https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/711

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E284 OF 2025** **DAN BALONGO………………………………………………………………......PLAINTIFF** **VERSUS** **ROSE NAFULA WEKESA....……………………………………………….....DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendant through a Plaint dated 14th June 2025, praying for judgment against the Defendant for:- 2. *General damages for pain and suffering* 3. *Special damages of Kshs. 18,750/=* 4. *Costs of this suit* 5. *Interest on (a), (b), and (c) above* 6. *Any other relief as this Honourable Court may deem fit to grant* 7. It was averred by the Plaintiff that the cause of action herein arose on 06th April 2025 when the Plaintiff was a pedestrian at Keringet roundabout along Bungoma – Mumias road when he was knocked by the Defendant’s motor vehicle registration number KCG 949 N (“the Defendant’s motor vehicle”) which was reportedly being carelessly and negligently driven. 8. The Plaintiff added that the accident was caused by negligent acts and omissions on the part of the Defendant and the Defendant’s motor vehicle driver particularized in paragraph 5 of the Plaint. 9. The accident caused the Plaintiff severe injuries, loss and damage, thereby necessitating the filing of this suit. 10. The Defendant entered appearance and filed a Statement of Defence denying all the averments in the Plaintiff’s Plaint save for the parties’ descriptive averments and this court’s jurisdiction to hear and determine this suit. 11. The Defendant pleaded in the alternative that if the accident herein occurred, then the same was caused by or substantially contributed to by the Plaintiff’s negligent acts and omissions particularized in the Statement of Defence herein. 12. It is against this backdrop that the Defendants urged this court to dismiss this suit with costs. 13. The divergent positions taken by the parties herein on the circumstances under which the accident herein occurred prompted this court to set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. 14. The summary of the evidence led before this court by the parties herein is set out below. **Plaintiff’s Case** 1. **PW1 Daniel Balongo** adopted his witness statement dated 14th June 2025 as his evidence in chief. His testimony was that the accident occurred while he was crossing the road at Keringet roundabout, only for the Defendant’s motor vehicle, which was being reportedly driven on the wrong side of the road, to suddenly hit him. 2. He stated in cross-examination that he crossed the road at a zebra crossing near the roundabout. 3. **PW2 No. 7XXXX PC Isaac Kimani Njuguna** from Bungoma Traffic Base produced the accident’s police abstract dated 08th April 2025 showing that the accident herein occurred and was reported at Bungoma Police Station vide OB. No. 34/06/04/2025. 4. Whereas he neither investigated the circumstances under which the accident occurred nor visited the scene, he blamed the Defendant’s motor vehicle driver for causing the accident by making a U-turn and knocking down the Plaintiff. **Defendant’s Case** 1. **DW1 Euclid Amatalo Sumba** adopted his witness statement dated 10th March 2026 as his evidence in chief. His testimony was that the accident occurred when the Plaintiff suddenly crossed the road. 2. In cross-examination, he died making a U-turn at the time of the accident. He added that he only drove on the wrong side of the road after the occurrence of the accident. He admitted that he was the Defendant’s authorized driver at the time of the accident. 3. **DW2 Isaac Munialo** stated that he was aboard the Defendant’s motor vehicle at the time of the accident. He corroborated DW1’s version of events on the circumstances under which the accident occurred. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, evidence, written submissions, and the authorities placed before this court by the parties herein. 2. The parties herein are in agreement that the accident herein occurred. The Defendant’s ownership of the motor vehicle is also not disputed. It is also common ground that DW1 was the Defendant’s authorized driver at the time of the accident. Therefore, in the event this court finds DW1 negligent for the occurrence of the accident, the Defendant will be vicariously liable for DW1’s negligent acts or omissions. 3. The foregoing inclines this court to find that the issues which commend to this court for determination are liability and quantum. **Liability** 1. It is imperative from the onset to decry the practice in Bungoma where advocates pick any police officer to testify on the circumstances under which an accident occurred. Like in the instant case, PW2 purported to speak about the circumstances under which the accident herein occurred, yet he neither investigated the circumstances under which the accident occurred nor visited the scene. 