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Oketch v Akida & another (Civil Case E1185 of 2024) [2026] KEMC 815 (KLR) (27 August 2026) (Judgment) Neutral citation: [2026] KEMC 815 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E1185 of 2024 EM Mwamuye, SRM August 27, 2026 Between Ebrahim Oketch Plaintiff and Mwanasha Jaruman Akida 1st Defendant Mohamed Kassim Kitendo 2nd Defendant Judgment Introduction 1.The Plaintiff instituted this suit against the Defendants seeking general damages for pain, suffering and loss of amenities, special damages of KShs. 12,065/=, costs and interest arising from a road traffic accident said to have occurred on 18th May 2024 along Tangana Road near Corner Garage, Mombasa. 2.The Plaintiff pleaded that he was lawfully assisting in pushing a motor vehicle which had stalled when motor vehicle registration number KCY 450M, owned by the 1st Defendant and driven by the 2nd Defendant, approached from behind and knocked him down. He attributed the accident to the negligence of the Defendants and particularised the same, inter alia, as driving at an excessive speed, failing to keep a proper lookout and failing to brake, slow down, swerve or otherwise control the vehicle so as to avoid the accident. 3.The Plaintiff pleaded that he sustained a fracture of the right tibia and a blunt injury to the right foot. He further pleaded special damages comprising KShs. 2,000/= for the medical report and KShs. 10,065/= as medical expenses, giving a total of KShs. 12,065/=. 4.The Defendants filed a defence denying liability. The 1st Defendant, however, admitted ownership of KCY 450M. Although the defence initially denied that the 2nd Defendant was the driver, the evidence ultimately tendered and the Defendants' own submissions leave no real controversy that the 2nd Defendant was driving KCY 450M at the material time. Indeed, the Defendants' submissions expressly refer to him as the person who was driving the vehicle. 5.In the alternative, the Defendants pleaded contributory negligence against the Plaintiff. Their substantive case at trial was, however, that although the 2nd Defendant was at the scene and overtook the stalled vehicle, his vehicle never struck the Plaintiff. Issues for determination 6.Having considered the pleadings, oral and documentary evidence, the medical reports and the rival written submissions, I consider the following issues to arise for determination:i.Whether the Plaintiff proved that he was involved in the accident with motor vehicle KCY 450M;ii.Whether the accident was caused by the negligence of the 2nd Defendant and, if so, whether there was any contributory negligence on the part of the Plaintiff;iii.What injuries were proved;iv.What constitutes a fair award of general damages;v.Whether the special damages were proved; andvi.Who should bear the costs of the suit. Liability Whether an accident involving KCY 450M was proved 7.The Plaintiff's evidence was that on 18th May 2024 he and another person were assisting in pushing a stalled motor vehicle along Tangana Road. According to him, the stalled vehicle had its hazard lights on. While they were pushing it, KCY 450M approached from behind and struck him. 8.The Plaintiff called Mohamed Hamisi Meri, who gave an eyewitness account. He stated that he was together with the Plaintiff pushing the stalled vehicle when KCY 450M approached and knocked the Plaintiff down. The Plaintiff was thereafter taken for treatment. 9.There is consequently direct eyewitness evidence of the occurrence. I therefore do not accept the Defendants' submission that there was "no direct evidence" that KCY 450M came into contact with the Plaintiff. Whether the eyewitness is ultimately believed is a question of credibility and weight; his testimony does not cease to be direct evidence merely because the Defendants dispute it. 10.There is also a substantial measure of common ground between the parties concerning the surrounding circumstances. The 2nd Defendant admitted that he was driving KCY 450M on the material road. He admitted encountering the stalled vehicle. He further admitted overtaking that vehicle and thereafter being informed that he had allegedly knocked somebody. He stopped and found a crowd around a person who was complaining of an injury to his leg. 11.The divergence is therefore narrow but important: the Plaintiff says the 2nd Defendant struck him; the 2nd Defendant says he did not. Medical evidence and contemporaneity 12.The medical evidence provides important objective corroboration. The Plaintiff was treated on the date of the accident. The Enaya Medical Centre documentation recorded a history of a road traffic accident in which a vehicle had run over his right leg. X-rays were requested and the subsequent treatment records confirmed a tibial fracture. 