired motor vehicle registration number KAM 632E from the Appellant on 24th September, 2020, well after the date of the alleged accident.
18. By the consent of the parties, the matter proceeded under Section 30 of the Small Claims Court Act whereby the parties adopted their respective witness statements and produced and relied on the documents filed without calling oral evidence.
19. The 1st Respondent relied on the witness statement of Pang Xiaoguang dated 1st September, 2023 in which the author stated that he was a director of the 1st Respondent who was the registered and beneficial owner of motor vehicle registration number KCM 113Y.
20. The witness stated in his statement that the said vehicle was involved in a collision accident with motor vehicle registration number KAM 632E on 14th September, 2020 and was extensively damaged. The 1st Respondent’s vehicle was repaired and MUA Insurance Company Limited paid Ksh.6,270/- assessment fees; Ksh.916,157/- for the repairs; Ksh.2,950/- re-assessment fees; and Ksh.32,150/- tracing fees.
21. The 1st Respondent further relied on the statement of Horace Owiti Odongo dated 1st September, 2023 in which the said witness stated that he was the driver of the 1st Respondent’s vehicle and that on 14th September, 2020, as he was lawfully driving along Kisumu – Bondo Road and upon reaching Obambo area, motor vehicle registration number KAM 632E that was across the road suddenly attempted to make an illegal u-turn on the road thereby wrongly encroaching on the opposite/wrong side of the road/lane thereby colliding with the 1st Respondent’s vehicle from the front side, extensively damaging it.
22. The witness stated further in his statement that the accident was reported to Maseno Police station and that officers from the station attended to the scene. The witness blamed the driver of motor vehicle registration number KAM 632E, whom he said was negligent in that he drove the vehicle in a reckless manner.
23. The 1st Respondent relied on the statement of George Karatu, a legal officer at MUA Insurance Kenya Limited dated 1st September, 2023. In his statement, the said witness stated that his employer was the insurer of the 1st Respondent’s vehicle at the time that the accident occurred, vide policy number 4032/19/07/HO/N. He stated that the insurer was informed of the accident and an accident report claim completed in that respect.
24. The witness stated in his statement that the insurer instructed Coslid Insurance Assessors to assess the 1st Respondent’s vehicle and that the said assessors did so and prepared a report, for which the insurer paid Ksh.6,270/-.
25. The witness further stated that the insurer instructed Crown Motors Group Limited to repair the 1st Respondent’s vehicle, which was done and that the insurer paid Ksh.916,157/- for the repairs, after which the vehicle was re-assessed by Instep Loss Assessors Limited, who prepared a report for which the insurer paid Ksh.2,970/-.
26. The witness further stated in his statement that his employer engaged the services of Touchline Insurance Investigators to trace the registered and beneficial owner of motor vehicle registration number KCM 113Y and paid Ksh.32,150/- for the tracing services.
27. The 1st Respondent produced the following documents in support of its case:
- Police abstract dated 14th September, 2020.
- Motor vehicle accident report claim dated 1st October, 2020.
- Assessment report dated 9th October, 2020 prepared by Coslid Insurance Assessor’s indicating the repairs estimate at Ksh.
- Supplementary repairs issued by Coslid Insurance Assessors dated 26th November, 2020 indicating the amount of Ksh.
- Invoice and receipt for Ksh.6,270/- dated 9th October, 2020.
- Repair estimate of Ksh.135,663.25/- issued by Crown Motors Group Limited.
- Repair estimate of Ksh.1,003,518.87/- issued by Crown Motors Group Limited.
- Satisfaction note issued by Crown Motors Limited dated 5th December, 2020.
- Invoice and receipt for Ksh.2,970/- dated 5th December, 2020 issued by Instep Loss Assessors Limited.
- Bank transfer of Ksh.900,083/- issued by KCB Bank dated 5th February, 2021.
- Bank transfer of Ksh.5,885/- issued by KCB Bank dated 5th February, 2021.
- Tracing report issued by Touchline Insurance Investigators dated 4th July, 2023.
- Invoice and receipt for Ksh.32,150/- dated 4th July, 2023 issued by Touchline Insurance Investigators.
