Mokandu v Ochieng [2026] KEHC 16847 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL DIVISION (APPELLATE SIDE)

CIVIL APPEAL NO. E106 OF 2025

BETWEEN

PHILLIP MOKANDU….………..............................................................APPELLANT

AND

JOHN OTIENO OCHIENG…………………………………………..RESPONDENT

(Being an appeal from the Judgement and Decree of Hon. B.A Luova, RM/Adjudicator dated 7th November 2024 at the Small Claims Court at Machakos in SCCC No. E1080 of 2024)

JUDGMENT

Introduction and Background

1. In the subordinate court, the Respondent filed suit against the Appellant stating that on or about 28th August 2021, his motor vehicle registration number KAJ ***F was parked at Katani Road near Syokimau Trading Centre when the Appellant so negligently drove or managed motor vehicle registration number KCE ***T that it destroyed the security gates and collided with the Respondent’s parked vehicle, pushing it against a wall and causing extensive damage.

2. The Respondent particularized negligence against the Respondent by stating that he failed to maintain proper control, drove at excessive speed, drove without due care and attention, failed to stop, swerve, brake or take evasive measures, drove carelessly and recklessly and encroached onto the lawful lane of KAJ ***F, causing the accident. He averred that the matter was reported to Athi River Police Station and a Police Abstract dated 30th August 2021 was issued where the police blamed the driver of KCE ***T for the accident.

3. The Respondent states that that his vehicle was repaired at a cost of Kshs. 118,400.00, paid by cash in lieu of repairs by Cannon General Insurance Company Limited, which insured the vehicle and now sought to recover the amount under subrogation. Further, that the insurer also paid Kshs. 30,000.00 for car hire charges, Kshs. 69,80.00 in assessment fees and Kshs. 30,790.00 in investigation/tracing costs. As such, the Respondent sought judgment in the sum of Kshs. 186,170.00 and costs of the claim

4. The Appellant filed a response to the claim denying knowledge of the alleged accident or that he negligently drove motor vehicle KCE ***T. That if the accident did occur, he averred it was solely caused by the negligence of the Respondent as it was parked at an undesignated area and obstructed the lawful path of KCE ***T and that he failed to mind the safety of other road users and caused the accident. In any case, the Appellant admitted that he was the driver of KCE ***T at the material time but he denied vicarious liability and denied the claim for Kshs. 186,170.00, putting the Respondent to strict proof and he urged the court to dismiss the claim with costs.

5. At the hearing, the Respondent presented four witnesses; Francis Mwaniki, a motor assessor (CW 1), Benjamin Nduva an employee at the Respondent’s insurer (CW 2), 60244 Sgt. Phyllis Mwikali, a police officer based at Athi River Police Station (CW 3) and the Respondent also testified on his own behalf (CW 4). On his part, the Appellant testified on his own behalf (RW 1). The parties then filed written submissions in support of their respective positions and the Adjudicator rendered the judgment on 7th November 2024. The subordinate court identified three issues for determination; Who was liable for the accident?, whether the insurer is entitled to claim under the doctrine of subrogation and whether special damages had been proved.

6. On liability, the subordinate court held that the Respondent produced a police abstract confirming the accident was reported at Athi River Police Station and that the Respondent did not witness the accident as he had parked his vehicle in a garage and was informed by the Appellant. CW 3 produced the police abstract blaming the driver of KCE ***T and that the Appellant did not dispute the occurrence of the accident but denied negligence, claiming it was inadvertent. The learned Adjudicator found that in cross-examination, it was not disputed that the Respondent’s vehicle was stationary and parked inside a garage and that the Appellant, while trying to avoid a collision with a vehicle parked outside his gate, inadvertently accelerated by mistake, causing the collision. The Adjudicator found the Appellant wholly liable for causing the accident, as he admitted the occurrence of the accident where his vehicle collided with the Respondent’s stationary vehicle.

7. On subrogation, the Appellant had argued that the Respondent’s failure to plead the doctrine of subrogation rendered the claim defective. The subordinate court held that CW 2 confirmed the Respondent’s vehicle had a valid policy at the time of the accident and that the accident was reported and the Respondent confirmed he received money from the insurance to repair his vehicle and the police abstract indicated his vehicle was insured by Metropolitan Cannon Insurance under a valid policy. The Adjudicator found that failure to plead subrogation was not fatal to the claim and relying on Kenya Power & Lighting Company Limited v Julius Wambale & another [2019] KEHC 8094 (KLR) , the Adjudicator set out the criteria for subrogation to crystallize; (1) an existing insurance contract between insurer and insured; (2) compensation made by the insurer for financial loss accrued by the insured occasioned by a third party; (3) the suit must be instituted in the name of the insured; and (4) the suit must relate to the subject of the contract of insurance. The Adjudicator found the insurance company was entitled to recover the outlay from the Appellant