13.The Defendants' own orthopaedic surgeon, Dr. Jamlick Muthuuri, subsequently recorded the history that the Plaintiff was helping push a broken-down vehicle when another fast-moving vehicle struck his right leg. Dr. Muthuuri confirmed a spiral fracture of the tibial shaft and contusions of the right foot. 14.I appreciate that the history contained in a medical report does not, by itself, prove which vehicle caused the injury. Nevertheless, the contemporaneous treatment evidence is relevant because it confirms that the Plaintiff suffered an injury of the nature he attributes to the accident on the material date. It considerably weakens the suggestion that the Plaintiff’s claim was fabricated much later. The police evidence 15.The parties placed different emphasis upon the evidence of the police officer. The Plaintiff submitted that the officer visited the scene and that the 2nd Defendant was found to blame. The Defendants point out that Corporal Joshua Muchesia was not the investigating officer, that the 2nd Defendant was never charged and that the police abstract indicated that the matter remained under investigation. They further submitted that no sketch plan, inspection report or photographs demonstrating impact were produced. 16.I therefore decline to determine civil liability merely on the basis of the police abstract or the asserted police opinion as to blame. A police abstract establishes material information concerning the report of an accident, but the question of negligence remains one for this Court upon consideration of the totality of the evidence. 17.Equally, the fact that the 2nd Defendant was not prosecuted does not absolve him from civil liability. The standard applicable herein is proof on a balance of probabilities, and the Court must independently determine whether that standard has been attained. Alleged inconsistencies and identification 18.The Defendants raised an interesting argument that the Plaintiff failed to prove that he was the person whom the 2nd Defendant encountered at the scene. They emphasize that the 2nd Defendant did not know him, no particulars were exchanged and the 2nd Defendant only learned his identity later. 19.I am unable to attach decisive weight to that argument. The Plaintiff himself testified to the accident. He called a witness who identified him as the person who was struck. Medical records demonstrate that he received treatment for the right lower-limb injury associated with the accident. The fact that the 2nd Defendant did not know his name at the scene does not displace that evidence. 20.The Defendants also challenged the eyewitness because he was the Plaintiff's friend and highlighted inconsistencies as to whether an eyewitness statement was recorded with the police. They further complained that the owner or driver of the stalled vehicle was not called. 21.Those are legitimate matters going to weight. However, there is no rule of evidence that testimony becomes inadmissible or inherently unreliable merely because a witness knows a litigant. What matters is whether, when evaluated against the rest of the evidence, it is credible. 22.The failure to call the owner of the stalled vehicle is likewise not fatal. The question is whether the evidence actually tendered satisfies the civil standard of proof. 2nd Defendant’s version 23.The 2nd Defendant maintained that he did not see anybody being struck, did not hear a collision and did not feel an impact. The Defendants argue that a collision sufficiently forceful to fracture an adult's tibia ought ordinarily to have produced some sensory indication to the driver. 24.That argument is not without force. It nevertheless remains an inference advanced in submissions. There was no accident reconstruction or other expert evidence establishing that the particular collision necessarily had to be felt or heard inside the vehicle. 25.More importantly, the 2nd Defendant's own evidence places him at the precise location, at the material time, performing the very manoeuvre that the Plaintiff says resulted in the accident. He accepts that immediately after overtaking the stalled vehicle, members of the public informed him that he had knocked someone. He stopped and encountered a person complaining of injury to the leg. 26.When that evidence is placed alongside the Plaintiff's account, the eyewitness evidence and the contemporaneous medical evidence of a right leg injury, I find the Plaintiff's version more probable. 27.The Defendants also relied upon alleged delayed reporting. Even accepting that the formal police report was not immediate, the Plaintiff's medical treatment was contemporaneous with the accident. Delay in police reporting must therefore be weighed against, rather than in isolation from, that evidence. Negligence and contributory negligence 28.Proof that a collision occurred does not automatically establish negligence. The Plaintiff must demonstrate on a balance of probabilities that the accident resulted from a breach of the duty of care owed by the 2nd Defendant. 29.The evidence establishes that the 2nd Defendant approached a stalled vehicle which was being pushed by persons on or adjacent to the roadway. By his own account, he saw the obstruction and undertook an overtaking manoeuvre. 