- Motor claims payment/recovery data of Ksh.925,377/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Motor claims payment/recovery data of Ksh.2,949/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Motor claims payment/recovery data of Ksh.919,106/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Copy of records for motor vehicle registration number KAM 632E.
28. The 2nd Respondent stated in his statement dated 21st September, 2023 that he purchased motor vehicle registration number KCM 113Y from the Appellant on 24th September, 2020 through a verbal agreement and that he paid the purchase sum to the Appellant by bank transfer. He stated that as at 14th September, 2020 when the accident in question occurred, he was not the owner, had no interest or possession of the said vehicle.
29. The second Respondent produced the following document in support of his case:
- Bank statement showing a transfer of Ksh.850,000/- made on 24th September, 2020 to the Appellant.
30. The Appellant relied on a statement dated 3rd September, indicating at the top “Statement of Mohamed Adan Mohamed” but at the bottom as having been signed by the Appellant “Thomas Gwaka Omari”. Although the discrepancy was not explained, the signature at the bottom is the name “Thomas” and I will therefore take it that the statement was that of the Appellant.
31. The Appellant stated in the statement that on 14th September, 2020, he was driving motor vehicle registration number KAM 632E when at Obambo area along Kisumu – Bondo Road motor vehicle registration number KCM 113Y was recklessly driven and veered onto the Appellant’s side and collided with his vehicle.
32. The Appellant stated that he “decided to express leniency on the driver” and the two decided that each driver would pursue their respective insurance companies for compensation. He was later sued. He insisted that the driver of the second vehicle was to blame for the accident.
33. The Appellant produced the following documents in support of his case:
- Motor accident report form completed by the Appellant and submitted to his insurer The Monarch Insurance Company Limited.
- Copy of log book for motor vehicle registration number KAM 632E.
- Police abstract.
- Copy of agreement dated 24th September 2020 indicating that the Appellant sold motor vehicle registration number KAM 632E to the 2nd Respondent for Ksh.850,000/-.
- Copy of the Appellant’s driving licence.
34. The parties closed their respective cases at that point.
35. In her judgment rendered 24th November, 2023, the learned Adjudicator, in determining the issue of liability, found that the 2nd Respondent was not in possession or control of motor vehicle registration number KAM 632E at the time of the accident as he had sold it to the Appellant, who did not dispute that fact and who, in admission, produced the sale agreement evidencing that transaction.
36. The learned Adjudicator proceeded to find that the Appellant was 100% liable for the accident, noting that the Appellant did not plead or prove any particulars of negligence against the 1st Respondent. She subsequently proceeded to award the 1st Respondent the claimed amount of Ksh.947,658/- together with interest from the date of judgement until payment in full. Costs were also awarded to the 1st Respondent. The suit against the 2nd Respondent was dismissed.
37. The appeal proceeded by way of written submissions. Notably, the 2nd Respondent did not participate in the appeal.
38. From the grounds of appeal, the record of the trial court and the submissions filed by the parties, the following issues arise for determination by this Court:
a. Whether the learned Adjudicator properly evaluated the evidence placed before her in finding the Appellant wholly liable for the accident.
b. Whether the Appellant can validly complain that no evidence was tendered by the 1st Respondent in light of the parties’ election to proceed under Section 30 of the Small Claims Court Act.
c. Whether the 1st Respondent proved negligence against the Appellant to the requisite standard.
d. Whether the 1st Respondent strictly proved the special damages awarded by the trial court.
e. Whether the judgment of the trial court ought to be interfered with.
39. In the present appeal, the parties mutually agreed to proceed before the learned Adjudicator under Section 30 of the Small Claims Court Act, adopting their witness statements and documentary evidence without calling oral testimony.
40. Having elected that procedure, the Appellant cannot now be heard to complain that no evidence was tendered or tested through cross-examination. Parties are bound by their own choices and conduct in litigation.
