https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/714

Nabwile alias Angeline Nabwire v Nyikuli & another (Civil Case E276 of 2025) [2026] KEMC 714 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEMC 714 (KLR) Republic of Kenya In the Bungoma Law Courts Civil Case E276 of 2025 TO Omono, SRM July 9, 2026 Between Anjeline Nabwile alias Angeline Nabwire Plaintiff and Lilian Ingato Nyikuli Defendant and Seamrise Investment Machinery Limited Third party Judgment 1.The Plaintiff moved this court vide a Plaint dated 10th June 2025, where the Plaintiff prayed for judgment against the Defendant for:-a.General damages for pain and sufferingb.Special damages of Kshs. 10,750/=c.Costs of this suitd.Interest on (a), (b), and (c) abovee.Any other relief this Honourable Court may deem just and fit to grant 2.The Plaintiff pleaded in her Plaint that the cause of action herein arose on 03rd March 2025 while she was a lawful fare paying passenger in the Defendant’s motor vehicle registration number KCH 792 P (“the Defendant’s motor vehicle”) along Bungoma – Mumias road when the Defendant’s motor vehicle lost control at Watoya area and hit motorcycle registration number KMFF 135 L (“the motorcycle”) causing her to sustain bodily injuries which she seeks compensation. 3.Further, the Plaintiff averred that the accident was caused by the Defendant’s negligent acts and omissions enumerated in paragraph 5 of the Plaint. 4.The Defendant entered appearance and filed a Statement of Defence dated 12th June 2025 denying the occurrence of the accident and all the particulars of negligence attributed to her. She also put the Plaintiff to strict proof of the averments in her Plaint. 5.The Defendant also took out a Third-Party Notice dated 15th October 2025. The Third Party failed to enter appearance within the prescribed period despite having been duly served with the said notice and pleadings. Consequently, this court directed that the Third Party’s liability be determined during the hearing of this suit. 6.It is against this background that this suit was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. 7.The evidence adduced before this court during the hearing is summarized below. Evidence Plaintiff’s Case 8.PW1 No. 76XXX PC Isaac Kimani Njuguna of Bungoma Police Station produced the police abstract dated 04th March 2025 showing that the occurrence of the accident herein was reported at Bungoma Police Station vide OB. No. 53/03/03/2025. He could not tell the circumstances under which the accident occurred. 9.PW2 Anjeline Nabwire adopted her witness statement dated 10th June 2025 as her evidence in chief. Her testimony was that the accident occurred when the Defendant’s motor vehicle was being driven recklessly at a high speed and overtaking improperly, only to hit an oncoming motorcycle. She added that she did not contribute to the occurrence of the accident since she was only a passenger. 10.In cross-examination, she stated that the motorcycle was not overtaking at the time of the accident, and that the motorcycle was in its lane when the motor vehicle hit it. Defendant’s Case 11.DW1 Solomon Karanja Wainaina was the Defendant’s motor vehicle’s driver at the time of the accident. He adopted his witness statement on record as his evidence in chief. His testimony was that the accident occurred when the oncoming motorcycle carelessly overtook two motor vehicles ahead of it, only to veer into the Defendant’s motor vehicle’s lane, thereby leading to a head-on collision between the said motor vehicle and the said motorcycle. He produced the motor vehicle’s inspection report and his driving licence as exhibits. 12.He admitted in cross-examination that he saw the motorcycle rider 20 metres away before the occurrence of the accident. He added that he applied the brakes and swerved off-road, but the accident still occurred. He also added that he could not apply the brakes immediately given the distance between the motor vehicle and the motorcycle, as well as the motor vehicle’s speed. 13.DW2 No. 81XXX PC (W) Jackline Ochieng of Bungoma Police Station testified that the accident occurred when the motorcycle was overtaking a motor vehicle in front of it, only to collide head-on with the oncoming Defendant’s motor vehicle. She added that she did not investigate the circumstances under which the accident occurred, and that she had gathered the circumstances under which the accident occurred from the Occurrence Book’s extract which she produced as an exhibit. 14.She conceded in cross-examination that she neither visited the scene, and that she had not produced the accident’s sketch maps. She also admitted that the OB extract she had produced had neither absolved the Defendant’s driver from blame nor blamed the motorcycle rider for the accident. 15.She also admitted the OB extract she had produced did not contain the accident’s point of impact. 16.In re-examination, she took the position that the rider was to blame for the occurrence of the accident since he was overtaking. Third Party’s Case 17.The Third Party neither entered appearance nor filed any pleadings. It follows that the Third Party admitted contributing to the occurrence of the accident. However, that does not lessen the Defendant’s burden of proving on a balance of probabilities the extent of the Third Party’s contribution to the occurrence of the accident. Analysis and Determination 18.This court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 19.The uncontroverted evidence on record shows that the accident herein occurred, causing the Plaintiff to sustain bodily injuries. The evidence on record also proved on a balance of probabilities that the Defendant owned the motor vehicle the Plaintiff had boarded at the time of the accident, while DW1 was the said motor vehicle’s driver at the time of the accident. 