https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/127

Musengo v Kinatwa Coop Savings & another (Civil Case E072 of 2023) [2026] KEMC 127 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEMC 127 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E072 of 2023 YA Shikanda, SPM June 4, 2026 Between Francis Musengo Plaintiff and Kinatwa Coop Savings 1st Defendant Credit Society Limited 2nd Defendant Judgment The Claim 1.Francis Musengo (hereinafter referred to as the plaintiff) initially filed this suit on 12/5/2023 vide a plaint dated 4/5/2023. The plaint was later amended on 18/9/2023 and filed on 20/9/2023. The plaintiff sued Kinatwa Coop Savings & Credit Society Limited (hereinafter referred to as the defendant) on account of a road traffic accident that allegedly occurred on 11/12/2022 within Kibwezi Township. The plaintiff averred that he was a lawful passenger aboard motor vehicle registration number KCY 468D when motor vehicle registration number KCX 039A was carelessly and negligently driven that it diverted off the road at a non-designated area in a careless and negligent manner that it hit motor vehicle registration number KCY 468D, causing it to hit motor vehicle registration number KCR 664A which was parked off the road, hence occasioning the plaintiff serious injuries. 2.The defendant was sued as the owner of motor vehicle registration number KCX 039A at the material time. The plaintiff pleaded the following particulars of negligence against the defendant (ought to have been the driver):a.Driving without due care and attention;b.Driving at an excessive speed in the circumstances;c.Failing to keep a proper look out and sufficient regard for other road users, the plaintiff being one of them;d.Failing to brake, stop, swerve and/or slow down so as to keep the motor vehicle registration number KCX 039A in control;e.Diverting off the road at a non-designated area;f.Diverting off the road in a negligent and careless manner;g.Diverting from the road when it was not safe to divert;h.Hitting motor vehicle registration number KCY 468D and causing it to hit motor vehicle registration number KCR 664A which was parked off the road;i.Causing an accident and occasioning the plaintiff serious injuries;j.Generally being negligent. 3.The plaintiff further pleaded particulars of injuries sustained as well as those of loss and damage. He relied on the doctrines of Res ipsa loquitor and vicarious liability and prayed for judgment against the defendant for:a.General damages;b.Special damages for Ksh. 3,050/=;c.Costs of the suit and interest. The Defendant’s Defence 4.The defendant entered appearance on 13/6/2023 and filed a statement of defence on the same day. The defendant denied that it was the registered owner of motor vehicle registration number KCX 039A, denied that the plaintiff was a lawful passenger in motor vehicle registration number KCY 468D, denied that motor vehicle registration number KCX 039A was carelessly and negligently driven that it diverted off the road at a non-designated area, denied that the motor vehicle hit motor vehicle registration number KCY 468D, denied the occurrence of the accident in the manner pleaded by the plaintiff and denied the particulars of negligence pleaded in the plaint. 5.In the alternative, the defendant averred that if the accident occurred, as the plaintiff may prove, the same was caused solely and/or substantially contributed to by the negligence of the plaintiff (wrongly indicated as deceased). The defendant pleaded the following particulars of negligence as against the plaintiff:a.Failing to take any or any adequate precaution for his own safety;b.Failing to heed the instructions on safety precautions when travelling;c.Failing to heed the traffic rules and regulations when travelling. 6.The defendant further pleaded the following particulars of negligence against the driver of motor vehicle registration number KCR 664A:a.Failing to have any or any sufficient regard for the safety of the users of the road by parking without due care and attention;b.Failing to keep any or any proper look out for other vehicles that might reasonably have been on the said road;c.Endangering the lives of other road users in his manner of parking;d.Having total disregard for the traffic rules;e. YFailing to have due care and skill expected of a competent driver. 7.The defendant also pleaded the following particulars of negligence against the driver of motor vehicle registration number KCY 468D:a.Driving at an excessive speed in the circumstances;b.Failing to have any or any sufficient regard for the safety of the users of the said road by driving without due care and attention;c.Failing to keep any or any proper look out for other vehicles that might reasonably have been on the said road;d.Endangering the lives of other road users in his manner of driving and overtaking;e.Having total disregard for the traffic rules;f.Failing to stop, slow down, to swerve or in any way so as to manage the said motor vehicle so as to avoid the collision;g.Failing to have due care and skill expected of a competent driver. 