https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/175

Bakari v Tsuma & another (Civil Case E1583 of 2025) [2026] KEMC 175 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 175 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E1583 of 2025 EM Mwamuye, SRM June 25, 2026 Between Abdalla Athman Bakari Plaintiff and Murabu Chaka Tsuma 1st Defendant Kassim Abdillahi Mohamed 2nd Defendant Judgment Introduction 1.The Plaintiff, Abdalla Athman Bakari, instituted this suit against the Defendants seeking general damages, special damages, future medical expenses, costs and interest arising from a road traffic accident which occurred on 20th August 2025 at the Likoni Ferry Crossing Area. 2.The Plaintiff pleaded that while alighting from a ferry at Likoni, motor vehicle registration number KBF 648W Toyota was negligently driven and ran over his left leg causing him serious injuries. He pleaded that the 1st Defendant was the beneficial and/or insured owner of the motor vehicle while the 2nd Defendant was the registered owner. 3.The Defendants filed a Statement of Defence denying ownership, occurrence of the accident, negligence, injuries and liability. In the alternative they pleaded contributory negligence on the part of the Plaintiff. 4.The matter proceeded for hearing on 4th May 2026 when the Plaintiff called three witnesses namely Dr. Darius Wambua Kiema (PW1), Police Constable Jefwa (PW2) and the Plaintiff himself (PW3). The Defendants closed their case without calling any witness or producing any documentary evidence. Written submissions were subsequently filed. Issues For Determination 5.Having considered the pleadings, evidence and submissions, the following issues arise for determination:i.Whether the Plaintiff proved occurrence of the accident.ii.Whether the Defendants were liable for the accident.iii.Whether the Plaintiff sustained the pleaded injuries.iv.Whether the Plaintiff is entitled to damages and if so, the quantum thereof.v.Who should bear costs. Whether the accident occurred 6.The Plaintiff testified that on 20th August 2025 at about 8.30 p.m. he was returning home from work and was disembarking from the ferry at Likoni when motor vehicle registration number KBF 648W, which was also exiting the ferry, ran over his left leg. 7.His testimony was corroborated by: Police Abstract. P3 Form. Treatment records. X-ray report. Medical report. Evidence of PW2, the police officer. 8.PW2 testified that investigations established that the accident occurred at the ferry crossing area and involved the Plaintiff and motor vehicle KBF 648W. He further testified that investigations blamed the driver of the motor vehicle. 9.The Defendants tendered no evidence to challenge the occurrence of the accident. The Court is therefore satisfied on a balance of probabilities that the accident occurred as pleaded. Whether liability was proved 10.The Plaintiff's evidence was that he was a pedestrian/passenger disembarking from the ferry when the motor vehicle moved and ran over his leg. 11.PW2 testified that ferry safety rules require motor vehicles to remain stationary until pedestrians have safely disembarked and that investigations established that the driver failed to accord the Plaintiff the required priority. 12.The Defence alleged contributory negligence but no evidence whatsoever was adduced to support those allegations. 13.The Court of Appeal in Nandwa v Kenya Kazi Ltd [1988] eKLR held that where a plaintiff establishes facts raising a prima facie inference of negligence, the burden shifts to the defendant to offer an explanation sufficient to displace that inference. 14.Similarly, in Pauline Kainyera Simion v Mary Namunya [2021] eKLR, the court held that a defence unsupported by evidence remains mere allegations bereft of evidentiary value. 15.In the present case: The Plaintiff proved occurrence of the accident. The police investigations blamed the driver of the motor vehicle. The Plaintiff was a pedestrian disembarking from a ferry and had priority. The Defence called no witness. No contrary version of events was presented. The allegations of contributory negligence remained mere pleadings unsupported by evidence. 16.I therefore find that the Plaintiff proved negligence against the driver of motor vehicle KBF 648W and that the Defendants are vicariously liable. I apportion liability at 100% Whether ownership was proved 17.The Defence denied ownership. However, the Plaintiff produced an NTSA search showing that motor vehicle registration number KBF 648W was registered in the name of the 2nd Defendant, Kassim Abdillahi Mohamed. No contrary search was produced. 18.The 1st Defendant was pleaded as the beneficial and/or insured owner and did not tender evidence to rebut the Plaintiff's case. I am satisfied that ownership and responsibility for the vehicle were established on a balance of probabilities. Whether the plaintiff sustained injuries 19.The medical evidence was consistent and unchallenged. The Plaintiff sustained: Medial dislocation of the left ankle. Fracture of the left medial malleolus. Fracture of the left lateral malleolus. 20.The injuries were confirmed by: Treatment records. X-ray report. P3 Form. Medical Report by Dr. Darius Kiema. The P3 classified the injuries as Grievous Harm. Dr. Kiema assessed permanent disability at 15%. The Court finds that the Plaintiff sustained the pleaded injuries.Quantum of DamagesGeneral Damages 21.The Plaintiff proposed Kshs. 900,000/= and relied on: Chiba Tim Limited & Another v Ruguru [2025] eKLR. The claimant sustained: Fracture of medial malleolus. Fracture of lateral malleolus. Ankle dislocation. Swollen wound on the leg.The court awarded Kshs. 700,000/=. 22.In the present case the injuries noted include: Medial dislocation of left ankle. Fracture left medial malleolus. Fracture left lateral malleolus. Permanent disability assessed at 15%. Post-traumatic arthritis. Risk of shortening of left lower limb. Lifelong recurring pain. Diminished working capacity. Future physiotherapy requirements. Weakening of fracture site. 23.The Plaintiff's injuries are therefore materially more severe because unlike the claimant in Chiba Tim, there is medical evidence of: Permanent disability. Long-term complications. Reduced earning and working capacity. Future medical treatment. 24.The Plaintiff was also a 71-year-old mason whose occupation involves substantial physical labour. The effect of the injuries on his daily activities is therefore significant. 25.I have also considered the principles in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR and Jabane v Olenja [1986] KLR 661 that comparable injuries should attract comparable awards while taking inflation and the unique facts of each case into account. 26.Taking all relevant factors into consideration, I find that an award of Kshs. 850,000/= as general damages is fair and reasonable compensation for pain, suffering and loss of amenities. Future medical expenses 27.Dr. Kiema recommended:Item AmountMedication Kshs. 18,000Physiotherapy Kshs. 12,000Total Kshs. 30,000 28.The future medical expenses were specifically pleaded and medically supported. I therefore award Kshs. 30,000/= on this head. Special damages 29.The Plaintiff pleaded and proved:Item AmountMedical Report Kshs. 2,000NTSA Search Kshs. 550Total Kshs. 2,550 30.Special damages were specifically pleaded and strictly proved. I award Kshs. 2,550/= on this head. Disposition 31.Judgment is entered in favour of the Plaintiff against the Defendants jointly and severally as follows:a.Liability- 100% as against the Defendant.b.DamagesGeneral damages.............................Kshs. 850,000uture medical expenses................Kshs. 30,000Special damages.............................Kshs. 2,550Total Award Kshs 882,550 Ordersi.Judgment is entered for the Plaintiff against the Defendants jointly and severally in the sum of Kshs. 882,550/=.ii.Special damages shall attract interest from the date of filing suit.iii.General damages and future medical expenses shall attract interest from the date of this judgment until payment in full.iv.The Plaintiff shall have the costs of the suit.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE