Wanyonyi v Njuba & 2 others (Civil Suit E313 of 2025) [2026] KEMC 801 (KLR)

control and knocked his motor vehicle thereby causing his motor vehicle to be extensively damaged as particularized in paragraph 7 of the Plaint. 3. The Plaintiff further pleaded that his extensively damaged motor vehicle was to be repaired at a cost of Kshs. 347,000/= which he seeks to recover from the Defendants. He added that he was also claiming assessment fees of Kshs. 6,000/= and motor vehicle search fees of Kshs. 1,100/= from the Defendants. 4. He blamed the Defendants’ negligence for the occurrence of the accident as pleaded in paragraph 6 of the Plaint. 5. The Defendants entered appearance and filed a Statement of Defence. They denied all the averments in the Plaintiff’s Plaint regarding ownership of motor vehicle registration number KCH 346 V, the particulars of negligence attributed to them, and the occurrence of the accident. 6. In the alternative, the Defendants averred that if the accident occurred, then the same was wholly caused or substantially contributed by the Plaintiff’s negligent acts. EVIDENCE Plaintiff’s Case 7. PW1 Abel Wanyonyi adopted his witness statement dated 12th July 2025 as his evidence in chief. His testimony was that on the date of the incident,

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while driving his motor vehicle registration number KCM 648 R along Bungoma – Webuye road heading towards Bungoma general direction, the Defendants’ motor vehicle registration number KCH 346 V lost control and knocked his motor vehicle from behind, causing extensive damage to his motor vehicle. 8. He added that his motor vehicle was assessed by a motor vehicle assessor who assessed the cost of repair at Kshs. 347,000/=. He also stated that the motor vehicle assessor declared his motor vehicle a constructive loss, given that the repair cost was beyond any scope of economic repairs. 9. He produced all the documents in his list of documents dated 12 th July 2025 as exhibits. Defendants’ Case 10.The Defendants did not call any witnesses to substantiate the allegations pleaded in their Statement of Defence despite being served with all the relevant mention notices and hearing notices. Parties’ Written Submissions 11.On liability, the Plaintiff submitted that the motor vehicle registration number KCH 346 V copy of search, evidenced that the 1st Defendant was the said motor vehicle’s registered owner. He also submitted that the police abstract dated 13th May 2025 showed that the 2nd Defendant was the said motor vehicle’s owner.

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12.He added that the 3rd Defendant’s driving license on record proved that the 3rd Defendant was the 1st and 2nd Defendants’ agent and/or servant, thus the 1st and 2nd Defendants were vicariously liable for the 3rd Defendant’s actions. 13.The Plaintiff further submitted that the failure by the Defendants to call witnesses to substantiate the averments in their Statement of Defence rendered the Plaintiff’s case uncontroverted. He placed reliance on Motex Knitwear Limited Vs Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002 and Trust Bank Limited Vs. Paramount Universal Bank Limited and 2 Others Nairobi (Milimani) HCCC No. 1243 of 2001 for this position. 14.The Plaintiff further submitted that in the absence of the Defendants’ version of events on how the accident occurred, this court ought to find the Defendants 100% liable for the occurrence of the accident. 15.Turning to the quantum for material damage, the Plaintiff submitted that the Motor Vehicle Assessment/Valuation Report dated 23rd May 2025 proved on a balance of probabilities that the Plaintiff’s motor vehicle was damaged during the accident and that the same was to be repaired at Kshs. 347,000/=. 16.The Plaintiff relied on Macharia v Kiruthi (Civil Appeal 023 of 2022) [2024] KEHC 3685 (KLR) (2 April 2024) (Judgment) and Gerda Maina Simon Vs Global Trucks Limited (2020) eKLR for the position that an

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uncontroverted motor vehicle assessor’s report was sufficient proof of damage and repair costs in a material damage claim thus this court ought to award Kshs. 347,000/= to the Plaintiff for material damage. 17. On Special Damages, the Plaintiff submitted that he had pleaded and proved Special Damages of Kshs. 7,100/=. ANALYSIS AND DETERMINATION 18.This court has duly considered the pleadings, the evidence, the written submissions on record, as well as the authorities relied upon by the Plaintiff. 19.It is worth noting from the onset that the Defendants rightly submitted that the failure by the Defendants to call witnesses to substantiate the averments in their Statement of Defence rendered those averments mere allegations which this court will not consider in determining this case. 20.The police abstract on record shows that the accident herein occurred, and the same was reported to the police vide OB No. 31/10/05/2025. The motor vehicle sale agreement dated 15th January 2023 shows that the Plaintiff bought motor vehicle registration number KCM 648 R. There is no evidence on record to controvert the contents of the said police abstract and the motor vehicle sale agreement.