8.The defendant further averred in the alternative that if the alleged accident occurred, then the same was beyond the control of the defendant. It denied the applicability of the doctrine of Res ipsa loquitor and pleaded the doctrine of volenti non fit injuria. The defendant denied the particulars of injuries, loss and damage and prayed that the plaintiff’s suit be dismissed with costs. The Evidence The plaintiff’s Case 9.The Plaintiff testified and called two other witnesses in support of his case. PW 1 Police Constable Ann Zawadi testified that she was a traffic police officer based at Kibwezi Police station. The witness confirmed that the accident was reported at the police station. She produced the police abstract in evidence and stated that the driver for KCX 039A was blamed for the accident. PW 2 Doctor Esther Nzomo Musyoki testified that she examined the plaintiff and prepared a medical report. She produced the medical report and payment receipt in evidence. PW 3 was the plaintiff himself. He adopted his statement filed in court as part of his testimony. 10.The evidence of the plaintiff was that he was a passenger aboard motor vehicle registration number KCY 468D on 11/12/2022. That the said motor vehicle was being driven from Kitui general direction to Kibwezi town. The plaintiff stated that motor vehicle registration number KCX 039A was also heading in the same direction. That KCX 039A diverted at a non-designated area and in the process, it hit motor vehicle registration number KCY 468D and the latter rammed into another stationary motor vehicle. The plaintiff stated that he was injured as a result of the accident. The plaintiff produced documents in support of his case. The Defendant’s Case 11.The defendant did not call any witness. Main Issues for Determination 12.In my opinion, the main issues for determination are as follows:i.Whether an accident occurred on 11/12/2022 at Kibwezi area along Kibwezi-Kitui road involving motor vehicles registration numbers KCX 039A and KCY 468D;ii.Whether the plaintiff was a passenger in motor vehicle registration number KCY 468D at the material time;iii.Whether the defendant was the owner of motor vehicle registration number KCX 039A at the material time;iv.Whether the driver of motor vehicle registration number KCX 039A was to blame for the accident;v.Whether the defendant is vicariously liable for the accident;vi.Whether the plaintiff sustained injuries and suffered loss as a result of the alleged accident;vii.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;viii.Who should bear the costs of this suit? The Plaintiff's Submissions 13.On liability, the plaintiff relied on his testimony and that of the police officer and submitted that it was evident that motor vehicle registration number KCX 039A was to blame for causing the accident, for the reason that the said vehicle suddenly diverted when it was not safe to divert, at a non-designated place, at time vehicle registration number KCY 468D was already in the course of overtaking, thereby causing the accident. The plaintiff submitted that he was a mere passenger who could not do anything to avoid the accident. The plaintiff relied on the authorities of Janet Kathambi v Charity Kanja Njiru [2021] eKLR and Highland Creamers & Food Ltd v Ngetich [2024] KEHC 11128 (KLR). The plaintiff contended that his evidence was uncontroverted as the defendant did not call any witness. He urged the court to find the defendant 100% liable and relied on the authorities of Peter Ngigi Kuria & another (suing as the legal representatives of the estate of Joan Wambui Ngigi) v Thomas Ondili Oduol & another [2019] eKLR and Clean View Limited v Kahuthu [2025] KEHC 5794 (KLR). 14.On quantum, the plaintiff submitted a sum of Ksh. 500,000/= in general damages and relied on the following authorities: 1. Habiba Abdi Mohamed v Peter Maleve [2000]eKLR 15.The plaintiff suffered injuries on her left arm and her head and face. An award of Ksh. 400,000/= was made on 21/7/2000. 2. Francis Ochieng & another v Alice Kajimba [2015] eKLR. 16.The plaintiff and respondent in the appeal sustained head injuries, sub-conjuctival haemorrhage, periorbital sccymosis on both eyes and cut wounds to the right hand and knee. An award of Ksh. 350,000/= was made on 2/6/2015. 3. Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR. 17.The plaintiff and respondent in the appeal sustained blunt injury to the chest, bruises of the lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee. An award of Ksh. 350,000/= made on 28/12/2018 was affirmed on appeal on 10/3/2021. 18.The plaintiff further urged the court to award special damages of Ksh. 3,050/= as well as Ksh. 10,000/= for attendance of the police officer and Ksh. 5,000/= for the doctor’s attendance. The plaintiff also prayed for costs of the suit and interest. The Defendant’s Submissions 19.The defendant did not file submissions despite being given sufficient time to do so. Analysis and Determination 20.I have carefully considered the evidence on record and given due regard to the submissions made by the plaintiff. From the testimony of the plaintiff and the police officer as well as the documents produced in evidence, I have no doubt that an accident occurred on 11/12/2022 at Kibwezi area along Kibwezi-Kitui road involving motor vehicles registration numbers KCX 039A and KCY 468D. There is also sufficient evidence to show that the plaintiff was a passenger in motor vehicle registration number KCY 468D at the time of accident. The police abstract produced in evidence confirmed the position. In any event, the plaintiff's evidence was not controverted by the defence. 21.The plaintiff produced in evidence a copy of records from the Registrar of motor vehicles which indicates that the defendant was the registered owner of motor vehicle registration number KCX 039A as at 12/1/2023. The defendant did not attend court to deny that it was the owner of the said motor vehicle. I am satisfied that the defendant was the owner of motor vehicle registration No. KCX 039A at the time of accident. Liability 22.There is only one version as to how the accident occurred. This was the version that was given by the plaintiff. It is the duty of the plaintiff to establish or prove negligence on the part of the defendants. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintiff must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held as thus:“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.” 23.The evidence of the plaintiff was that both motor vehicles were heading in the same direction towards Kibwezi town from Kitui general direction. That motor vehicle registration number KCX 039A was ahead of KCY 468D and that as the latter motor vehicle was overtaking, KCX 039A suddenly turned right and as a result, the two motor vehicles collided. The plaintiff blamed the driver of KCX 039A for making a right turn when it was not safe to do and at a non-designated area. The uncontroverted evidence of the plaintiff clearly shows that the driver of the defendant’s motor vehicle was at fault. He was reckless in his manner of driving. There is clear and uncontroverted evidence on how the accident herein occurred. 24.I find that the evidence of the plaintiff as to how the accident occurred was consistent and was not shaken in cross-examination. In view of the evidence on record, there is a sufficiently high degree of probability, that, but for the acts of omission and commission by the driver of motor vehicle registration No. KCX 039A, the accident would have been prevented. The defendant in its statement of defence blamed the plaintiff as well as the drivers of motor vehicles registration numbers KCR 664A and KCY 468D. However, the defendant did not take out a third party notice against such drivers or even the owners of the said motor vehicles. The defendant did not also call any witness to rebut the version that was given by the plaintiff. Without the defendant having taken out third party notices, there is no way the court can apportion blame to the drivers of the two motor vehicles aforesaid. 25.The plaintiff was a mere passenger. The condition of the impugned motor vehicle was in the control and management of the defendant’s driver. It was the driver who was in control of the motor vehicle, and not the plaintiff. I find that the said driver was solely culpable as far as the accident is concerned. In my view, there are concrete facts on which a finding would be made that the driver of motor vehicle registration No. KCX 039A was solely negligent. I find the said driver 100% liable for the accident. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. 26.The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. In the case of Morgan v Launchbury [1972] ALL ER 606, it was held, inter alia, that:“To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 27.Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR the Court of Appeal held that:“Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 28.Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that:“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 29.It has not been denied in evidence that the driver of motor vehicle registration number KCX 039A was driving in the course of his employment with the defendant. Consequently, I find the defendant 100% vicariously liable for the accident. Quantum 30.The medical evidence on record indicates that the plaintiff sustained the following injuries:a.Deep cut wound on the face;b.Soft tissue injuries on the neck;c.Soft tissue injuries on the chest;d.Soft tissue injuries on the right shoulder; ande.Bruises on both lower limbs. 31.There is no contrary evidence. I find that there is sufficient evidence to prove that the plaintiff sustained injuries as a result of the accident. Given the fact that the defendant has been held 100% vicariously liable for the accident, the plaintiff is thus entitled to damages as against the defendant. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. 32.This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 33.I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.” 34.The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low. 35.Based on the above principles, I proceed to assess the damages payable as follows. General Damages for Pain, Suffering and Loss of Amenities 36.I have considered the injuries sustained by the plaintiff. The medical evidence produced by the plaintiff indicates that the plaintiff was treated as an outpatient. I have further considered the submissions made by the plaintiff on quantum as well as the authorities relied upon. The authorities relied upon by the plaintiff are comparable. On my part, I have considered the following authorities: 1. Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR. 37.The plaintiff and respondent in the appeal sustained rugged cut wounds on the temporal region of the head, soft tissue injuries to the neck, anterior chest, lower back, shoulders, right hand as well as swelling and bruises on the right index finger and both legs. The trial court awarded Ksh. 250,000/= in general damages on 26/5/2021. On appeal, the award was affirmed on 3/3/2022. 2. Ochola v Owuor [2024] KEHC 7689 (KLR). 38.The plaintiff and respondent in the appeal sustained soft tissue injuries to the right shoulder joint, soft tissue injuries to the anterior chest wall, soft tissue injuries to the neck, back and both knees. The trial court awarded Ksh. 250,000/= on 12/5/2022. On appeal, the award was reduced to Ksh. 150,000/= on 25/6/2024. 3. Pascal v Ouko [2023] KEHC 24463 (KLR). 39.The plaintiff and respondent in the appeal sustained chest contusion, blunt injuries to the back, scalp, neck, upper limbs and lower limbs and lacerations to the right knee. The trial court awarded Ksh. 200,000/= in general damages on 21/12/2021. On appeal, the award was reduced to Ksh. 150,000/= on 18/10/2023. 40.Given the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. 300,000/= in general damages would suffice. I award the same. Special Damages 41.The plaintiff pleaded special damages as follows:a.Motor vehicle search certificate………….Ksh. 550/=b.Medical report………………………………...Ksh. 2,500/=Total……………………………………………..….Ksh. 3,050/= 42.It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort- v - Phoenix of East Africa Assurance Co. Ltd the court said: “It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 43.In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 44.The special damages pleaded were sufficiently proven. The plaintiff made a frail attempt to introduce further special damages of Ksh. 15,000/= being attendance costs for the doctor and the police officer. These were not pleaded and in any event, they cannot be properly claimed as special damages. They ought to be claimed as part of the costs of the suit upon success. I will thus disregard them. Consequently, I award special damages of Ksh. 3,050/= as pleaded and proved. Disposition 45.In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendant. Consequently, I make the following awards:1.General damages for pain, suffering and loss of amenities...........Ksh. 300,000/=2.Special damages………………………………………………………………………..…..Ksh. 3,050/=Total…………………………………………………………………………….……….…..Ksh. 303,050/= 46.The plaintiff is also awarded interest on the damages as well as costs of the suit. 47.The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” 48.In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” 49.Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows:“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment ………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied) 50.From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full whereas interest on special damages shall accrue from the date of filing suit to the date of judgment DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 4TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.