41. Section 30 of the Small Claims Court Act further provides for an informal and expeditious procedure and it is implicit that strict technical rules of evidence do not apply with the same rigidity as in ordinary civil proceedings. The core purpose of alternative and specialized procedures such as those under the Small Claims Court Act is to promote adaptability, procedural simplicity and the minimization of unnecessary technical formalism.
42. Consequently, the Appellant’s ground that no evidence was adduced by the Respondent is misconceived. The 1st Respondent placed before the trial court witness statements and extensive documentary evidence, all of which were admitted by consent. That material constituted evidence upon which the trial court was entitled to make findings.
43. On the issue of liability, the 1st Respondent’s evidence, as contained in the statement of its driver, was that the Appellant’s motor vehicle attempted an illegal U-turn, encroached onto the wrong lane and collided with the Respondent’s vehicle. The Appellant merely denied liability and alleged that the 1st Respondent’s driver caused the accident. However, the Appellant did not plead any particulars of negligence or contributory negligence against the 1st Respondent in his response to the statement of claim.
44. In the absence of pleaded particulars, no such evidence could be properly considered. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, the Court of Appeal emphatically stated:
“Issues for determination in a suit generally flow from the pleadings and unless pleadings are amended, parties are confined to their pleadings.”
45. The learned Adjudicator therefore correctly held that the Appellant could not shift blame to the 1st Respondent without having pleaded and proved particulars of negligence. Negligence and contributory negligence must be specifically pleaded and proved. In Nandwa v Kenya Kazi Ltd [1988] eKLR, the Court held:
“Contributory negligence must be pleaded and proved, and a court has no basis upon which to apportion liability where none is pleaded.”
46. On the standard of proof, negligence is proved on a balance of probabilities. The 1st Respondent adduced a coherent account of how the accident occurred and attributed fault to the Appellant. The Appellant’s bare denial, unsupported by pleaded particulars or credible rebuttal evidence, was insufficient to displace the 1st Respondent’s case. As stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“Once a plaintiff establishes a prima facie case, the evidential burden shifts to the defendant to rebut the same.”
47. This Court therefore finds that the learned Adjudicator did not misdirect herself in holding the Appellant 100% liable for the accident, there being no legal or evidential basis for apportionment of liability.
48. The next issue concerns the award of special damages. It is trite law that special damages must be specifically pleaded and strictly proved, as was held in the case of Hahn v Singh [1985] KLR 716. They are not inferred from the nature of the act complained of.
49. In the present case, the 1st Respondent specifically pleaded each head of material damage, namely repair costs, assessment fees, re-inspection fees and tracing fees and produced documentary evidence in the form of invoices, receipts, assessment reports and bank transfer records in support of each item.
50. Notably, none of the itemized monetary claims was challenged by the Appellant either by way of counter evidence or in his submissions. The Appellant did not dispute the authenticity of the documents, the amounts paid or the nexus between the expenditure and the accident.
51. In the absence of any challenge, the trial court was entitled to accept the documentary evidence as proof of special damages. As held in Des Raj Sharma v Reginam [1953] 19 EACA 310, where evidence is uncontroverted and unchallenged, the court is entitled to accept it.
52. This Court is therefore satisfied that the 1st Respondent strictly proved its claim for special damages and that the learned Adjudicator properly applied the law in making the award.
53. Having re-evaluated the entire record, this Court finds that the learned Adjudicator properly directed herself on the applicable law, considered the evidence placed before her and arrived at conclusions that are sound and supported both in fact and in law. No error has been demonstrated to warrant interference by this Court.
54. In the result, the appeal is devoid of merit and is hereby dismissed with costs to the 1st Respondent which I assess at Ksh.25,000/-. I make no order as to costs in respect of the 2nd Respondent as he did not participate in the appeal.
55. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 25th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Mr. Garo.
FOR 1ST RESPONDENT: Mr. Kirimi.
FOR 2ND RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Mr. Garo: I seek 30 days stay.
Mr. Kirimi: No objection.
Court: There shall be stay of execution for 30 days.
