https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/759

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E185 OF 2025** **HUMPHREY LUKAMIKA KIKUMBA (Suing as the next friend and father of MARION IMINZA……..………………………………………..……...……………PLAINTIFF** **VERSUS** **PAUL CHEGE MBUTHIA……………………….……….……………………………………DEFENDANT** **JUDGMENT** 1. M. I (“the minor”) instituted this suit through her father and next friend vide a Plaint dated 29th April 2025 seeking judgment against the Defendant for: 2. *Special damages of Kshs. 26,860/=* 3. *General damages* 4. *Interest on (a) and (b) above* 5. *Cost of the suit* 6. It is the minor’s case that the cause of action herein arose on 03rd March 2025 when she was a pillion passenger on a motorcycle along Bungoma – Chwele road at Zerozero area when the motorcycle she had boarded was hit from behind by the Defendant’s motor vehicle registration number KCF 307 X (“the motor vehicle”), causing the minor to sustain bodily injuries. 7. The minor further averred that the accident caused the minor loss and damage, thereby necessitating the filing of this suit for damages. The minor also averred that the accident was solely caused by the Defendant’s negligent acts and omissions particularized in paragraph 5 of the Plaint. 8. The Defendant entered appearance and filed a Statement of Defence dated 18th August 2025 denying all the averments in the Plaint save for the parties’ descriptive averments and this court’s jurisdiction to hear and determine this matter. 9. The Defendant pleaded in the alternative that, if at all, the accident herein occurred, then the same was caused or substantially contributed to by the minor’s and the motorcycle rider’s negligent acts and omissions enumerated in paragraph 5 of his Statement of Defence. The Defendants urged this court to dismiss the Plaintiff’s case with costs. 10. Given the divergent positions taken by the parties herein on the circumstances under which the accident herein occurred, this matter was set down for hearing for the parties to prove the averments in their respective pleadings on a balance of probabilities. 11. The evidence adduced before this court during the hearing is summarized below. **EVIDENCE** **Plaintiff’s case** 1. **PW1 Humphrey Lukamika Kikumba** is the minor’s father. He adopted his witness statement dated 29th April 2025 as his evidence in chief. 2. His testimony was that he was riding on a motorcycle which was some 100 meters behind the motorcycle the minor had boarded while the motor vehicle was between the two motorcycles all headed to the same direction. He then saw the motor vehicle hit the motorcycle the minor had boarded from behind thereby causing the minor to sustain bodily injuries. He took the minor to hospital for treatment at Bungoma County Referral Hospital and reported the accident to the police. He produced the documents in the list of documents dated 29th April 2025 as exhibits, save for the police abstract and medical report. 3. He added in cross-examination that the minor sustained injuries soft tissue injuries to the head, eyelid, back and chest. He admitted that the minor neither sustained a fracture nor a dislocation. 4. **PW2 Dr. Joseph Sokobe** produced the minor’s medical report dated 07th April 2025 as an exhibit. He added that he charged the minor Kshs. 6,000/= for the medical and produced a receipt to evidence the payment. 5. He confirmed in cross-examination that the minor sustained soft tissue injuries and that the Plaintiff must have fully recovered from the injuries as at now. 6. **PW3** **No. 81XXX PC Jackline Ochieng** of Bungoma Police Station produced the accident’s police abstract showing that the accident herein was reported at Bungoma Police Station vide OB. No. 27/03/03/2025. She added that the police abstract confirmed that the accident occurred. 7. She added in cross-examination that the matter was still under investigation. She added that she visited the scene and formed an opinion that the motor vehicle driver was to blame for the accident given the point of impact. **Defendant’s Case** 1. The Defendant did not call any witnesses to substantiate the averments in his Statement of Defence. The consequence of a party failing to call witnesses or adduce evidence in support of the averments in their pleadings was eloquently explained in **Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya [2020] eKLR,** as follows: *“Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: -* *“In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.”* 1. In the circumstances, the averments in the Defendant’s Statement of Defence on record remain mere allegations which this court will not rely on in determining this case in line with the holding in **ANALYSIS AND DETERMINATION** 1. 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. 2. 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 and was driving the motor vehicle at the time of the accident. 3. It is against this backdrop that this court is of the considered view that the issues which commend to this court for determination are liability and quantum. **Liability** 1. Before determining liability, this court has noted a worrying trend in Bungoma, just like in this case, where advocates fail to call minors who were involved in an accident to testify on the circumstances under which the accident occurred. The argument advanced by such advocates is that the minor’s next friend, having instituted the suit on behalf of the minor, can testify on behalf of the minor. 2. That argument has no basis in law since the operative word in Order 32 Rule 1 of the Civil Procedure Rules is ‘institute.’ ‘Institute’ and ‘testify’ are two distinct legal terms. The mere fact that a minor’s suit was instituted by a next friend does not oust the minor’s duty to prove their case on a balance of probabilities. 