https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/761

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E193 OF 2025** **AMOS WANYONYI WAMALWA…………..…………..………….…………….PLAINTIFF** **VERSUS** **KENNETH KARANI…………….……………….…………..………………1ST DEFENDANT** **JOHN ODEGI ODHIAMBO………………………………………………..2ND DEFENDANT** **JUDGMENT** 1. Amos Wanyonyi Wamalwa (“the Plaintiff”) instituted this suit through a Plaint dated 08th May 2025, seeking judgment against the Defendants jointly and severally for: 2. *General damages, past, present and future medical and nursing expenses* 3. *Future medical expenses* 4. *Special damages Kshs. 7,040/=* 5. *Costs* 6. *Interest* 7. *Any other relief this Honourable Court may deem fit to grant* 8. The Plaintiff pleaded that on 26th April 2025, while he was lawfully riding motor cycle registration number KMDM 328 Z (“the motorcycle”) along Bungoma – Malaba road, the 1st Defendant’s motor vehicle registration number KDQ 747 T (“the motor vehicle”) was carelessly and negligently driven by the 2nd Defendant causing it to veer off its lane and knock the motorcycle thereby occasioning him severe bodily harm. 9. The Plaintiff further averred that the accident was caused by the Defendants’ negligent acts and omissions enumerated in paragraph 5 of the Plaint. He added that the accident occasioned him loss and damage, hence this suit. 10. The Defendants entered appearance and filed their respective Statements of Defence denying all the particulars of negligence attributed to them by the Plaintiff. They also invited the Plaintiff to strict proof of all the averments in his Plaint. 11. The Defendants also pleaded in the alternative that if the accident herein occurred then the same was caused or contributed by the Plaintiff’s negligent acts enumerated in the Statements of Defence herein. They urged this court to dismiss this suit with costs. 12. The Plaintiff responded to the Defendants’ Statements of Defence through Replies to the Statements of Defence dated 14th June 2025 reiterating the averments in his Plaint. 13. The Defendant urged this court to dismiss the Plaintiff’s case with costs. 14. It is against this backdrop that this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Amos Wanyonyi Wamalwa** adopted his witness statement dated 08th May 2025 as his evidence in chief. His testimony was that while riding the motorcycle on the left side of Bungoma – Malaba road headed to Bungoma general direction near Zerozero junction, the motorcycle which was being driven from the opposite direction, abruptly turned right to join Chwele road without indicating or stopping to give way, thereby knocking down his motorcycle. 2. He added that the accident caused him injuries to the head, forehead, upper lip, neck, chest, left hand, left shoulder joint, and left knee joint. He further stated that he is yet to fully recover from the said injuries since he still goes to the hospital for checkups and takes painkillers for the aches. 3. He reiterated that he wore a reflector jacket and a helmet on the date of the accident. He denied hitting the motor vehicle. 4. In cross-examination, he stated that he lost his driving licence during the accident. He conceded that the accident’s sketch maps were not before this court. He also stated that he could not apply the brakes instantly before the accident since the motor vehicle turned abruptly. 5. **PW2 Dr. Ombongi Haron** of Bungoma County Referral Hospital produced the Plaintiff’s P3 form and outpatient card all dated 27th April 2025, showing that the Plaintiff sustained the injuries pleaded in paragraph 6 of the Plaint. He also produced a receipt for Kshs. 2,000/= for the Plaintiff’s medical expenses. 6. In cross-examination, he stated that the Plaintiff sustained soft tissue injuries which were assessed as maim and must have recovered by now. 7. **PW3 Dr. Ekesa Mulyanga,** a specialist general surgeon and trauma surgeon, produced the Plaintiff’s medical report dated 28th April 2024 showing that the accident caused the Plaintiff to sustain multiple soft tissue injuries and psychological trauma. He also produced a receipt for Kshs. 4,000/= that he charged the Plaintiff for filling the said medical report. He added that the Plaintiff would require Kshs. 20,000/= - Kshs. 25,000/= in future medical expenses. 8. **PW4 No. 76835 PC Kimani Njuguna** of Bungoma Police Station traffic produced the police abstract dated 29th April 2025 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 97/25/04/2025. He also stated that he was the accident’s investigating officer. 9. His testimony was that the accident occurred when the motor vehicle turned right at Zerozero area to join Chwele road only for it to hit the motorcycle, which was coming from Malaba general direction. He added that the accident was still under investigation. 