2. The evidence led by PW2 on the circumstances under which the accident occurred was inadmissible hearsay evidence. It thus follows that PW2’s role before this court was limited to producing the police abstract on record. Therefore, this court will not rely on PW2’s testimony on the circumstances under which the accident occurred to determine liability in this case. 3. This court notes that PW1, DW1 and DW2, who witnessed the accident, took a divergent position on the circumstances under which the accident occurred. Whereas PW1 stated that the accident occurred while he was crossing the road at a zebra crossing, only to be hit by the Defendant’s motor vehicle, which was being driven on the wrong side of the road, DW1 and DW2 maintained that the accident occurred when the Plaintiff suddenly crossed the road at an undesignated area at a roundabout. 4. This court takes the view that in the face of the contradictory evidence by DW1 on the circumstances under which the accident occurred, it was prudent for the Plaintiff to place before this court the accident’s sketch plan, investigations file, or call the accident’s investigating officer as a witness for this court to fully appreciate the accident’s point of impact. The accident’s sketch plan would have shown, if at all, whether the Plaintiff was crossing the road at a zebra crossing when the accident occurred. 5. Be that as it may, the evidence on record proves on a balance of probabilities that the accident occurred when the Plaintiff was crossing the road at Keringet roundabout. 6. A roundabout in a town like Bungoma is generally a busy place which calls for the exercise of due care and attention by all road users. That being the case, it was incumbent upon the Plaintiff and DW1 to be very cautious near the roundabout. 7. The Plaintiff in this case breached the Highway Code by crossing the road near a roundabout without confirming whether the road was safe for crossing, thereby exposing himself to danger. Breach of the Highway Code by a road user attracts sanctions when determining liability in a traffic case. This position is fortified by section 68 (3) of the Traffic Act, which provides that: *“A failure on the part of any person to observe any provisions of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in the proceedings be relied upon by any party to the proceedings as tending to establish to negative any liability which is in question in those proceedings.”* 1. The above is in line with the legal maxim that one cannot profit from their own wrong *(ex turpi causa non oritur actio).* Therefore, it follows that the Plaintiff, having breached the Highway Code, must be held to have contributed to the occurrence of the accident. 2. On the face of it, one may easily rush to wholly blame the Plaintiff for the occurrence of the accident. 3. When confronted with a situation almost similar to the one obtaining in this case, Nangea, J in **Wainaina v Muniu (Civil Appeal E293 of 2023) [2026] KEHC 839 (KLR)** rendered himself thus: *“21.I therefore accept the Appellant’s evidence that the Respondent contributed to occurrence of the accident. The Appellant was, however, largely to blame as he had a chance to see him and was in charge of the vehicle. The Respondent had a right to be on the road and the Appellant was duty bound to anticipate his presence and exercise caution while driving, even if the Respondent might have been crossing the road at an undesignated spot.”* 1. The above legal position was also restated in **Masembe v 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 car 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.”* 1. The authorities above are instructive that a prudent driver does not knock anything along their way just because that thing is wrongly on the road. The mere fact that the Plaintiff was crossing the road without due care or attention or at an undesignated place did not give the motor vehicle driver the licence to knock down the Plaintiff. The motor vehicle driver owed the Plaintiff a duty of care to ensure the Plaintiff’s safety regardless of whether the Plaintiff was crossing the road at a designated point or not. 2. Given that the accident occurred at around 1400hrs, the question of visibility does not arise. The motor vehicle driver would have seen the Plaintiff crossing the road on time and prevented the occurrence of the accident if he had been driving the motor vehicle at a reasonable speed capable of making him brake on time in the event of anything emerging suddenly on his path. 3. This court takes the considered view that the motor vehicle driver owed the Plaintiff a higher duty of care, given that he was driving a motor vehicle, which is a dangerous machine if not handled well. To this end, this court places reliance on **Monda v Suji & another [Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased] [2023] KEHC 2778 [KLR]**, where Aburili J posited as follows: *“35.Further, in the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR, this court expressed itself thus;“A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.”* 1. Given the reasons above, and taking the totality of the circumstances of this case into consideration, this court apportions liability in the ratio of 80%:20% in favour of the Plaintiff as against the Defendant. **Quantum** 1. **General damages for pain and suffering** 2. The Plaintiff pleaded in paragraph 7 of his Plaint that the accident caused him to sustain a head injury with loss of consciousness, fracture of the right lateral malleolus, dislocation of the right ankle joint, and a blunt injury to the chest. 3. The Plaintiff’s oral testimony, the medical report by Dr. Joseph Sokobe dated 22nd May 2025, the P3 form dated 08th April 2025, and the treatment notes from Bungoma County Referral Hospital dated 06th April 2025 corroborated the averments in the Plaintiff’s Plaint on the injuries he sustained as a result of the accident. 4. The Defendant on his part produced Dr. Osiro’s medical report dated 19th March 2026 which shows that the accident caused the Plaintiff to sustain a fracture of the left lateral malleolus. 5. It is evident from the above that Dr. Osiro’s medical report on the injuries sustained by the Plaintiff as a result of the accident is at variance with the Plaintiff’s own testimony and the Plaintiff’s initial treatment notes on record. 6. A court is not bound to accept an expert report hook, line, and sinker. In appropriate circumstances, the court can depart from the contents of an expert report. 7. This court takes the view that Dr. Osiro’s medical report dated 19th March 2026 being at variance with the Plaintiff’s initial treatment notes and the Plaintiff’s own testimony on the injuries the Plaintiff sustained as a result of the accident, coupled with the fact that the Defendant did not call Dr. Osiro to shed light on his radically different opinion on the injuries sustained by the Plaintiff, this court declines to consider the said report in assessing damages under this head. 8. The foregoing inclines this court to find and hold that the Plaintiff proved on a balance of probabilities that the accident herein caused him to sustain a head injury with loss of consciousness, fracture of the right lateral malleolus, dislocation of the right ankle joint and a blunt injury to the chest. 9. The law in this jurisdiction 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.”* 1. Whereas the Plaintiff filed their written submissions, the Defendants did not. This court has given due regard to the written submissions on record on quantum. 2. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Sunny Hauliers Limited v Wambua (Civil Appeal 161 of 2020) [2024] KEHC 1705 (KLR)** where Majanja, J (as he then was) awarded Kshs. 600,000/= general damages for a Plaintiff who sustained a fracture of the left lateral malleolus, bruises and swelling on both legs and right foot, and blunt injury(tender) of the anterior chest wall. The said injuries had caused the Plaintiff to suffer 5% permanent incapacity. 3. Guided by the authority above, and considering that the Plaintiff herein did not suffer any degree of permanent incapacity as a result of the accident herein, this court finds an award of Kshs. 400,000/= to be reasonable under this head. **(b)Special Damages** 1. The Plaintiff pleaded in paragraph 7 of his Plaint Special Damages of Kshs. 18,750/=. 2. The receipt for the medical report dated 22nd May 2025 for Kshs. 6,000/= and the NTSA receipt for Kshs. 550/= proved Special Damages of Kshs. 6,550/=. 3. It is against this backdrop that this court awards Kshs. 6,550/= under this head. **DETERMINATION** 1. Given the foregoing, judgment is entered against the Defendant in the following terms:- * 1. Liability 80%:20% in favour of the Plaintiff 2. *General damages – Kshs. 400,000/=* 3. *Special Damages - Kshs. 6,550/=* *Grand Award - Kshs. 406,550/=* *Less 20%* ***Net Award - Kshs. 325,240/=*** 1. The General Damages will accrue interest at court rate from the date of this judgment till payment in full. 2. The Special Damages awarded will accrue interest at court rate from the date of filing this suit till payment in full. 3. The Plaintiff will have the costs of this suit, subject to the ratio of liability herein. 4. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma this 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Chebet h/b for Mr. Okara for the Plaintiff Ms. Kabiru h/b for Mr. Kiprotich for the Defendant C/A: Mr. Rioba