JOE M. OMIDO
JUDGE
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 30th November, 2023 upon which he seeks to upset the judgement and decree of the lower court are as follows:
a. The learned trial Adjudicator grossly misdirected herself in treating the evidence and submissions before her superficially and consequently coming to a wrong conclusion.
b. The learned trial Adjudicator erred in law and in fact by arriving at a conclusive decision that then Appellant was wholly to blame, culpable and liable for the occurrence of the accident of 14th September, 2022.
c. The learned trial Adjudicator did not take into consideration that no evidence was never adduced by the Respondent leading to it arriving at a conclusion that the Appellant was wholly guilty and liable for the occurrence of the accident.
d. The learned trial Adjudicator failed to consider the evidence and, in the alternative, consider or sufficiently consider the contents or averments of the Appellant on his response to the claim and documents produced before the court as evidence in support of the Appellant’s case.
e. The learned trial Adjudicator misdirected herself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the Appellant.
f. The learned trial Adjudicator erred in law in ignoring and failing to take and consider the strict principles set down in law to claims under special damages.
g. The learned trial Adjudicator failed to consider that the judgement that was arrived at was totally different from what the Claimant had claimed for in its statement of claim.
h. The learned trial Adjudicator proceeded on wrong principles especially while relying on judgement authorities that had no support in favour of the Respondent thus with this fact, a wrong conclusion was arrived at by the trial court.
i. The judgement entered as special damages were never proved by the Respondent herein to warrant the awards as judgement in favour of the Respondent.
j. The learned trial Adjudicator failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
3. The Appellant proposes that the appeal be allowed with costs and that this court sets aside the trial court’s judgement.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. This court directed that the appeal proceeds by way of written submissions and both parties filed their respective submissions.
8. The matter before the trial court, based on tortious liability (a material damage claim), was commenced by way of a statement of claim dated 1st September, 2023 filed by the Respondent herein (the Claimant before the trial court), under the doctrine of subrogation, jointly and severally against the Appellant and the 2nd Respondent (respectively the 1st and 2nd Respondents before the trial court).
9. The 1st Respondent pleaded that on or about 14th September, 2020, a road traffic accident (collision) occurred along Kisumu – Bondo Road at Obambo area involving the 1st Respondent’s motor vehicle registration number KCM 113Y and the Appellant’s and the 2nd Respondent’s motor vehicle registration number KAM 632E, whereby the 1st Respondent’s motor vehicle was extensively damaged.
10. The 1st Respondent pleaded that the accident was solely caused by the negligence of the Appellant and the 2nd Respondent, their driver, agent and/or servant.
11. The 1st Respondent listed 11 particulars of negligence that it attributed to the Appellant’s and the 2nd Respondent’s driver, agent and/or servant, and held the Appellant and the 2nd Respondent vicariously liable for the negligence of their driver, agent and/or servant.
12. The Respondent pleaded that as a result of the accident, the 1st Respondent’s motor vehicle was damaged for which the 1st Respondent expended the following amounts:
- Repairs - Ksh.916,157/-.
- Assessment fees - Ksh. 6,270/-.
- Re-inspection fees - Ksh. 2,950/-.
- Tracing fees - Ksh. 32,150/-.
Total - Ksh.957,527/-.
13. The 1st Respondent stated in its statement of claim that as at the time of the accident, its vehicle was insured by MUA Insurance Kenya Limited and that the claim was in the premises brought for the benefit of the said insurers in exercise of its rights under the doctrine of subrogation.
14. The 1st Respondent sought against the Appellant judgement in the sum of Ksh.957,527/-, costs and interest.
15. The Appellant resisted the claim by filing a response to statement of claim dated 3rd September, 2023 denying liability in toto to the 1st Respondent. The Appellant generally denied all the averments in the statement of claim and in particular the allegations that the accident was caused by its driver, agent and/or servant and the particulars of negligence as were pleaded by the 1st Respondent.
16. The second Respondent also filed a response to the 1st Respondent’s statement of claim, dated 21st September, 2023 in which he opposed the 1st Respondent’s claim. The 2nd Respondent also generally denied all the averments in the statement of claim and in particular the allegations that the accident was caused by its driver, agent and/or servant and the particulars of negligence as were pleaded by the 1st Respondent.