10. He stated in cross-examination that the 1st Defendant was not to blame for the accident. He could not tell if the Plaintiff was a qualified driver at the time of the accident. He could not also tell if the Plaintiff wore a helmet at the time of the accident. 11. He admitted that whereas he prepared the accident’s sketch map, he had not produced the same as an exhibit. He added that the Plaintiff did not hit the motor vehicle from behind but hit the motor vehicle on the left side, hence he could not be blamed for the occurrence of the accident. **Defendants’ Case** 1. **DW1 Fredrick Omondi Obuya** adopted his witness statement dated 26th November 2025 as his evidence in chief. He testified that he runs a car hire business at Kisumu Airport. He recalled that the 1st Defendant had entrusted him with the motor vehicle for car hire business. It is against this backdrop that he hired the motor vehicle to the 2nd Defendant on 23rd April 2025 for the 2nd Defendant to run his own errands in Bungoma. 2. He conceded that the 1st Defendant was the motor vehicle’s registered owner. He added that the terms of the car hire agreement were that the 2nd Defendant was to be liable for any accident during that period of car hire. 3. He admitted that he had not filed the car hire agreement between him and the 1st Defendant as well as the car hire agreement between him and the 2nd Defendant. 4. **DW2 Odegi John Odhiambo** adopted his witness statement herein as his evidence in chief. He admitted driving the motor vehicle at the time of the accident. His testimony was that the accident occurred along the road heading to Chwele when the motorcycle the Plaintiff was driving hit his motor vehicle at the rear. 5. In cross-examination, he denied knowing the 1st Defendant in person. He added that he hired the motor vehicle from DW1. He also stated that he was neither the 1st Defendant’s employee nor agent at the time of the accident. He further stated that he was not undertaking the 1st Defendant’s business at the time of the accident. 6. He took the position that the 1st Defendant should be blamed for the accident given that he was the motor vehicle’s insured at the time of the accident. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. Having fully appreciated the written submissions on record, this court elects not to regurgitate them here but only to highlight the key points raised therein. 2. There is no dispute that the accident herein occurred when the Plaintiff was riding the motorcycle and the 2nd Defendant was driving the motor vehicle. It is also common ground that the 1st Defendant was the motor vehicle’s registered owner at the time of the accident. 3. The parties herein are also in agreement that the accident caused the Plaintiff to sustain bodily injuries. 4. The foregoing inclines this court to find and hold that the only issue for determination is liability and quantum. **Liability** 1. The Plaintiff pleaded in their Plaint that the 1st Defendant, being the motor vehicle’s registered owner, was vicariously liable for the 2nd Defendant’s negligent acts and omissions which allegedly caused the accident. The 2nd Defendant, on his part, took the position that the 1st Defendant was liable for the accident given that he was the motor vehicle’s insured at the time of the accident. 2. It should be remembered that the 2nd Defendant corroborated DW1’s testimony that he had hired the 1st Defendant’s motor vehicle from DW1 at the time of the accident. He also stated that he was not the 1st Defendant’s agent or servant at the time of the accident, and that he was not undertaking the 1st Defendant’s business when the accident occurred. 3. The foregoing begs the question whether, in view of the 2nd Defendant’s uncontroverted testimony on his relationship with the 1st Defendant at the time of the accident, the 1st Defendant can be held vicariously liable for the 2nd Defendant’s negligent acts or omissions. 4. In **Amalgamated Logistics International Ltd & another v MMK (2020) eKLR,** the Court of Appeal stated as follows on when vicarious liability arises: - *“ Vicarious liability has been well elucidated in Salmond on Torts, 1st edition at Page 83 as;* *“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.”* *This Court in Joseph Cosmas Khayigila vs Gigi & Co. Ltd & Another, Civil Appeal No. 119 of 1986 established a clear test for vicarious liability as follows: -* *“In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”* 1. Nzioka J in **Njonge & another v Kingoo (Civil Appeal E039 of 2024) [2026] KEHC 3068 (KLR)** simplified the doctrine of vicarious liability as follows: *“…Pursuant to the aforesaid, for the respondent herein to have been held liable, the appellant needed to prove that the 4th respondent caused the accident when undertaking a task or duty on behalf or for the benefit of the 3rd respondent. There is no evidence to that effect…I entirely associate with the sentiments in the afore case of; Ormrod Vs. Crossville Motor Services Ltd. (supra) that mere permission to drive a vehicle when the driver is on a frolic of their own does not make the owner of the vehicle vicariously liable.”