8. On special damages, the subordinate court noted that the documents produced were the Tracing report by Sunrays General Services Limited and an invoice of Kshs. 29,400.00; Claim Requisition dated 7th November 2023, Cash in lieu of repairs of Kshs. 71,900.00 and Kshs. 39,300.00 issued to the Respondent who signed a discharge voucher; Claim payment requisitions dated 27th September 2021 Ref No. 211524763 and 7th October 2021 Ref No. 211528822 and Panorama Car Hire services invoice of Kshs. 30,000.00 dated 2nd October 2021 and an ETR receipt evidencing payment. As such, the subordinate court found that a total of Kshs. 170,600.00 had been specifically pleaded and strictly proved. In sum, liability was assessed at 100% against the Appellant, special damages of Kshs. 170,600.00 was awarded and the Respondent was also awarded costs of the claim.

9. The Appellant is aggrieved with these findings and appeals to the court through his Memorandum of Appeal dated 30th April 2025. He avers that the Learned Adjudicator erred in law and in fact in apportioning liability at 100% against him, by failing to find that the Respondent was not entitled to an award of special damages as the Respondent neither pleaded nor proved the doctrine of subrogation, that the Learned Adjudicator erred in law by writing a judgment that is not based on proper evaluation of the pleadings and evidence on record of the Appellant and that she failed to appreciate or consider the written submissions of the Appellant to the effect that the doctrine of subrogation must be specifically pleaded and proved

10. In the circumstances, the Appellant contends that the judgment of the subordinate court is a miscarriage of justice and seeks that the appeal be allowed, that the judgment of the subordinate court be set aside and the costs of this appeal and that of the subordinate court’s suit be borne by the Respondent. The court directed that the appeal be canvassed by way of written submissions and I have considered the same together with the record and I will make relevant references to them in my analysis and determination below.

Analysis and Determination

11. In determining this appeal, I am aware that the court’s jurisdiction is limited by section 38(1) of the Small Claims Court Act which provides that ‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ A court limited to matters of law is not permitted to substitute the Subordinate Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (Mati v Returning Officer Mwingi North Constituency & 2 others [2018] KECA 700 (KLR)]. Thus, the duty of this court is to determine whether the subordinate court’s conclusions were supported by the evidence on record and the law.

12. In his submissions, the Appellant has framed two issues for the court’s determination: Whether the Insurer is entitled to a claim under the doctrine of subrogation and whether the Respondent proved his case on a balance of probability. On the doctrine of subrogation, the Appellant's submission is that the same was neither pleaded nor proved, and that the claim ought to fail on that basis. Reliance is placed on various cases including Fourways Travel Services (A) Ltd v Drumcon (1972) Ltd [2015] KEHC 2923 (KLR) and Gabriel Mwashuma v Mohammed Sajjad & another [2015] KEHC 4068 (KLR) where the plaintiffs’ claims failed because they did not plead subrogation rights and the court held that subrogation must be specifically pleaded and proved.

13. On his part, the Respondent submits that failure to expressly plead subrogation was not fatal because the material facts giving rise to the doctrine were pleaded and proved in evidence including the existence of a valid insurance contract, occurrence of the insured risk and payment by the insurer to indemnify the insured. Further, that both witness statements clearly disclosed that the suit was brought under the doctrine of subrogation and the Appellant was fully aware of the nature of the claim and suffered no prejudice.

14. The Respondent submits that the Small Claims Court operates under a streamlined procedure using Form SCC-1 and pursuant to section 23 of the Small Claims Court Act and Rule 3 of the Small Claims Court Rules, which limits the level of legal detail that can be included. The Respondent relies on the case of Odd Jobs v Mubia [1970] EA 476, where the court held that a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue was left to the court for determination. Further, that in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR, the Court of Appeal held that parties are bound by their pleadings, but the court may determine issues which emerge from the evidence and which the parties have addressed during the trial. He also relies on the Court of Appeal decision in Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] KECA 112 (KLR) where it was held that:

26. The essence of the doctrine of subrogation is not in contention. It allows an insurer after compensating an insured for any loss under the insurance contract to step into the shoes of the insured. In that, the insurer is entitled to all the rights and remedies the insured might have against a third party in respect of the loss compensated. As per the applicant, the manner in which such rights and remedies may be enforced by an insurer is what requires the Supreme Court’s clarification. In an effort to illustrate the perceived uncertainty on that point of law, the applicant’s argument centred on how different jurisdictions had tackled the issue differently.

