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Small ClaimsPartially AllowedNot stated in the judgment as provided· [2025] SCC 76 (KLR)

Wambugu v Mungari & another (Claim E2165 of 2025) [2025] SCC 76 (KLR)

Small Claims Court
27 November 2025
TOT.O. Omono
2,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, suing under the doctrine of subrogation on behalf of her insurer, Geminia Insurance Company Limited, claimed special damages of Kshs. 126,548/= following a road traffic accident of 10th May 2022 at the Sarit Centre roundabout, in which the 1st Respondent's motor vehicle, driven by the 2nd Respondent, hit her vehicle's front bumper. The Respondents did not enter appearance; interlocutory judgment was entered and the matter proceeded by formal proof, with the Claimant electing to proceed under section 30 of the Small Claims Court Act. The Adjudicator, T.O. Omono, restated the doctrine of subrogation and held that even in uncontroverted formal proof, a plaintiff must prove the claim on a balance of probabilities. On liability, the court held that a police abstract entry on blame is only persuasive, not proof of negligence; a driver who hits another vehicle is presumed to have been at excessive speed, but the Claimant, who stopped at the roundabout contrary to the Highway Code and did not show avoidance steps, also bore blame. Liability was apportioned equally at 50%. On quantum, special damages had to be pleaded and strictly proved: repair fees and assessment fees failed because invoices and payment requisition vouchers are not proof of payment, while tracing fees (Kshs. 23,900/=) and re-inspection fees (Kshs. 2,320/=) were proved by vouchers, invoices and ETR receipts. The Kshs. 15,000/= disbursements, though proved, were not awardable as special damages and were left to costs. Judgment was entered jointly and severally against the Respondents at 50% liability, yielding a net award of Kshs. 13,110/= with interest at court rates from filing, plus assessed costs of Kshs. 15,000/=. Certificate of costs and decree to issue; file closed.

Key legal issues

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01

Liability for the accident

Holding

Claimant and 1st Respondent equally to blame (50:50); 1st Respondent vicariously liable for the 2nd Respondent's driving

Reasoning

The court held the 1st Respondent vicariously liable for the 2nd Respondent's driving absent contrary evidence. A police abstract entry blaming a party is only persuasive, not proof of negligence. A driver must take reasonable steps to avoid hitting stationary objects even if wrongly positioned, but the Claimant also failed to show steps she took to avoid the accident. Evidence being barely adequate to apportion greater blame, liability was shared equally.

p. 7
02

Quantum of special damages

Holding

Only tracing fees (Kshs. 23,900/=) and re-inspection fees (Kshs. 2,320/=) strictly proved; repair and assessment fees failed for want of proof; disbursements excluded from special damages

Reasoning

Special damages must be pleaded and strictly proved. Invoices and payment requisition vouchers without 'paid' endorsement are not proof of expenditure, so repair and assessment fees failed. Tracing and re-inspection fees were proved by vouchers, invoices and ETR receipts. The Kshs. 15,000/= disbursement, though proved by receipt, was not awardable as special damages and was left to costs.

p. 9

Legal principles established

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  • An insurer that has compensated its insured may, under subrogation, sue a third party in the insured's name with consent
  • A plaintiff must prove their case on a balance of probabilities even in formal proof where the defendant does not appear
  • A police abstract entry blaming a party is not proof of negligence; it is only persuasive and must be supported by other evidence
  • Special damages must be both pleaded and strictly proved

Court orders

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  1. 1.Judgment entered against the Respondents jointly and severally on liability at 50%
  2. 2.Award of tracing fees of Kshs. 23,900/= and re-inspection fees of Kshs. 2,320/=, total Kshs. 26,220/=, less 50%, net award Kshs. 13,110/=
  3. 3.Interest on the award at court rate from the date of filing the claim until payment in full
  4. 4.Costs of the claim assessed at Kshs. 30,000/= less 50%, translating to Kshs. 15,000/=
  5. 5.Certificate of Costs and Decree to issue forthwith
  6. 6.File closed
Jurisdiction invoked
Section 30 of the Small Claims Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wambugu v Mungari & another (Claim E2165 of 2025) [2025] SCC 76 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/76/eng@2025-11-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.