20.The Third Party’s ownership of the motorcycle herein is also not disputed. Further, it is common ground that DW1 was the Defendant’s agent at the time of the accident. In the circumstances, in the event this court finds that DW1’s negligent acts or omissions led to the occurrence of the accident, the Defendant will be vicariously liable for the 1st Defendant’s negligent acts and omissions. 21.Given the above, the issues that commend to this court for determination are liability and quantum. Liability 22.The Plaintiff blamed the Defendant’s motor vehicle’s driver for causing the accident by driving the said motor vehicle at a high speed and knocking the oncoming motorcycle in its lane. The Defendant, on her part, did not lead any evidence to prove the particulars of negligence she attributed to the Plaintiff in her Statement of Defence. 23.The Defendant largely blamed the motorcycle rider for the accident by stating that the accident occurred when the oncoming motorcycle overtook motor vehicles ahead of it carelessly thereby hitting the oncoming motor vehicle. 24.DW2 also blamed the motorcycle rider for the occurrence of the accident on the basis that the head on collision occurred when the motorcycle rider was overtaking. However, she conceded that she neither investigated the accident nor visited the scene of the accident, and that she could not tell the accident’s point of impact. 25.The evidence on record on the circumstances under which the accident occurred does not point to any negligence on the part of the Plaintiff, who was a passenger in the Defendant’s motor vehicle. The foregoing shows that the Plaintiff cannot be blamed for the occurrence of the accident, as held in Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR, where the court stated thus;“The only time a passenger maybe held to be liable in my view, is when for instance it is shown that he did not fasten his seat belt or was trying to jump out of the vehicle when it has not stopped. That way, some contributory negligence could be attached to him.” 26.Having arrived at the finding that the Plaintiff was not to blame for the occurrence of the accident, it goes without saying that the two drivers owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. That duty of care was breached when the accident occurred, causing multiple soft tissue injuries to the Plaintiff. 27.This court now proceeds to determine who between the Defendant’s driver and the Third Party’s driver is to blame for the accident. 28.DW2, whom the Defendant called to corroborate their case that the motorcycle rider caused the accident, blamed the motorcycle rider for causing the accident by relying on the contents of the OB extract she produced as an exhibit. 29.However, it should be remembered that DW2 conceded that she neither visited the scene of the accident nor investigated the accident. She also admitted that she could not tell the point of impact and that she had not produced the accident’s sketch map. Further, DW2 did not lay any basis for why she was testifying on behalf of the accident’s investigating officer. 30.It would appear that the Defendant’s counsel was simply perpetuating the undesirable conduct of advocates in this jurisdiction of grabbing any police officer along the court’s corridor to testify on the circumstances of an accident they know nothing about other than what is contained in police records. 31.The evidence above led by DW2 was described as follows in Said & another v Kerubo (Legal administrator of the Estate of the Late Isaac Mogere - Deceased) (Civil Appeal E004 of 2024) [2026] KEHC 2638 (KLR):“24.The Appellants called DW1, a police officer stationed at Gilgil Police Station. She testified that the Occurrence Book reflected that an unregistered vehicle had collided with the rear of a trailer parked off the road on the left-hand side, as reported by one Kilonzo…On cross-examination, DW1 admitted that she was not the investigating officer, did not attend the scene, did not know the person who reported the incident, did not possess any sketch plans, and could not confirm the precise point of impact of the vehicles. Notably, she did not tender any documentary evidence before the court.25.It is evident that PW1’s testimony was based on information provided by the doctor and the police, whereas DW1 relied on the Occurrence Book and hearsay regarding the charges against the driver of the unregistered vehicle. The trial court rightly observed that their evidence amounted to hearsay concerning the circumstances of the accident.26.As a general rule, hearsay evidence is inadmissible unless it falls within the exceptions provided under Section 33 of the Evidence Act. The circumstances of the present case do not fall within any of the recognized exceptions; consequently, their accounts could not establish liability.” 32.In any event, the said OB extract filed by DW2 was illegible, not certified, and without details of whoever made the entry in the said OB extract. Such an OB extract is inadmissible. To this end, this court finds support in Bosire v Njihia (Civil Appeal E222 of 2025) [2026] KEHC 2744 (KLR) (Civ) where the court stated:“17.The law on O.B. extracts was settled in Munyamai & Another vs. Representatives of Joseph Okoth Aloo (Deceased) [2024] KEHC 2638, where the Court held that Occurrence Book entries are inadmissible hearsay evidence to prove the truth of the contents. The court added that OB is only evidence that the accident involving the vehicles, and the persons named, took place.18.In this case, a perusal of the record reveals that the O.B. extract that the Appellant relied upon bore no police stamp, no identified author, and appeared to contain self-serving statements. It was therefore inadmissible. I find that the trial court correctly disregarded it and applied the burden of proof as required by law.” 33.Guided by the authority above, it follows that DW2’s testimony on the circumstances under which the accident occurred, as well as the uncertified OB extract on record, was inadmissible hearsay evidence which this court will not rely on in determining liability. 