30.Such circumstances called for heightened vigilance. The presence of a stalled vehicle being physically pushed necessarily meant that pedestrians were in close proximity to the vehicle. A reasonable driver was required to reduce speed sufficiently, keep a proper lookout and provide adequate lateral clearance before attempting to pass. 31.In Muindu v Kinyanjui & another [2024] KEHC 1794 (KLR), which the Plaintiff relied upon, the High Court reiterated that both motorists and pedestrians owe duties of care and that liability depends upon the circumstances demonstrated by the evidence. The High Court ultimately found the motorist 100% liable where the evidence established careless driving and failure to maintain a sufficient lookout. 32.In the present matter, there is no persuasive evidence that the Plaintiff suddenly entered the path of KCY 450M. The pleaded particulars of contributory negligence suggested that the Plaintiff stepped into or crossed the road without keeping a proper lookout. That is materially different from the evidence ultimately emerging at trial: both sides accept that there was a stalled vehicle being pushed and that the 2nd Defendant was overtaking it. 33.The 2nd Defendant knew or ought reasonably to have appreciated the presence of persons pushing that vehicle. He was therefore required to negotiate the obstruction in a manner that left them sufficient clearance. 34.The Defendants bore no legal burden to disprove negligence until the Plaintiff established his case. However, having considered the evidence as a whole, I find that the Plaintiff established on a balance of probabilities that the 2nd Defendant failed to keep sufficient clearance and/or sufficient lookout while overtaking the stalled vehicle and thereby struck him. 35.I have considered whether the Plaintiff should nevertheless shoulder some responsibility simply because he was pushing a stalled vehicle on the roadway. I do not think so. The Defendants did not establish that he suddenly moved into the path of KCY 450M, ignored an approaching vehicle or otherwise acted in a manner causally contributing to the collision. Presence on a roadway is not, without more, negligence. I therefore find the 2nd Defendant 100% liable for the accident. 36.The 1st Defendant admitted ownership of KCY 450M and the evidence established that the 2nd Defendant, her husband, was driving the vehicle. The Defendants' own case was that he was the person who regularly drove it. In the circumstances of the pleaded case and evidence before the Court, liability attaches to the Defendants jointly and severally. Liability is consequently entered at 100% against the Defendants jointly and severally. Quantum Injuries proved 37.The Plaintiff's injuries are substantially undisputed medically. Both doctors confirmed a fracture of the right tibia and injury to the right foot. Dr. Ajoni Adede examined the Plaintiff approximately 48 days after the accident. At that stage, the Plaintiff was still using crutches and had a plaster cast. Dr. Adede assessed 8% permanent partial disability. 38.Dr. Muthuuri, an orthopaedic surgeon, examined the Plaintiff much later, on 23rd April 2025. He reviewed the records from Enaya Medical Centre and Coast General Teaching and Referral Hospital. His report confirmed a spiral fracture of the right tibial shaft, which had been treated with a cast, together with contusions to the right foot. 39.By the latter examination, the Plaintiff complained only of occasional pain in the right lower limb. Dr. Muthuuri found no abnormality on examination, considered that the Plaintiff had recovered fully, and assessed permanent incapacity at 1%. 40.The apparent difference between 8% and 1% is therefore understandable in light of the timing of the examinations. Dr. Adede examined the Plaintiff while the fracture was still healing; Dr. Muthuuri assessed him approximately eleven months after the accident, when recovery had substantially taken place. 41.For purposes of assessing the long-term consequences of the injuries, I consider the later orthopaedic assessment more reflective of the Plaintiff's eventual condition. That does not diminish the pain, immobilisation and inconvenience suffered during the acute healing period. Comparative analysis of the authorities on quantum 42.The Plaintiff proposed KShs. 900,000/=, whereas the Defendants proposed KShs. 350,000/=. The Court's task is not to mathematically reproduce an earlier award. Comparable injuries should attract broadly comparable awards, adjusted for differences in severity, residual disability, passage of time and inflation.i.Kiama v MutisoThe Defendants relied principally upon Kiama v Mutiso (Civil Appeal 40 of 2023) [2024] KEHC 5135 (KLR). The claimant in Kiama sustained: fracture of the upper one-third of the left tibia; and blunt injury to the left leg and thigh. The first medical assessment had placed permanent