17. The 2nd Respondent pleaded in the alternative that he was not liable for the accident as he acquired motor vehicle registration number KAM 632E from the Appellant on 24th September, 2020, well after the date of the alleged accident.
18. By the consent of the parties, the matter proceeded under Section 30 of the Small Claims Court Act whereby the parties adopted their respective witness statements and produced and relied on the documents filed without calling oral evidence.
19. The 1st Respondent relied on the witness statement of Pang Xiaoguang dated 1st September, 2023 in which the author stated that he was a director of the 1st Respondent who was the registered and beneficial owner of motor vehicle registration number KCM 113Y.
20. The witness stated in his statement that the said vehicle was involved in a collision accident with motor vehicle registration number KAM 632E on 14th September, 2020 and was extensively damaged. The 1st Respondent’s vehicle was repaired and MUA Insurance Company Limited paid Ksh.6,270/- assessment fees; Ksh.916,157/- for the repairs; Ksh.2,950/- re-assessment fees; and Ksh.32,150/- tracing fees.
21. The 1st Respondent further relied on the statement of Horace Owiti Odongo dated 1st September, 2023 in which the said witness stated that he was the driver of the 1st Respondent’s vehicle and that on 14th September, 2020, as he was lawfully driving along Kisumu – Bondo Road and upon reaching Obambo area, motor vehicle registration number KAM 632E that was across the road suddenly attempted to make an illegal u-turn on the road thereby wrongly encroaching on the opposite/wrong side of the road/lane thereby colliding with the 1st Respondent’s vehicle from the front side, extensively damaging it.
22. The witness stated further in his statement that the accident was reported to Maseno Police station and that officers from the station attended to the scene. The witness blamed the driver of motor vehicle registration number KAM 632E, whom he said was negligent in that he drove the vehicle in a reckless manner.
23. The 1st Respondent relied on the statement of George Karatu, a legal officer at MUA Insurance Kenya Limited dated 1st September, 2023. In his statement, the said witness stated that his employer was the insurer of the 1st Respondent’s vehicle at the time that the accident occurred, vide policy number 4032/19/07/HO/N. He stated that the insurer was informed of the accident and an accident report claim completed in that respect.
24. The witness stated in his statement that the insurer instructed Coslid Insurance Assessors to assess the 1st Respondent’s vehicle and that the said assessors did so and prepared a report, for which the insurer paid Ksh.6,270/-.
25. The witness further stated that the insurer instructed Crown Motors Group Limited to repair the 1st Respondent’s vehicle, which was done and that the insurer paid Ksh.916,157/- for the repairs, after which the vehicle was re-assessed by Instep Loss Assessors Limited, who prepared a report for which the insurer paid Ksh.2,970/-.
26. The witness further stated in his statement that his employer engaged the services of Touchline Insurance Investigators to trace the registered and beneficial owner of motor vehicle registration number KCM 113Y and paid Ksh.32,150/- for the tracing services.
27. The 1st Respondent produced the following documents in support of its case:
- Police abstract dated 14th September, 2020.
- Motor vehicle accident report claim dated 1st October, 2020.
- Assessment report dated 9th October, 2020 prepared by Coslid Insurance Assessor’s indicating the repairs estimate at Ksh.
- Supplementary repairs issued by Coslid Insurance Assessors dated 26th November, 2020 indicating the amount of Ksh.
- Invoice and receipt for Ksh.6,270/- dated 9th October, 2020.
- Repair estimate of Ksh.135,663.25/- issued by Crown Motors Group Limited.
- Repair estimate of Ksh.1,003,518.87/- issued by Crown Motors Group Limited.
- Satisfaction note issued by Crown Motors Limited dated 5th December, 2020.
- Invoice and receipt for Ksh.2,970/- dated 5th December, 2020 issued by Instep Loss Assessors Limited.
- Bank transfer of Ksh.900,083/- issued by KCB Bank dated 5th February, 2021.
- Bank transfer of Ksh.5,885/- issued by KCB Bank dated 5th February, 2021.
- Tracing report issued by Touchline Insurance Investigators dated 4th July, 2023.