15. The Respondent also relies on this court’s decision in Omar v Alginza Automobiles Limited & 2 others [2025] KEHC 14663 (KLR) where it was held as follows:

21. For the doctrine of subrogation to be invoked properly, there are conditions precedent. First, there must be in existence a contract of insurance, risk must have crystallized and there must be actual payments made in order to indemnify the insured. This was held in the case of Egypt Air Corporation v Suffish International Food Processors (U) Ltd and Another [1999] 1 EA 69 where the Court defined the basis of the doctrine of subrogation as follows:

“ The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity and gains its operative force from payment under that contract; the essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.”

22. In order to receive compensation from an insurance company, an insured person must demonstrate to the court that he had an existing contract (Insurance policy) with the insurance company. This was the position of the court in AIG Insurance Company Limited v Benard Kiprotich Kirui [2022] eKLR.

16. Having gone through the pleadings, the submissions and the authorities above, I note that the Statement of Claim pleaded the existence of a valid insurance contract between the Respondent and his insurer Cannon General Insurance under a valid policy; the occurrence of the insured risk, that is, the accident involving the two subject vehicles and payment by the insurer to indemnify the Respondent, that is, the cash in lieu of repairs, car hire charges, assessment fees, and investigation costs.

17. In my view, these are the material facts that give rise to the doctrine of subrogation and the doctrine itself is a legal consequence of those facts. Further, the witness statements filed alongside the Statement of Claim expressly stated that the claim was brought under the doctrine of subrogation. CW 2’s statement of 22nd August 2024 stated "That the Cannon General Insurance Company Limited is entitled to recover the said outlay from the party at fault in exercise of its subrogation rights by bringing this suit in the name of the Plaintiff - the Insured person." The Respondent’s own witness statement also referred to the insurer seeking to recover under subrogation.

18. It therefore follows that the issue of subrogation was disclosed in the witness statements and documentary evidence filed by the Respondent. The Appellant's counsel cross-examined both the Respondent and CW 2 on the issue, demonstrating that he was fully aware of the nature of the claim. The Appellant's submissions in the subordinate court extensively addressed the subrogation issue, arguing that it was not pleaded. The authorities cited by the Appellant are distinguishable because in those cases, the plaintiffs had not pleaded subrogation and had not disclosed the insurance payment until cross-examination. In the present case, the subrogation issue was disclosed in the witness statements filed with the claim.

19. I also find that the trial court's finding that the insurance company was entitled to recover the outlay is supported by the evidence as it found that there was a valid insurance contract between the Respondent and Metropolitan Cannon General Insurance, compensation was made by the insurer for the financial loss accrued by the insured and the suit was instituted in the name of the insured, that is the Respondent. These are precisely the criteria set out in Kenya Power & Lighting Company Limited v Julius Wambale & Another(supra) that the subordinate court relied on and I therefore find that the trial court did not err in law in finding that failure to expressly plead the doctrine of subrogation was not fatal. The material facts were pleaded, the doctrine was disclosed in the witness statements and evidence and the Appellant suffered no prejudice. The appeal on this ground fails.

20. On whether the Respondent proved his case on balance of probabilities, the Appellant submits that the trial court ignored or failed to properly consider material evidence and misapprehended the evidence. That the Respondent relied solely on a police abstract and no further evidence was produced to support his version of how the accident occurred and that the OB extract containing the circumstances that led to the accident did not form part of the evidence. The Appellant submits that the onus of proving a case lay with the Respondent who failed to provide corroborating evidence and he relied on the case of Kennedy Nyangoya v Bash Hauliers [2016] KEHC 2616 (KLR) where it was held that even if a police abstract blames a party, evidence must lead to that effect. Reliance is also placed on Khambi and Another v Mahithi and Another [1968] EA 70, quoted in Kamau v Mukhango (Civil Appeal 29 of 2021) [2024] KEHC 13317 (KLR), where it was held that an appellate court will not interfere with apportionment of liability unless there is some error in principle or the apportionment is manifestly erroneous.

21. On his part, the Respondent submits that the apportionment of liability at 100% is justified by the totality of the evidence as the Appellant's own witness statement, adopted as his evidence in chief, stated that as he was leaving his residence, he noticed a car parked outside the gate, steered leftwards but inadvertently accelerated and hit the adjacent gate and a motor vehicle near the gate. That the trial court appreciated and gave due weight to this evidence, finding the Appellant negligent because he collided with the Respondent’s stationary vehicle and CW 3 confirmed the occurrence of the accident and produced a police abstract blaming the Appellant. Further, that the Appellant himself admitted that he collided with the Respondent’s vehicle, though he stated it was inadvertent.