34.The foregoing shows that the evidence on record on the circumstances under which the accident occurred is largely the Plaintiff’s word against DW1’s word. They were all in agreement that the accident occurred when the motor vehicle and the motorcycle were involved in a head-on collision. Their only point of departure was on who was to blame for the accident. 35.Whereas the Plaintiff blamed DW1 for driving the Defendant’s motor vehicle at a high speed and knocking the oncoming motorcycle in its lane, DW1 maintained that the motorcycle overtook carelessly, then veered into the motor vehicle’s lane, thus causing the head-on collision. 36.DW1 admitted that he saw the motorcycle’s rider 20 metres away before the occurrence of the accident. This means that if at all the motorcycle had overtaken carelessly, the motor vehicle’s driver could have applied the brakes or swerved on time to prevent the occurrence of the accident if at all he was driving the motor vehicle at a reasonable speed. DW1 actually admitted that he could not apply emergency brakes given the speed at which he was driving the motor vehicle. Therefore, DW1 must shoulder some blame for the occurrence of the accident. 37.This court has already made a finding that the only evidence on record on the circumstances under which the accident occurred is the contradicting evidence adduced by PW1 and DW1. PW1 and DW1 witnessed the accident. Their evidence on how the accident occurred is direct evidence. 38.In the face of contradicting evidence above by the accident’s eye witnesses, this court is of the considered view that this was a proper case for the calling of the accidents’ investigating officer and the production of the accident’s sketch map for this court to fully appreciate the point of impact before apportioning liability between the motorcycle rider and the motor vehicle rider. 39.The absence of the accident’s sketch map and the accident’s investigating officer’s testimony makes it difficult for this court to determine whether the point of impact was in the motorcycle’s lane or the motor vehicle’s lane. Simply put, the evidence on record is barely adequate for this court to apportion liability between the motor vehicle driver and the motorcycle rider. 40.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. 41.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. 42.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…….. “ 43.Given the reasons above, and guided by the authorities above, this court finds and holds the Defendant and the Third Party equally to blame for the occurrence of the accident. Quantum a. General Damages for Pain and Suffering 44.The Plaintiff pleaded in paragraph 7 of her Plaint that the accident caused her to sustain a head injury with loss of consciousness, bruises and lacerations on both knees, and a cut wound on the right leg. The medical evidence produced by the Plaintiff proved on a balance of probabilities that the Plaintiff sustained the said injuries as a result of the accident herein. 45.The law in this jurisdiction is that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in Stanley Maore vs Geoffrey Mwenda (2004) eKLR, as follows: -“...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.” 46.This court has given due regard to the written submissions on record on quantum. The Plaintiff’s counsel relied on authorities where the Plaintiffs sustained more severe injuries than the ones sustained by the Plaintiff herein. The Defendant’s counsel, on their part, relied on authorities where courts made inordinately low awards for multiple soft tissue injuries. In the circumstances, this court will disregard the authorities cited by the parties herein in support of the awards they urged this court to make under this head. 47.The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR), where the court made an award of Kshs. 150,000/= for multiple soft tissue injuries, including a deep cut on the forehead and a blunt injury to the right knee. 48.In Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR), the court made an award of Kshs. 150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 49.Lastly, in Quick Shuttle Sacco v Joel & another (Civil Appeal E131 of 2023) [2026] KEHC 1573 (KLR), the court upheld an award of Kshs. 250,000/= for moderate multiple soft tissue injuries. 50.The authorities above show that awards of between Kshs. 150,000/= - Kshs. 250,000/= are usually made for moderate multiple soft tissue injuries almost similar to the ones sustained by the Plaintiff in this case. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. Special Damages 51.The Plaintiff pleaded in paragraph 7 of her Plaint for Special Damages of Kshs. 10,750/=. 52.The receipt for the medical report for Kshs. 6,000/= , the receipt for the copy of records from NTSA for Kshs. 550/= , the receipt for medical expenses of Kshs. 2,170/= from Bungoma County Referral Hospital, and the receipt for medical expenses of Kshs. 550/= from Kabula dispensary proved Special Damages of Kshs. 9,270/=. 53.It is against this backdrop that this court makes an award of Kshs. 9,270/= under this head. Determination 54.The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: -a.Liability………………………………………100% in favour of the Plaintiff………………………………………………...50%:50% between the Defendant and the Third Partyb.General Damages…………………...………Kshs. 200,000/=c.Special Damages……………………...…….Kshs. 9,270/=Total Award……………………..Kshs. 206,550/= 55.The General Damages shall accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages shall accrue interest at court rate from the date of filing this suit till payment in full. 56.The Plaintiff shall have the costs of this suit. 57.The Defendant shall bear their own costs of the Third-Party proceedings. 58.The Third Party will indemnify the Defendant 50% of the decretal sum and costs herein payable by the Defendant to the Plaintiff. 59.Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 09TH DAY OF JULY 2026T.O. OMONOSENIOR RESIDENT MAGISTRATEIn the presence of:Mr. Okara for the PlaintiffMr. Choni for the DefendantC/A: Mr. Rioba