- Invoice and receipt for Ksh.32,150/- dated 4th July, 2023 issued by Touchline Insurance Investigators.
- Motor claims payment/recovery data of Ksh.925,377/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Motor claims payment/recovery data of Ksh.2,949/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Motor claims payment/recovery data of Ksh.919,106/- issued by MUA Insurance Kenya Limited dated 28th January, 2021.
- Copy of records for motor vehicle registration number KAM 632E.
28. The 2nd Respondent stated in his statement dated 21st September, 2023 that he purchased motor vehicle registration number KCM 113Y from the Appellant on 24th September, 2020 through a verbal agreement and that he paid the purchase sum to the Appellant by bank transfer. He stated that as at 14th September, 2020 when the accident in question occurred, he was not the owner, had no interest or possession of the said vehicle.
29. The second Respondent produced the following document in support of his case:
- Bank statement showing a transfer of Ksh.850,000/- made on 24th September, 2020 to the Appellant.
30. The Appellant relied on a statement dated 3rd September, indicating at the top “Statement of Mohamed Adan Mohamed” but at the bottom as having been signed by the Appellant “Thomas Gwaka Omari”. Although the discrepancy was not explained, the signature at the bottom is the name “Thomas” and I will therefore take it that the statement was that of the Appellant.
31. The Appellant stated in the statement that on 14th September, 2020, he was driving motor vehicle registration number KAM 632E when at Obambo area along Kisumu – Bondo Road motor vehicle registration number KCM 113Y was recklessly driven and veered onto the Appellant’s side and collided with his vehicle.
32. The Appellant stated that he “decided to express leniency on the driver” and the two decided that each driver would pursue their respective insurance companies for compensation. He was later sued. He insisted that the driver of the second vehicle was to blame for the accident.
33. The Appellant produced the following documents in support of his case:
- Motor accident report form completed by the Appellant and submitted to his insurer The Monarch Insurance Company Limited.
- Copy of log book for motor vehicle registration number KAM 632E.
- Police abstract.
- Copy of agreement dated 24th September 2020 indicating that the Appellant sold motor vehicle registration number KAM 632E to the 2nd Respondent for Ksh.850,000/-.
- Copy of the Appellant’s driving licence.
34. The parties closed their respective cases at that point.
35. In her judgment rendered 24th November, 2023, the learned Adjudicator, in determining the issue of liability, found that the 2nd Respondent was not in possession or control of motor vehicle registration number KAM 632E at the time of the accident as he had sold it to the Appellant, who did not dispute that fact and who, in admission, produced the sale agreement evidencing that transaction.
36. The learned Adjudicator proceeded to find that the Appellant was 100% liable for the accident, noting that the Appellant did not plead or prove any particulars of negligence against the 1st Respondent. She subsequently proceeded to award the 1st Respondent the claimed amount of Ksh.947,658/- together with interest from the date of judgement until payment in full. Costs were also awarded to the 1st Respondent. The suit against the 2nd Respondent was dismissed.
37. The appeal proceeded by way of written submissions. Notably, the 2nd Respondent did not participate in the appeal.
38. From the grounds of appeal, the record of the trial court and the submissions filed by the parties, the following issues arise for determination by this Court:
a. Whether the learned Adjudicator properly evaluated the evidence placed before her in finding the Appellant wholly liable for the accident.
b. Whether the Appellant can validly complain that no evidence was tendered by the 1st Respondent in light of the parties’ election to proceed under Section 30 of the Small Claims Court Act.
c. Whether the 1st Respondent proved negligence against the Appellant to the requisite standard.
d. Whether the 1st Respondent strictly proved the special damages awarded by the trial court.
e. Whether the judgment of the trial court ought to be interfered with.
39. In the present appeal, the parties mutually agreed to proceed before the learned Adjudicator under Section 30 of the Small Claims Court Act, adopting their witness statements and documentary evidence without calling oral testimony.
40. Having elected that procedure, the Appellant cannot now be heard to complain that no evidence was tendered or tested through cross-examination. Parties are bound by their own choices and conduct in litigation.