3. The minor remains a competent and compellable witness, save in some instances where the minor is under the age of ten (10) years and cannot be held to have contributed to the occurrence of an accident unless it is proved that the minor had the capacity to take necessary precautions to prevent the occurrence of the accident (see **Rahima Tayab & Others v Anna Mary Kinanu Civil Appeal No. 29 of 1982 [1983] KLR 114; 1 KAR 90).** 4. Where a minor’s next friend who never witnessed the occurrence of an accident purports to testify on behalf of the minor on the circumstances under which the accident occurred, such evidence is inadmissible hearsay evidence. 5. The saving grace in this case is that the minor’s father (PW1), who instituted this suit on behalf of the minor, witnessed the occurrence of the accident; thus, his evidence is direct evidence on the circumstances under which the accident occurred. 6. PW1’s uncontroverted direct evidence on the circumstances under which the accident occurred was that the accident occurred when the motor vehicle hit the motorcycle the minor had boarded from behind. 7. Direct evidence within the meaning of section 63 (2) of the Evidence Act is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 8. In this jurisdiction, direct evidence by a person who witnessed or was involved in an accident on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see **Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)).** 9. This begs the question of whether PW1’s uncontroverted direct evidence that the accident occurred when the motor vehicle hit the motorcycle the minor had boarded from behind was sufficient to establish negligence by the Defendant. 10. Musyoki , J, in **Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR)** answered the question above as follows:- *A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’* 1. Guided by the authority above, it follows that the Plaintiff’s direct uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence against the Defendant. 2. In any event, the minor who was only a pillion passenger on the motorcycle at the time of the accident was neither in control of the motorcycle she had boarded nor the motor vehicle that hit the motorcycle. Furthermore, there is no evidence on record to prove, on a balance of probabilities, that the minor was negligent at the time of the accident. Therefore, the Plaintiff cannot be blamed for the occurrence of the accident, as held in **Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR,** 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.”* 1. The two drivers owed the minor a duty of care to ensure that the minor reached her destination safe and sound. That duty of care was breached when the accident occurred, causing multiple soft tissue injuries to the minor. 2. The minor having established a prima facie case of negligence against the Defendant, it was incumbent upon the Defendant to dislodge the prima facie case of negligence through evidence. The Defendant did not do so. 3. The Defendant deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 4. In **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR,** the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: *“ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:* *‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’* *Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”* 1. In the circumstances, it follows that the failure by the Defendant to adduce evidence on the circumstances under which the accident occurred only leads to the inevitable conclusion that had the Defendant led evidence on the circumstances under which the accident occurred, that evidence would have been adverse to their case. 2. The foregoing does not in any way mean that this court has shifted the burden of proof to the Defendant. This simply means that upon the Plaintiff establishing a prima facie case of negligence against the Defendant, the evidential burden shifted to the Defendant to dislodge the prima facie case of negligence established against them by the minor. 3. The upshot of the above is that this court finds the Defendant 100% liable for the occurrence of the accident. **Quantum** 1. **General Damages for Pain and Suffering** 2. The minor pleaded in paragraph 6 of her Plaint that the accident caused her to sustain blunt injuries to the head, chest, and back, as well as a cut wound on the right eyelid. 3. The uncontroverted medical evidence contained in Dr. Sokobe’s medical report dated 07th April 2025, the minor’s treatment notes dated 03rd March 2025 and the P3 form dated 03rd March 2025 proved on a balance of probabilities that the Plaintiff sustained the injuries pleaded in paragraph 6 of her Plaint. 4. In the circumstances, this court finds and holds that the Plaintiff sustained blunt injuries to the head, chest, and back, as well as a cut wound on the right eyelid as a result of the accident herein. 5. The law is firmly settled 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 Defendant 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 **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. 3. 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. 4. 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. 5. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 250,000/= are usually made for moderate multiple soft tissue injuries. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. **Special Damages** 1. The minor pleaded for Special Damages of Kshs. 26,860/=. The receipt for the medical report for Kshs. 6,000/= and the receipt for the copy of records from NTSA for Kshs. 550/= proved Special Damages of Kshs. 6,550/=, and the same is awarded. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: - 2. *Liability………………………………………100%* 3. *General Damages…………………...………Kshs. 200,000/=* 4. *Special Damages……………………...…….Kshs. 6,550/=* ***Total Award……………………..Kshs. 206,550/=*** 1. The General Damages will accrue interest at court rate from the date of this judgment till payment in full, while the 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 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Mulongo h/b for Mr. P. Juma for the Plaintiff Mr. Ochieng for the Defendant C/A: Mr. Rioba