Ngwandaru v Onyara & another (Civil Suit E506 of 2024) [2026] KEMC 794 (KLR)

Copies of records from the motor vehicle register showed the Defendants owned the trailer at the time of the accident, and section 8 of the Traffic Act raises a rebuttable presumption of ownership. No evidence controverted this. Nothing suggested the driver acted without authority or was on a frolic of his own; hence vicarious liability attached. The Plaintiff's lawfully parked vehicle having been rammed from behind, the moving driver was deemed negligent.

The Plaintiff produced an assessment/valuation report from Maka Automotive Works and Assessors and photographs showing the extent of damage and repair cost of Kshs. 275,000/=. No evidence controverted the report. Following Nkuene Dairy Farmers, an uncontroverted assessor's report is sufficient proof of damage and repair cost, so the court held the repair cost proved.

V.A.T is ordinarily claimed as a disbursement and must be proved; where not paid, it is awardable only upon proof that the service provider is V.A.T-registered. No evidence showed the garage was V.A.T-registered, and the court took judicial notice that not all Kenyan garages are registered. An award could not rest on speculation.

Loss of user is special damages that must be strictly proved; oral testimony alone is insufficient. The Plaintiff produced no business permit, income tax returns, income records, bank or M-Pesa statements to prove the alleged Kshs. 10,000/= daily breakdown business income. He also bore a duty to mitigate; the assessor's 10-day repair timeframe meant 20 days would have sufficed, and without proof of income the court would have adopted Kshs. 5,000/= per day.

The pleaded special damages comprised assessment fees of Kshs. 6,000/=, copy of records of Kshs. 1,100/=, and recovery and towing fees of Kshs. 40,000/=. Applying Herbert Hahn on the pleading and strict proof of special damages, the court found that receipts from NTSA, Maka Assessors and Ribuild Technical proved the pleaded sum.