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21.The foregoing shows that the occurrence of the accident herein and the Plaintiff’s ownership of motor vehicle registration number KCM 648 R is not disputed. 22.In the circumstances, this court finds and holds that the issues for determination in this case are liability and quantum. Liability 23.The Plaintiff pleaded that the 1st Defendant was the motor vehicle registration number’s KCH 346 V registered owner, while the 2 nd Defendant was the said motor vehicle’s beneficial owner. He also pleaded that the 3 rd Defendant was the said motor vehicle’s driver at the time of the accident. 24.The Plaintiff submitted that the police abstract and the copy of records for motor vehicle registration number KCH 346 V, and a copy of the 3 rd Defendant’s diving license on record, proved the allegations above. 25.A reading of the said motor vehicle’s copy of records dated 12 th May 2025 shows that the 1st Defendant owned the said motor vehicle at the time of the accident herein. The police abstract, on the other hand, lists the 2nd Defendant as the said motor vehicle’s registered owner. 26.The law in this jurisdiction is that the entries in the register of motor vehicles on ownership of a motor vehicle raise a rebuttable presumption on ownership of such a motor vehicle (see section 8 of the Traffic Act).

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Therefore, that entry in the register of motor vehicles on ownership of the said motor vehicle could only be rebutted by cogent evidence on how the said motor vehicle’s ownership changed from the 1st Defendant to the 2nd Defendant as purported in the police abstract on record. 27.The Plaintiff’s averment in the Plaint that the 2nd Defendant was the motor vehicle’s beneficial owner could only be proved on a balance of probabilities by a motor vehicle sale agreement transferring ownership of the said motor vehicle from the 1st Defendant to the 2nd Defendant or a certificate of insurance showing that the 2nd Defendant was the said motor vehicle’s insurer. No such evidence was placed before this court by the Plaintiff. 28.The Plaintiff sought to prove that the 3rd Defendant was the said motor vehicle’s driver at the time of the accident herein by relying on a copy of the 3rd Defendant’s driving license on record. 29.This court is unable to tell how the Plaintiff obtained the 3 rd Defendant’s driving license. The 3rd Defendant’s identity as the person who was driving the 1st Defendant’s motor vehicle at the time of the accident is further complicated by the fact that the 3rd Defendant’s name does not appear anywhere in the police abstract on record. 30.The foregoing begs the question of how and why did the Plaintiff join the 2 nd and 3rd Defendants to this suit. It is this court’s view that the accident’s

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investigating officer was the only person who could answer this question. Unfortunately, the accident’s investigating officer did not testify before this court. 31. Therefore, in the absence of the evidence alluded to above, this court is of the considered view that the 2nd and 3rd Defendants were improperly joined to this suit; hence they cannot be held liable for the accident herein. 32.Be that as it may, the 1 st Defendant being the said motor vehicle’s registered owner bore the evidential burden of proving that the said motor vehicle was not being driven for his benefit and with his permission at the time of the accident. He did not discharge that burden. Therefore, in the event this court finds the said motor vehicle’s driver negligent for the occurrence of the accident herein, the 1st Defendant will be vicariously liable for his driver’s negligent acts. 33.The Plaintiff’s evidence on the circumstances of the accident was that he sustained the bodily injuries when his motor vehicle was hit from behind by the 1st Defendant’s motor vehicle. There is no evidence on record to controvert the Plaintiff’s evidence on the circumstances under which the accident occurred. 34.The mere fact that the Plaintiff’s motor vehicle was knocked from behind by the 1st Defendant’s motor vehicle and the fact that the accident occurred

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during the day shows that the 1st Defendant’s driver had a clear view of the Plaintiff’s motor vehicle before the occurrence of the accident. 35.A prudent driver exercising due care and skill cannot hit another motor vehicle from behind unless the other motor vehicle suddenly emerges on the road. That is not the case in this matter. 36.Where a motor vehicle hits another motor vehicle from behind, a prima facie case of negligence is usually established against the driver who hit the other motor vehicle from behind, as expressed by Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment) where the learned judge expressed himself as follows:A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on

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the burden om the appellant to prove that the collision was not due to his negligence’ 37.In the absence of the 1st Defendant’s evidence to dislodge a prima facie case of negligence established against his driver by the evidence adduced by the Plaintiff, this court finds the 1st Defendant 100% vicariously liable for the occurrence of the accident herein. Quantum (a) Material Damage 38.The Plaintiff in this matter was duty bound to prove on a balance of probabilities that arising from the accident herein, his motor vehicle was damaged, and that the said damage was to be repaired at a cost of Kshs. 347,000/= claimed in the Plaint. 39.The Plaintiff placed before this court a motor vehicle assessment/valuation report dated 23rd May 2025 from Maka Automotive Works and Assessors and photos showing the extent of damage to his motor vehicle and the cost of repairing the said motor vehicle at Kshs. 347,000/=. The Defendants did not place before this court any evidence to controvert the contents of the said report. 40.This court agrees with the Plaintiff’s submission that an uncontroverted motor vehicle assessor’s report is sufficient proof of damage to a motor vehicle and the cost of repairing such a damaged motor vehicle. This position is fortified by the holding by the Court of Appeal decision in Nkuene Dairy Farmers Cooperative Society Ltd & another v Ngacha Ndeiya ( 2010) eKLR, where the court stated thus: “ Motor vehicle parts are sold in shops. An assessor, we think would be in a position to know their cost. The prices may vary from one shop