41. Section 30 of the Small Claims Court Act further provides for an informal and expeditious procedure and it is implicit that strict technical rules of evidence do not apply with the same rigidity as in ordinary civil proceedings. The core purpose of alternative and specialized procedures such as those under the Small Claims Court Act is to promote adaptability, procedural simplicity and the minimization of unnecessary technical formalism.
42. Consequently, the Appellant’s ground that no evidence was adduced by the Respondent is misconceived. The 1st Respondent placed before the trial court witness statements and extensive documentary evidence, all of which were admitted by consent. That material constituted evidence upon which the trial court was entitled to make findings.
43. On the issue of liability, the 1st Respondent’s evidence, as contained in the statement of its driver, was that the Appellant’s motor vehicle attempted an illegal U-turn, encroached onto the wrong lane and collided with the Respondent’s vehicle. The Appellant merely denied liability and alleged that the 1st Respondent’s driver caused the accident. However, the Appellant did not plead any particulars of negligence or contributory negligence against the 1st Respondent in his response to the statement of claim.
44. In the absence of pleaded particulars, no such evidence could be properly considered. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, the Court of Appeal emphatically stated:
“Issues for determination in a suit generally flow from the pleadings and unless pleadings are amended, parties are confined to their pleadings.”
45. The learned Adjudicator therefore correctly held that the Appellant could not shift blame to the 1st Respondent without having pleaded and proved particulars of negligence. Negligence and contributory negligence must be specifically pleaded and proved. In Nandwa v Kenya Kazi Ltd [1988] eKLR, the Court held:
“Contributory negligence must be pleaded and proved, and a court has no basis upon which to apportion liability where none is pleaded.”
46. On the standard of proof, negligence is proved on a balance of probabilities. The 1st Respondent adduced a coherent account of how the accident occurred and attributed fault to the Appellant. The Appellant’s bare denial, unsupported by pleaded particulars or credible rebuttal evidence, was insufficient to displace the 1st Respondent’s case. As stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“Once a plaintiff establishes a prima facie case, the evidential burden shifts to the defendant to rebut the same.”
47. This Court therefore finds that the learned Adjudicator did not misdirect herself in holding the Appellant 100% liable for the accident, there being no legal or evidential basis for apportionment of liability.
48. The next issue concerns the award of special damages. It is trite law that special damages must be specifically pleaded and strictly proved, as was held in the case of Hahn v Singh [1985] KLR 716. They are not inferred from the nature of the act complained of.
49. In the present case, the 1st Respondent specifically pleaded each head of material damage, namely repair costs, assessment fees, re-inspection fees and tracing fees and produced documentary evidence in the form of invoices, receipts, assessment reports and bank transfer records in support of each item.
50. Notably, none of the itemized monetary claims was challenged by the Appellant either by way of counter evidence or in his submissions. The Appellant did not dispute the authenticity of the documents, the amounts paid or the nexus between the expenditure and the accident.
51. In the absence of any challenge, the trial court was entitled to accept the documentary evidence as proof of special damages. As held in Des Raj Sharma v Reginam [1953] 19 EACA 310, where evidence is uncontroverted and unchallenged, the court is entitled to accept it.
52. This Court is therefore satisfied that the 1st Respondent strictly proved its claim for special damages and that the learned Adjudicator properly applied the law in making the award.
53. Having re-evaluated the entire record, this Court finds that the learned Adjudicator properly directed herself on the applicable law, considered the evidence placed before her and arrived at conclusions that are sound and supported both in fact and in law. No error has been demonstrated to warrant interference by this Court.
54. In the result, the appeal is devoid of merit and is hereby dismissed with costs to the 1st Respondent which I assess at Ksh.25,000/-. I make no order as to costs in respect of the 2nd Respondent as he did not participate in the appeal.
55. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 25th day of February, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Mr. Garo.
FOR 1ST RESPONDENT: Mr. Kirimi.
FOR 2ND RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Mr. Garo: I seek 30 days stay.
Mr. Kirimi: No objection.
Court: There shall be stay of execution for 30 days.
JOE M. OMIDO
JUDGE