22. The Respondent cited the court’s decision in Kenjap Motors Ltd & another v James Kemosi Nyaigero [2020] KEHC 3384 (KLR) where Odunga J. (as he was then) quoted Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, where it was held that:

“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his court at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ..... Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.... There may be occasions when criminal or traffic offences are committed without giving rise to civil liability.”

23. The Respondent also relied on this court’s decision in Rose Makombo Masanju v Night Flora alias Nightie Flora & another [2016] KEHC 1667 (KLR) where the court overturned the trial court's apportionment and found the 1st respondent 100% liable where her vehicle veered off the road and hit a stationary vehicle parked off the road. The court found the Learned Trial Magistrate to have erred both in law and fact when he made a conclusive finding that the 2nd respondent’s Motor Vehicle had been wrongly parked on the road with part of its body on the road because no evidence was adduced in that respect.

24. Going through the record, I am inclined to agree with the Respondent that the trial court's finding on liability is supported by the evidence on record because first, the Appellant admitted in his own witness statement that was adopted as evidence in chief) that "I was leaving my residence along Katani Road, Syokimau, at around 10:00am, when I noticed a vehicle parked outside the gate on my right-hand side as I turned to join the road. Therefore, I steered leftwards to avoid hitting the said vehicle, but inadvertently accelerated and consequently hit the adjacent gate. A motor vehicle near the said gate was slightly hit following the said impact." This is a clear admission that the Appellant's vehicle collided with the Respondent’s stationary vehicle and the Appellant's explanation that the accident was "inevitable" and did not result from negligence is not supported by the evidence. The Appellant admitted he "inadvertently accelerated" which is an admission of a failure to maintain proper control of the vehicle.

25. Second, in cross-examination, the Appellant himself stated: "Motor vehicle KAJ 863F was parked when I rammed on to it. I was in motion. Given the circumstances, I tried to brake but the accident was inadvertently. I accelerated by mistake. I reported the matter to the police and I was issued with an abstract. I have not produced it. It took me 2 weeks to get an abstract as claimant had prevailed on the police not to issue me with one until I admit liability and pay for the cost of repair. The claimant's motor vehicle was parked. He did nothing to cause the accident." This is a clear admission that the Respondent’s vehicle was stationary and he did nothing to cause the accident. Therefore, the Appellant's own evidence establishes that he was the sole cause of the accident. Third, the police abstract blamed the Appellant for the accident and while the Appellant correctly notes that a police abstract is not conclusive proof of liability, in this case, the abstract is corroborated by the Appellant's own admissions.

26. Fourth, the Appellant's argument that the Respondent failed to call an eyewitness is misplaced. The Respondent was not present at the scene as he had parked his vehicle and left it. However, the Appellant himself was present and admitted the collision and the Appellant's own evidence is the best evidence of what happened. Fifth, the trial court's finding that the Appellant was negligent in the manner he drove the said vehicle as he admits to occurrence of the accident where his vehicle collided with that of the Claimant which was stationary is a finding of fact based on the evidence. The Appellant has not demonstrated that this finding was perverse or that no reasonable tribunal could have arrived at it. Sixth, the authorities relied upon by the Respondent are apt because in Kenjap Motors Ltd(supra) it was held that a driver must take reasonable steps to avoid hitting stationary objects and in Rose Makombo Masanju(supra) it was held that a driver who veers off the road and hits a stationary vehicle is wholly liable. I therefore hold that the trial court's finding of 100% liability against the Appellant is supported by the evidence and the Appellant's own admissions establish that he was the sole cause of the accident. The appeal on this ground also fails.

27. On special damages, whereas the Appellant's Memorandum of Appeal does not specifically challenge this award, he implicitly states in his submissions that the same was not entitled to be awarded to the Respondent as he did not plead subrogation. However, I note that the trial court’s award was based on requisitions, invoices and documents that indicated that money was actually paid which is in line with the principle of an award of special damages that a party must present actual receipts of payments made to substantiate loss or economic injury (see Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] KECA 822 (KLR)]. I find that the trial court's award of Kshs. 170,600.00 was supported by the evidence and the law and the appeal on this ground fails.

Conclusion and Disposition

28. In the upshot, I find that the appeal lacks merit in its entirety and it is dismissed with costs to the Respondent assessed at Kshs. 25,000.00.

DATED SIGNED AND DELIVERED virtually this 26th DAY OF OCTOBER

2026

............................................................................

J W W MONGARE

JUDGE

In the presence of

1. Ms. Auma for the Appellant

2. Mr. Nganya for the Respondent

3. Abdisalan- Court Assistant