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to another but the prices are nonetheless ascertainable even without purchasing the item and fixing it on the damaged vehicle. Motor vehicle parts are Common items and any price which the assessor might have given couldbe counter checked and either accepted or disproved. The appellants having not questioned those prices must be taken to have accepted the report as representing the correct market prices of the various parts which were shown on the Assessor's report. The experience of the Assessor was not challenged and we think Onyancha J. was right in describing him as an expert, and his report as being opinion evidence. The Court had the right to accept or reject his opinion if the circumstances so dictated. The respondent, to our mind, particularized his claim in the plaint and called acceptable evidence to prove the same and we have no basis for faulting both the trial and first appellate Courts in the concurrent decision they came to. Indeed, the decision of David Bagine v. Martin Bundi Civil Appeal No. 283 of 1996 which Mr. Kaburu cited to us, does state that a motor vehicle Assessor's report would provide acceptable evidence to prove the value of material damage to a motor vehicle.” 41.Guided by the authority above, this court finds and holds that, arising from the accident herein, the Plaintiff’s motor vehicle was damaged as pleaded in the Plaint and the said motor vehicle was to be repaired at the cost of Kshs. 347,000/=. 42.Be that as it may, this court notes that the Plaintiff’s motor vehicle was declared a constructive loss/write off.

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43.The law in this jurisdiction is that where a motor vehicle is written off as a result of an accident, the motor vehicle owner does not claim the cost of repairing such a motor vehicle. The owner of a written-off motor vehicle is supposed to claim for the difference between their motor vehicle’s pre – accident value and the salvage value. 44.The motor vehicle assessment report on record shows that the Plaintiff’s motor vehicle’s pre-accident value was Kshs. 620,000/= while its salvage value was Kshs. 130,000/=. Therefore, the Plaintiff ought to have claimed for a sum of Kshs. 490,000/= being the value of his totally damaged motor vehicle. To this end, this court relies on Permuga Auto Spares & another v Margaret Korir Tagi [2015] eKLR, the Court stated thus: “It is the Court's view that once a vehicle has been written off, the only compensation is the per-accident value, less salvage value as assessed and other reasonable consequential expenses that are subject to prove. There would ordinarily be assessment charges, towing charges, excess but not loss of user. The payment of the preaccident value is made to bring the owner to as near as possible to the state he would have been if not for the accident and loss…” 45.Similarly, The Court of Appeal in Jimnah Munene Macharia vs. John Kamau Erera Civil Appeal No. 218 of 1998 was of the view that: “Where there is no proof of actual repair the plaintiff is only entitled to the pre-accident value less the salvage value.” (See also Bungoma Line Sacco Society Limited v Super Bargains Hardware (K) Limited [2021] eKLR)

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46.The Plaintiff in this case claimed for the repair costs of Kshs. 347,000/=. Parties are bound by their pleadings. Therefore, this court cannot award the Plaintiff Kshs. 490,000/= which was legally due to him, but unfortunately, the same was not pleaded. 47.For the reasons above, this court awards the Plaintiff the pleaded and proved sum of Kshs. 347,000/= for material damage. (b)Special Damages 48.The Plaintiff pleaded for an award for Special Damages of Kshs. 540,700/= broken down as follows: a) Assessment fees – Kshs. 6,000/= b) Copy of records – Kshs. 1,100/= 49.The law in this jurisdiction is that special damages must be pleaded and strictly proved. This legal position was reiterated by the Court of Appeal in Herbert Hahn v Amrik Singh [1985] eKLR as follows: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 50.This court will proceed to determine whether the Plaintiff strictly proved the Special Damages pleaded in the Plaint herein. 51.The Plaintiff placed before this court a receipt dated 23 rd May 2025 from Maka Automotive Assessors for Kshs. 6,000/= and two receipts from NTSA

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dated 12th May 2025 for Kshs. 1,100/= proving the pleaded Special Damages. 52.Given the foregoing, this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 1,100/=. DETERMINATION 53.The upshot of the foregoing is that judgment is entered against the 1 st Defendant in the following terms:a) Liability - 100% b) Material Damage / Repair Costs – Kshs. 347,000/= c) Special Damages – Kshs. 7,100/= 54.The repair costs awarded will accrue interest at court rate from the date of this judgment till payment in full, while the special damages will accrue interest at court rate from the date of filing this suit till payment in full. 55.The suit against the 2nd and the 3rd Defendants is dismissed with no order as to costs. 56.The Plaintiff will have the costs of this suit. Read, signed, and delivered in open Court at Bungoma this 06th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintiff C/A: Mr. Rioba

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