https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/207

Wambui v Kinini & another (Civil Case E050 of 2025) [2026] KEMC 207 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEMC 207 (KLR) Republic of Kenya In the Nyeri Law Courts Civil Case E050 of 2025 MM Gituma, SRM July 1, 2026 Between Alice Wanjiru Wambui Plaintiff and Daniel Thirikwa Kinini 1st Defendant Agnes Wambui Thirikwa 2nd Defendant Judgment 1.The Plaintiff states that on 20th March 2022 at around 1900hrs she was a lawful pillion passenger on motor cycle registration number KMFA 814F at Wendiga junction along Mweiga-Nyahururu road when the 2nd Defendant negligently drove motor vehicle registration number KCC 801R (herein after to be referred to as the suit vehicle) causing the said motor vehicle to lose control and hit the motor cycle as a result the Plaintiff sustained the following injuries:a.Tenderness of the right lower limb.b.Lower back tenderness. 2.The Plaintiff avers that the accident occurred due to negligence on the part of the 2nd Defendant who drove the suit vehicle to wit; driving the suit vehicle at an excessive speed, driving without due care and attention, veering into the lane of the motorcycle, failing to indicate lane change, failing to stop, swerve to avoid the accident and failing to control the suit vehicle. 3.The Plaintiff states that the 1st Defendant is the registered owner/beneficial owner of the suit vehicle and liable for the actions of the 2nd Defendant. 4.The Plaintiff urges that the Defendants are liable for the accident and prays for general damages for the injuries sustained and special damages of Kshs. 5,550/= being Kshs. 5,000/= for the medical report and Kshs. 550/= for the motor vehicle search. Defence 5.The 1st Defendant filed a defence dated 22nd April 2025. The 1st Defendant denied the particulars of negligence attributed to Defendants and put the Plaintiff to strict proof. In the alternative, the Defendant contended that if at all the accident occurred; it was due to negligence on the part of the Plaintiff. He explained that the Plaintiff distracted the driver of the motorcycle, failed to take precautions for her safety and failed to wear a helmet and reflective jacket. He urged that the suit be dismissed. Hearing 6.When the matter came up for hearing three witnesses testified in support of the Plaintiff’s case. PW1, PC Kirui, stated that on 20th March 2022, an accident was reported to have occurred. The accident involved motor vehicle registration number KCC 801R and motor cycle registration number KMFA 814F. The accident occurred at around 7 pm. He explained that the motor vehicle was being driven from Nyahururu towards Nyeri. On reaching Hony river, the vehicle turned right to join another road and hit the motor cycle. As a result, the Plaintiff who was a pillion passenger aboard the motorcycle sustained injuries and was rushed to hospital. PW1 stated that the driver of the motor vehicle was to blame for the accident as the accident occurred on the left lane as you head to Nyahururu and that was the motorcycle’s lane. Upon cross-examination, PW1 admitted that he was not the investigating officer. He stated that he had not availed the police file and sketch maps to the court and was not aware whether the rider of the motorcycle had a license. 7.PW2, a medical doctor, told the court that he examined the Plaintiff on 19th March 2025 and compiled a report based on the history given and the treatment notes availed. He stated that the Plaintiff sustained injuries to her lower limb and back as a result of a road accident. She was first treated at Nyeri PGH and her examination showed that she had tenderness of the lower limb and lower back. He claimed that when he examined her on 19th March 2025, she complained of pain on her right limb. PW2 opined that the Plaintiff sustained minor soft tissue injuries and had recovered well. He produced his report and receipt for the medical report as evidence. Upon cross-examination, PW2 told the court that the Plaintiff did not suffer any permanent incapacitation as she had suffered soft tissue injuries. 8.PW3, the Plaintiff, adopted her statement dated 19th March 2025 as her evidence in chief. The statement was a reiteration of the averments in the Plaint. She produced the documents in her list of documents dated 19th March 2025 being the P3 form, motor vehicle search, statutory notice and demand notice. Upon cross-examination, she claimed that she was wearing a helmet. She stated that she was not aware whether the driver of the suit vehicle was charged with any offence. 9.The 1st Defendant closed his case without calling any witness. The 2nd Defendant did not participate in this matter. The Determination 10.I have read and appreciated the submissions by the 1st Defendant dated 17th June 2026. At the point of writing the judgment, the Plaintiff had not filed submissions. In my view, two issues arise for determination by this court; whether the Defendants are liable for the accident and if liable, the quantum of damages. 