https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/773

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E265 OF 2025** **ALICE NASIMIYU IKANDA…………..…………..………….………………………PLAINTIFF** **VERSUS** **IWAKI TRADING LTD & SAVIOUR MABALE…….……………….……………DEFENDANT** **JUDGMENT** 1. The Plaintiff moved this court by a Plaint dated 04th June 2025, praying for judgment against the Defendants jointly and severally for:- 2. *General damages, past, present, and future medical and nursing expenses* 3. *Future medical expenses Kshs. 150,000/=* 4. *Special Damages Kshs. 18,440/=* 5. *Costs* 6. *Interest* 7. *Any other relief this honourable court may deem fit to grant* 8. The Plaintiff pleaded in her Plaint that the cause of action herein arose when she was a pillion passenger on motorcycle registration number KMEJ 678 J (“the motorcycle”) along Bungoma – Mateka road at Okanya area, only for the motor vehicle registration number KDQ 581 Q (“the motor vehicle”) to knock her from behind, thereby occasioning her severe body injuries. 9. She further averred that the accident was caused by the Defendants' negligent acts and omissions set out in paragraph 5 of the Plaint. 10. The Plaintiff also averred that the accident caused her loss and damage, and that despite issuing a demand notice and notice of intention to sue the Defendants, the Defendants had not made good her loss, thereby necessitating this suit. 11. The Defendants neither entered appearance nor filed a Statement of Defence despite having been duly served with the Plaintiff’s pleadings and the summons to enter appearance. 12. It is against this background that this matter proceeded by way of formal proof. **EVIDENCE** **Plaintiff’s case** 1. **PW1 Alice Nasimiyu Ikanda** adopted her witness statement dated 04th June 2025 as her evidence in chief. Her testimony was, by and large, a rendition of her averments in the Plaint summarized above; therefore, it will not serve any purpose to reproduce the same here. 2. She also produced all the documents in her list of documents on record as exhibits. **ANALYSIS & DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, the written submissions filed, as well as the authorities cited by the Plaintiff. 2. It is settled law in this jurisdiction that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, reiterates this legal principle as follows: ***‘****’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’* 1. The duty of a party to prove the averments in their pleadings on a balance of probabilities as demanded by section 107 of the Evidence Act is not lessened even in instances where a case proceeds by way of formal proof. 2. The above legal position can be gleaned from **Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347,** where the Court of Appeal held that; *“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.”* 1. Similarly, in **Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR,** it was stated that a Court should not take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 2. Guided by the authorities above, this court will proceed to determine whether the Plaintiff proved her case on a balance of probabilities. 3. The police abstract dated 20th May 2025(Pexh.4) shows that the accident herein occurred as pleaded in the Plaint, and that the same was reported at Bungoma Police Station vide OB. No. 105/19/05/2025. 4. In addition to the above, the said police abstract reveals that the Plaintiff, who was a pillion passenger, was injured as a result of the accident. Further, the police abstract shows that the 2nd Defendant was the motor vehicle’s driver at the time of the accident. 5. The copy of records dated 20th May 2025 (Pexh. 10), on the other hand, shows that the 1st Defendant was the motor vehicle’s registered owner at the time of the accident. 6. The police abstract and the copy of records herein are public documents. The law in this jurisdiction is that there is a rebuttable presumption of truth in the entries made by public officers in public documents (see section 83 of the Evidence Act). 7. In the absence of evidence to controvert the contents of the above public documents, this court is inclined to find that the accident herein occurred as set out in the police abstract, that the Plaintiff was injured as a result of the said accident, and that the 1st Defendant owned the motor vehicle while the 2nd Defendant was driving the said motor vehicle at the time of the accident. 8. Given the foregoing, this court is of the considered view that the only issues for determination are liability and quantum. **Liability** 1. There is no doubt that the Plaintiff was a pillion passenger on the motorcycle at the time of the accident. Therefore, she was neither in control of the motorcycle nor the motor vehicle involved in the accident. 2. The uncontroverted direct evidence by the Plaintiff on the circumstances under which the accident occurred shows that the accident occurred when the motor vehicle lost control and knocked the motorcycle she had boarded from behind. 3. Motor vehicles, if properly driven and maintained, do not just knock anything on their path or way. Accidents do not just occur; they are caused either by acts of God, human error, or mechanical failure. There is nothing on record to suggest that an act of God caused the accident herein. 4. The accident herein can only be attributed to the motor vehicle’s driver's negligence or the motor vehicle’s mechanical failure. 5. It goes without saying that the motor vehicle and the motorcycle owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safely. That duty of care was breached when the Plaintiff was involved in an accident before reaching her destination. 