* 1. The common thread running through the authorities above is that a motor vehicle’s registered owner can only be vicariously liable for their motor vehicle driver’s negligent acts or omissions if the said driver was the motor vehicle registered owner’s agent or servant, or the driver was undertaking a task on behalf of the motor vehicle owner when the accident occurred. 2. The uncontroverted evidence on record is that the 2nd Defendant was on a frolic of his own when the accident occurred, and that the 2nd Defendant was on a frolic of his own when the accident occurred. Therefore, the 1st Defendant cannot be vicariously liable for the 2nd Defendant’s negligent acts or omissions that may have caused the accident. 3. Turning to the question of who is to blame for the accident, the Plaintiff’s testimony was that the accident occurred when the 2nd Defendant abruptly turned without indicating at Zerozero junction to join Chwele road, only to knock his motorcycle, which was coming from the Malaba general direction. 4. The 2nd Defendant disputed the Plaintiff’s version of events on how the accident occurred by stating that the accident occurred on Chwele Road when the Plaintiff’s motorcycle hit the motor vehicle from behind. 5. PW4, who investigated the accident, simply stated that the 2nd Defendant was to blame for the occurrence of the accident without giving an elaboration of what informed his opinion. He added that the Plaintiff hit the motor vehicle on the left side, and that the accident was still under investigation. His evidence on the circumstances under which the accident occurred was of very little evidential value. 6. What this court gathers from the evidence above on the circumstances under which the accident occurred is that a collision occurred between the motorcycle and the motor vehicle as the motor vehicle turned at Zerozero junction to join Chwele road while the motorcycle was being driven from Malaba general direction. 7. The Highway Code requires drivers who seek to join another road from a highway to yield to oncoming motor vehicles or road users before turning or exiting the highway. On the face of it, it would appear that the Plaintiff had a right of way before the 2nd Defendant could turn at Zerozero junction to join Chwele road. 8. However, in the absence of the sketch map, this court cannot tell if the accident occurred before or after the motor vehicle had already turned to join Chwele road. The sketch map would have also enabled this court to determine the point of impact for this court to apportion liability between the Plaintiff and the 2nd Defendant. Further, in the absence of the motor vehicle and the motorcycle inspection reports, this court cannot tell whether the motorcycle hit the motor vehicle on the left side or on the rear side as alleged by the Plaintiff and the 2nd Defendant. 9. It is also surprising that despite the Plaintiff’s pillion passenger testifying before this court in another case arising from this accident, the Plaintiff did not deem it fit to call the said pillion passenger as a witness. 10. The foregoing shows that the evidence on record on the circumstances under which the accident occurred was simply the Plaintiff’s word against the 2nd Defendant’s word. In the absence of the sketch maps, inspection reports, and any other eyewitness account on how this accident occurred, this court was left at sea on how to apportion liability between the Plaintiff and the 2nd Defendant. 11. Be that as it may, accidents do not just occur; they are caused, save for inevitable accidents or accidents caused by an act of God. There is no indication that the accident herein was inevitable or that it was caused by an act of God. Therefore, there must be a person or persons responsible for the occurrence of this accident. 12. The Court of Appeal in **Lakhamshi v the Attorney General (1971),** when confronted with a situation like the one obtaining in this case, where the evidence on record is barely adequate to apportion liability between two drivers, held that where it cannot be precisely determined who between two drivers was to blame for the accident, the liability is shared equally. 13. The holding in the Lakhamshi case (supra) was in line with the holding in **Baker V Market Harborough Industrial Co-operative Society LTD [1953] 1 WLR 1472 at 1476**, where Denning L.J. (as he then was) observed inter alia as follows: *“Every day, proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw any distinction between them…….. “* 1. Given the reasons above, and guided by the authorities above, this court finds and holds the Plaintiff and the 2nd Defendant equally to blame for the occurrence of the accident. **Quantum of Damages** 1. **General Damages for pain and suffering** 2. The Plaintiff pleaded in paragraph 6 of his plaint that the accident caused him to sustain multiple soft tissue injuries and psychological trauma. The Plaintiff’s uncontroverted medical evidence on record corroborated the Plaintiff’s averments on the injuries he suffered as a result of the accident. 3. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved on a balance of probabilities that, arising from the accident herein, he sustained multiple soft tissue injuries assessed as maim, and psychological trauma. 4. In determining the quantum of damages herein, this court is guided by the holding in **Stanley Maore vs Geoffrey Mwenda [2004] eKLR**, where the Court of Appeal stated as follows: *“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”* 1. This court has given due regard to the parties’ authorities on quantum. 2. The Defendants urged this court to make an inordinately low award under this head by placing reliance on authorities where Plaintiffs sustained less severe injuries than the ones sustained by the Plaintiff in this case. The Plaintiff’s counsel on his part cited authorities where Plaintiffs sustained more severe injuries than the ones sustained by the Plaintiff herein. 3. Clearly, the said authorities cannot be relied upon by this court in making an award under this head. 4. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Shiabulo v Shikwati (Civil Appeal E066 of 2024) [2026] KEHC 1428 (KLR)** where the court set aside an award of Kshs. 300,000/= and substituted it with an award of Kshs. 200,000/= for head injury with mild loss of consciousness, blunt injury to the head, blunt injury to the chest, blunt injury to the left knee, and lacerations on the left leg. 5. Guided by the authority above, and considering the fact that the Plaintiff herein did not suffer any permanent or temporary incapacity, this court makes an award of Kshs. 200,000/= under this head. 6. **Future medical expenses** 7. The Plaintiff pleaded in paragraph 7 of his Plaint for future medical expenses for further treatment and check-ups. 8. The Court of Appeal in **Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR** stated as follows regarding claims for future medical expenses: - *“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -* *“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof...”* *We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”* 1. The Plaintiff, having pleaded for future medical expenses, guided by the authority above, the next hurdle the Plaintiff needed to surmount before an award under this head is made is to prove the pleaded future medical expenses. 2. The medical report dated 28th April 2024 produced by PW3 corroborated the Plaintiff’s claim for future medical expenses for anti-inflammatory drugs and psychosocial support. 3. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved the claim for future medical expenses. 4. PW3 placed the cost of the anti-inflammatory drugs and psychosocial support at between Kshs. 20,000/= and Kshs. 25,000/=. 5. However, the Plaintiff testified that he only needed future medical expenses for painkillers and medical checkups. He did not state if he needed future medical expenses for psychosocial support. 6. In the circumstances, this court is of the considered view that Kshs. 10,000/= will be reasonable future medical expenses for the Plaintiff’s painkillers and medical check-up. 7. **Special Damages** 8. The Plaintiff pleaded for special damages of Kshs. 7,040/= in paragraph 6 of his Plaint. 9. The receipt for Kshs. 4,000/= for the medical report issued by Dr. Ekesa, as well as receipts from NTSA, Ram Chemist, and Bungoma County Referral Hospital, proved the pleaded special damages of Kshs. 7,040/=. 10. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 7,040/=. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the 2nd Defendant in the following terms:- 2. *Liability………………………………50%:50%* 3. *General damages…………………...Kshs. 200,000/=* 4. *Future medical expenses…………..Kshs. 10,000/=* 5. *Special Damages…………………….Kshs. 7,040/=* *Grand Award……………………..Kshs. 217,040/=* *Less 50%* ***Net Award…………………………Kshs. 108,520/=*** 1. The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full, while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 2. The Plaintiff will have the costs of this suit subject to the ratio of liability herein. 3. The Plaintiff’s suit against the 1st Defendant is dismissed. The 1st Defendant will bear his own costs of this suit since the Plaintiff sued him under an honest belief that the 1st Defendant, being the motor vehicle’s registered owner, was vicariously liable for the 2nd Defendant’s actions. Further, the 1st Defendant had an option to file an application to be struck out from these proceedings but elected not to do so, thereby incurring unnecessary litigation expenses. 4. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma, this 14th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Bwonchiri for the Plaintiff Ms. Otieno for the 1st Defendant Mr. Maruti for the 2nd Defendant C/A: Mr. Rioba