11.On liability, the Plaintiff blamed the driver of the suit vehicle i.e the 2nd Defendant for the accident. She claimed that the suit vehicle was recklessly driven causing the accident. In support of her case, the Plaintiff called the evidence of PW1, a police officer. PW1 described to the court the directions that both the suit vehicle and the motor cycle were travelling. He explained that the suit vehicle was turning right onto another road and hit the motorcycle. PW1 told the court that the suit vehicle was to blame for the accident because the accident occurred on the proper lane for the motorcycle. On the other hand, the 1st Defendant blamed the Plaintiff for the accident. He claimed that the Plaintiff failed to take precautions for her safety and distracted the rider of the motorcycle. Be that as it may, despite filing a witness statement, the 1st Defendant did not call the said witness to testify in court. Thus, the averments of the Plaintiff remained largely uncontested and/or unchallenged. 12.In my view, I am persuaded by the evidence of PW1 who gave a description of how the accident occurred. Specifically, that the suit vehicle was turning right and hit the motorcycle. The accident occurred on the motorcycle’s lane. Traffic rules dictate that a motor vehicle that turns to exit the road to the right must first indicate to inform other road users its intent. Thereafter, the said vehicle must give way to the users on the main road/other lane and can only exit when it is clear. In this case, the suit vehicle failed to adhere to the rules which resulted in occurrence of the accident. Consequently, the 2nd Defendant is liable for the accident and so is the 1st Defendant who is vicariously liable. Therefore, I hold that the Defendants are liable for the accident. 13.On quantum of damages, the same is based on the nature of the injuries. The Plaintiff pleaded the following injuries:a.Tenderness of the right lower limb.b.Lower back tenderness. 14.I have carefully perused the medical documents that were availed by the Plaintiff. I note that the above injuries are described in both the medical report dated 19th March 2025 and P3 form. Both documents find that the Plaintiff sustained soft tissue injuries. 15.The courts have held that comparable injuries should be compensated with comparable damages. In HB (Minor suing through mother & next friend DKM) vs Jasper Nchonga Magari & Another (2021) eKLR, the Appellant sustained blunt object injury to the head, and neck, thorax, abdomen and limbs. The injuries were classified as soft tissue thus the appellate court upheld the award of Kshs. 60,000/= by the lower. While upholding the award, the learned Judge cited the case of Cornilliac v St. Louis [1965] 7 WIR 491 on what a court should consider when making an award for pain and suffering:(a)The nature and extent of the injuries sustained.(b)The nature and gravity of the resulting physical disability.(c)The pain and suffering which had to be endured.(d)The loss of amenities suffered; and(e)The extent to which, consequentially, the claimant’s pecuniary prospects have been materially affected. 16.In Homabay Civil Appeal No. E111 of 2021- James Kwanya Rege vs Lizy Awour (minor suing through the father & next friend George Adhiambo Arao), the Respondent sustained bruises on the right hand, blunt trauma to the right hand and chest contusion. The appellate court set aside the award of Kshs. 400,000/= and awarded Kshs. 80,000/=. 17.Taking the above into consideration and noting that the Plaintiff sustained minor soft tissue injuries with no residual effects, I find a sum of Kshs. 80,000/= to be appropriate. 18.As for special damages, it is trite law that special damages should not only be specifically pleaded but also proven. In this case, the Plaintiff pleaded special damages of Kshs. 5,550/= being Kshs. 5,000/= for the medical report and Kshs. 550/= for the motor vehicle search. I have perused the documents produced and find that the Plaintiff produced a receipt of Kshs. 5,000/= for the medical report and a receipt of Kshs. 550/= for the motor vehicle search. Thus, special damages of Kshs. 5,550/ will be awarded. 19.In conclusion, the Plaintiff succeeds in her claim as follows:a.Liability is entered in favor of the Plaintiff as against the Defendants jointly and severally at 100%b.Damagesi.Pain and suffering- Kshs. 80,000/=ii.Special damages- Kshs.5,550/=Total- Kshs. 85,550/=c.Costs of the suit.d.Interest on (b) and (c) at court rates from the date of this Judgment. DATED, SIGNED, AND DELIVERED AT NYERI THIS 1ST DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:…………………………..………………Plaintiff…………………………………………..Defendants…………………………………….Court Assistant