6. The liability of a passenger in an accident is well settled in this jurisdiction. In **Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Another (2017) eKLR,** the court held; *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 authority above shows that in the absence of evidence to prove negligence on the part of a passenger, a passenger cannot be held liable for the causation of an accident. (See also **Rosemary Wanjiku Kungu v Francis Mutua Mbuvi & Another (2014) eKLR**and **Viviane Anyango Onyango v Charity Wanjiku (2017) eKLR).** 2. There is no evidence on record pointing to any negligence on the Plaintiff’s part at the time of the accident. That being the case, the motor vehicle driver must be held liable for the occurrence of the accident. 3. The Plaintiff pleaded that the 2nd Defendant was the 1st Defendant’s agent at the time of the accident. The 1st Defendant did not controvert this averment. In the circumstances, the 1st Defendant must be held vicariously liable for the 2nd Defendant’s acts and omissions that led to the accident. 4. It is against this backdrop that this court finds the Defendants jointly and severally 100% liable for the occurrence of the accident. **Quantum of Damages** 1. **General Damages for pain and suffering** 2. This court has duly considered the contents of the Plaintiff’s P3 form dated 20th May 2025 (Pexh.3), outpatient card from Bungoma County Referral Hospital (Pexh. 5), treatment notes from Zion Medical Centre dated 19th May 2025 (Pexh. 14), and the medical report dated 20th May 2025 by Dr. Mulianga Ekesa (Pexh.2). 3. The medical documents in paragraph 31 above corroborate the Plaintiff’s testimony and averments in her Plaint regarding the injuries the Plaintiff suffered as a result of the accident. 4. In the circumstances, this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident caused her to suffer: 5. Soft tissue injuries; 6. Fracture of the right ulna; 7. Fracture of the right upper end of the fibula; 8. Fracture of the right tibial plateau; and 9. Fracture of the upper end of the right tibia. 10. It is well settled in this jurisdiction that the assessment of damages must take into account the principle in the case of **Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR** that comparable awards should compensate comparable injuries. 11. In **Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR,** where Nambuye, J. (as she then was) listed the following principles on assessment of damages: 12. *Damages should not be inordinately too high or too low* 13. *They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered* 14. *Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.* 15. *Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment.* 16. This court has given due regard to the guidelines in the authorities above, as well as the Plaintiff’s written submissions on quantum. 17. The Plaintiff submitted that an award of Kshs. 2,000,000/= was sufficient under this head. The Plaintiff relied on authorities where the Plaintiffs suffered more severe injuries than the injuries sustained by the Plaintiff herein. That being the case, the authorities cited by the Plaintiff’s counsel for an award of Kshs. 2,000,000/= are not applicable in this case. 18. This court finds the authorities below relevant to this case. 19. In **Kimita v Travel Budget Express & another (Civil Appeal E042 of 2022) [2024] KEHC 6435 (KLR),** the High Court upheld an award of general damages of Kshs. 800,000/= for a Plaintiff who suffered a fracture distal end of the left tibia and fibula, severe soft tissue injury of the left leg, deep cut wound on the forehead leading to severe soft tissue injuries, cut wound on the zygomatic area leading to severe soft tissue injuries, deep cut wound on the left arm leading to soft tissue injuries, fracture of the right tibia, compound fracture of the left tibia, and deep cut wound on the chin. 20. Finally, in **Kanyi alias Samson Munene & another v Warui (Civil Appeal E050 of 2025) [2026] KEHC 5550 (KLR),** the court awarded Kshs. 800,000/= in general damages for soft tissue injuries, right leg tibia/fibula fracture, short ankle back slab in situ, and painful, swollen left lower limb with open fracture of the distal tibia/fibula. on the leg and a cut wound to the head. 21. Guided by the authorities above, this court makes an award of Kshs. 800,000/= under this head. 22. **Future medical expenses** 23. The Plaintiff pleaded for future medical expenses of between Kshs. 100,000/= - Kshs. 150,000/= in paragraph 6 of her Plaint for corrective surgery of the fractures she sustained. 24. The medical report on record by Dr. Ekesa corroborated the Plaintiff’s claim for future medical expenses for corrective surgery. 25. The evidence on record on the claim for future medical expenses satisfied the threshold for a claim for medical expenses set out by the Court of Appeal in **Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR.** 26. In the absence of any other medical evidence to controvert Dr. Ekesa’s evidence on the cost of the Plaintiff’s future medical expenses, this court awards the Plaintiff Kshs. 150,000/= for corrective surgery. **(c)Special Damages** 1. The Plaintiff pleaded for special damages of Kshs. 18,440/= as particularized in paragraph 6 of her Plaint. 2. The receipts for specials on record from NTSA, Bungoma County Referral Hospital, Dr. Ekesa, and Zion Medical Clinic proved the claimed special damages of Kshs. 18,440/=. 3. Given the above, this court finds that the Plaintiff pleaded and proved Special Damages of Kshs. 18,440/=. **DETERMINATION** 1. Given the foregoing, judgment is entered against the Defendants jointly and severally in the following terms:- 1. *Liability……………………………………….100%* 2. *General Damages…………………...………Kshs. 800,000/=* 3. *Future Medical Expenses…………………..Kshs. 150,000/=* 4. *Special Damages……………………...…….Kshs. 18,440/=* ***Net Award…………………………Kshs. 968,440/=*** 1. The General Damages and the Future Medical Expenses 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 07th May 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Onchiri for the Plaintiff C/A: Mr. Rioba