partial disability at 8%, with anticipated stiffness and predisposition to arthritis. However, a later medical examination found that the claimant had fully recovered with no deformity or permanent incapacity. The trial court had awarded KShs. 700,000/=, but the High Court considered that excessive and reduced it to KShs. 400,000/=. The Court specifically distinguished authorities involving multiple fractures and meaningful permanent disability from a case involving an isolated tibial fracture that ultimately healed. There is a particularly close comparison between Kiama and the present case. Both involve an essentially isolated tibial fracture accompanied by soft-tissue injury. More importantly, both involved an initial 8% disability assessment followed by a later specialist examination demonstrating substantial or complete recovery. There is, however, a modest distinction. In Kiama, the later assessment found no permanent incapacity, whereas in the present case Dr. Muthuuri retained a 1% permanent incapacity and the Plaintiff continued to report occasional pain. Kiama is therefore highly persuasive as a starting point, but the Plaintiff's residual 1% incapacity and the passage of time since the 2024 award justify some upward adjustment.ii.Bernard Ngugi Wanderi v James Ng'ang'a & anotherThe Plaintiff relied upon Bernard Ngugi Wanderi v James Ng'ang'a & Joan Wairimu Kigo, MCCC E149 of 2024, a judgment delivered on 24th June 2026. The claimant there sustained: fracture of the right tibia; soft-tissue injuries to the right leg; and crush injury to the right big toe. The court awarded KShs. 700,000/= general damages. The tibial fracture makes Wanderi directly relevant. However, the injuries were not identical. The claimant in Wanderi had, in addition, a crush injury to the right big toe. The Plaintiff herein suffered a right-foot contusion/blunt injury but no comparable crush injury is established. I therefore agree with the Plaintiff that Wanderi is useful as a recent comparator, but I do not agree that it supports an award of KShs. 900,000/=. If anything, its award of KShs. 700,000/= for a tibial fracture coupled with the additional crush injury places an upper comparative marker for the less complicated injury presently before the Court.iii.Muindu v Kinyanjui & anotherThe Plaintiff also relied upon Muindu v Kinyanjui & another. That authority is much more useful on liability than on quantum. The injuries considered in the quantum discussion in Muindu were materially different and included significantly more extensive trauma than the relatively isolated tibial fracture presently before me. The authority itself demonstrates the need to avoid adopting awards made for materially more serious injuries merely because one injury happens to overlap. I therefore attach limited comparative weight to Muindu in fixing quantum in this particular case. Comparative position 43.Viewed comparatively, I find the Plaintiff's proposed KShs. 900,000/= excessive. His injuries and eventual recovery do not justify placing the award above Wanderi, where the claimant had an additional crush injury to the big toe. 44.Conversely, the Defendants' proposal of KShs. 350,000/= is too low. Kiama itself awarded KShs. 400,000/= in 2024 to a claimant who ultimately recovered without any permanent incapacity. The present Plaintiff retains a 1% incapacity according to the defence's own orthopaedic specialist, and the award must also account for the passage of time and inflation. 45.Balancing those considerations, the isolated nature of the fracture, the period of immobilisation, the associated foot injury, the eventual good recovery, occasional residual pain, the 1% permanent incapacity and the comparative awards, I consider KShs. 550,000/= to be fair and reasonable compensation for pain, suffering and loss of amenities. 46.I accordingly award the Plaintiff: General damages for pain, suffering and loss of amenities – KShs. 550,000/= Special damages 47.Special damages must be specifically pleaded and strictly proved. The Plaintiff pleaded:Medical report – KShs. 2,000/=Medical expenses – KShs. 10,065/=Total – KShs. 12,065/=. 48.I have considered the receipts and treatment documentation tendered in support of the claim. The claimed amounts were specifically pleaded and supported by the documentary evidence. I therefore find the special damages proved. I award KShs. 12,065/= as special damages. Final disposition 49.In the result, judgment is entered for the Plaintiff against the Defendants jointly and severally as follows:a.Liability 100% against the Defendantsb.General damages KShs. 550,000/=c.Special damages KShs. 12,065/=Total KShs. 562,065/=d.The Plaintiff shall have costs of the suit.e.Interest on general damages shall accrue at court rates from the date of this judgment until payment in full.f.Interest on special damages shall accrue at court rates from the date of filing suit until payment in full.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE