https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/668

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E026 OF 2016** **DANIEL WEKESA……...…………………………………………...PLAINTIFF** **VERSUS** **MORRIS BARASA WASWA….........………………………...............1ST DEFENDANT** **MWANGI MARY……………………………………………………...2ND DEFENDANT** **BEN WAFULA WANELOBA………………………………………..3RD DEFENDANT** **CAR & GENERAL (TRADING) LIMITED………………………..4TH DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendants through a Plaint dated 18th January 2016 praying for judgment against the Defendants jointly and severally for:- 2. *Special damages of Kshs. 9,520/=* 3. *General damages* 4. *Costs and interest* 5. *Any other relief this Honourable Court may deem fit and just to grant* 6. The Plaintiff pleaded that on 24th December 2014 while a lawful pillion passenger on motor cycle registration number KMDH 611 Y along Bukembe – Webuye road, the 1st Defendant who reportedly was the 2nd Defendant’s authorized agent and driver allegedly carelessly and negligently drove motor vehicle registration number KAS 489 H causing it to knock the motorcycle the Plaintiff had boarded. 7. Further, the Plaintiff pleaded that the accident was solely caused by the Defendants’ negligence as enumerated in paragraph 7 of the Plaint. 8. It is the Plaintiff’s case that the accident caused her to sustain bodily injuries particularized in paragraph 8 of the Plaint thereby necessitating the filing of this suit for general damages and special damages. 9. The 3rd Defendant entered appearance and filed a Statement of Defence dated 20th September 2016 blaming the Plaintiff as well as the 1st and 2nd Defendants for wholly causing and/or substantially contributing to the occurrence of the accident through acts of negligence set out in paragraph 5 of the said Statement of Defence. 10. The 1st Defendant on the other hand enter appearance and filed a Statement of Defence dated 28th September 2016 denying the particulars of negligence attributed to him by the Plaintiff. He took the position that the accident was wholly caused or substantially caused by acts of negligence by the Plaintiff and the motorcycle rider as set out in paragraphs 5 and 6 of his Statement of Defence. 11. The 1st and 3rd Defendants prayed that the Plaintiff’s case be dismissed with costs. 12. On 19th June 2025, the Plaintiff’s counsel withdrew the Plaintiff’s suit against 2nd and 4th Respondents. 13. The 1st and 3rd Defendants did not participate in the hearing of this matter despite having been served with the relevant hearing and mention notices. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Daniel Wekesa Siundu** adopted his witness statement dated 18th January 2016 as his evidence in chief. His testimony was that on the date of the accident, he was a pillion passenger on motorcycle registration number KMDH 611 Y along Bukembe – Webuye road when the said motorcycle was knocked by motorvehicle registration number KAS 489 H. 2. He also produced all the documents listed in his list of documents dated 18th June 2016 as exhibits. **1st and 3rd Defendants’ Case** 1. The 1st and 3rd Defendants did not place any evidence before this court to prove the allegations set out in their pleadings. 2. When faced with such a situation, Madan, J (as he then was) in **CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1) [1978] KLR 103; [1976-80] 1 KLR 835**, expressed himself as hereunder: *“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.”* 1. In **Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002**, Lesiit, J stated as follows on this issue: *“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”* 1. Guided by the authorities above, it follows that the averments in the 1st and 3rd Statements of Defence on record remain mere allegations which this court will not consider in determining this suit. **ANALYSIS & DETERMINATION** 1. This court has duly considered the Plaintiff’s pleadings, exhibits, and all the evidence on record. 2. The police abstract dated 26th February 2015 (Pexh.1) shows that on 24th December 2014, the Plaintiff while a pillion passenger, was injured when motorcycle registration number KMDH 611 Y (‘the motorcycle’) which he had boarded was involved in an accident with motor vehicle registration number KAS 489 H (‘the motorvehicle’). 3. The said abstract also shows that the said the motorvehicle was being driven by the 1st Defendant while the motorcycle was being driven by the 3rd Defendant. 4. The copies of record (Pexh. 6), on the other hand, show that the motorcycle was owned by the 4th Defendant while the motorvehicle was owned by the 2nd Defendant at the time of the accident. 5. There is no evidence on record to impeach the contents of the police abstract and the copies of record filed and produced by the Plaintiff. This court finds no reason to disbelieve the contents of those documents. 6. Given the above, this court finds and holds that the only issues for determination are liability and quantum. 7. the accident herein occurred on the date pleaded by the Plaintiff in the Plaint, and that the accident involved **Liability** 1. The Plaintiff was a passenger on the motorcycle that was hit by the motor vehicle. A passenger’s liability in an accident is well settled in this jurisdiction. In **Oduor v Achieng (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR) (20 December 2023)** (Judgment), the court rendered itself on this issue as follows:- *“…A passenger cannot be held liable when a vehicle he/she is travelling in is involved in accident unless it is demonstrated on how negligent she was say, jumping out of the motor vehicle or hanging on the said motor vehicle while it is in motion. See Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR. Further to this, the respondent testified, and this was not controverted by the appellant even in cross-examination, that she had fastened her seatbelt and that the suit motor vehicle was being driven in a speeding manner so as to cause it to zig zag on the road.* *Accordingly, the respondent passenger cannot be held liable for occasioning or contributing to the occurrence of the accident. Having considered the evidence on record, the fact that the Plaintiff was not in control of the motor vehicle in question, and guided by the authorities above, this court finds no reason to disbelieve the Plaintiff’s version of events on how the accident herein occurred…”(Emphasis added)* 1. There is no evidence on record to show that the Plaintiff contributed in any way whatsoever to the occurrence of the accident herein. In the circumstances and having duly considered the authorities above, this court finds no reason to blame the Plaintiff for the occurrence of the accident herein. 2. Be that as it may, this court notes that the Plaintiff simply stated that the motor vehicle hit the motorcycle he had boarded without delving into the nitty-gritty details of the circumstances under which the accident occurred. This court cannot based on the evidence on record, tell the point of impact of the accident or who between the two drivers was to blame for the accident. 3. However, it is given that the 1st and 3rd Defendants owed the Plaintiff a duty of care to ensure that the Plaintiff reached his destination safe and sound. That did not happen, leading to the inevitable conclusion that the 1st and the 3rd Defendants breached the duty of care they owed the Plaintiff. 4. Accidents do not just occur. They are caused. The accident herein was caused by the drivers herein. The conundrum in this case is the extent of blame between the drivers herein. When faced with such a situation, Madan, J (as he then was) in **Welch v Standard Bank Limited [1970] EA 115** expressed himself as hereunder: *“ When there is no material to generate actual persuasion in the court’s mind, still the court cannot unconcernedly refuse to perform its allotted task of reaching a determination. The collision is a fact. Any one of the alternatives mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen but they are caused. It is an explanation which offers a solution of impartial practicability. Everyday, proof of collision is held to be sufficient to call on the two defendants to answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court had nothing by which to draw any distinction between them.* *So, also, if they are both dead and cannot give evidence enabling the Court to draw a distinction between them, they must both be held to blame, and equally to blame…Justice must not be denied because the proceedings before the court fail to conform to conventional rules provided, in its judgement, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardizing the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion…There being nothing to enable the court to draw a distinction between the two drivers, it is consonant with probabilities, and it is not repugnant aesthetically to* *a logical judicial mind, to hold that both were to blame, and equally to blame. The court* *does hold so in this case.”* 1. Given the above, this court finds and holds the 1st and 3rd Defendants equally to blame for the occurrence of the accident herein. **Quantum** 1. **General damages for Pain and Suffering** 2. A reading of the Plaintiff’s P3 form (Pexh.2) dated 22nd January 2015, discharge summary dated 24th December 2024 (Pexh. 3 ) from Webuye District Hospital, and the Medical Report dated 15th June 2015 (Pexh. 5) by Dr. Mulianga Ekesa shows that thetreatment notes (Pexh. 4 & 5), and medical report (Pexh.8) shows that the Plaintiff proved on a balance of probabilities that he sustained the injuries pleaded in his Plaint. 3. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR)** who sustained an injury to the right fore head with deep cut wound with active bleeding, swollen right orbital margins upper and lower, reddish right eye, swollen left orbital margin and tender, swollen upper lips with cut wounds and tender, tender chest wall, bruised right hand and tender, swollen right knee joint with multiple bruises and tender. The Plaintiff further complained that at the time of going to court, he was suffering pain on the affected body parts as well as psychological trauma with extensive post injuries scar. The court made an award of Kshs. 180,000/=. 4. Guided by the authority above, and taking into consideration the lapse of time since the decision above was made, this court is of the considered view that an award of Kshs. 200,000/= will be reasonable compensation under this head. 5. **Special Damages** 6. The Plaintiff pleaded in paragraph 9 of his Plaint Special Damages of Kshs. 9,520/=. 7. It is well settled in this jurisdiction that Special Damages must be pleaded and strictly proved before they are awarded, as restated in **Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716**, where the Court of Appeal held as follows:- *“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”* 1. The receipts for specials placed before this court by the Plaintiff proved on a balance of probabilities the Special Damages of Kshs. 9,520/= pleaded by the Plaintiff. 2. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 9,520/=. **DETERMINATION** 1. For the reasons above, judgment is hereby entered jointly and severally against the 1st and 3rd Defendants in the following terms:- 2. ***Liability – 50%: 50% between the 1st Defendant and the 3rd Defendant in favour of the Plaintiff*** 3. ***General damages - Kshs. 200,000/=*** 4. ***Special Damages - Kshs. 9,520/=*** ***Total Award - Kshs. 209,520/=*** 1. The General Damages 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. 3. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma this 03rd day of February 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Nekesa for the Plaintiff C/A: Mr. Rioba