https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/425

**REPUBLIC OF KENYA** **IN THE NAKURU LAW COURTS** **CIVIL CASE E497 OF 2024** **PA NDEGE, SPM** **JOYCE WAITHIRA MACHARIA…….…………………………PLAINTIFF** **VERSUS** **SYLVIA KERENGO……….………………………………1ST DEFENDANT** **MIMOSA GRANITES HOLDINGS LIMITED…………2ND DEFENDANT** **JUDGEMENT** 1. The Plaintiff in this case, is a minor suing through his mother, Joyce Waithira Macharia, is praying for judgment against the Defendants for general damages and Special damages of Kshs. 12, 270/- emanating from a road traffic accident that occurred on or about the 16th day of June 2021, as a consequence of which she sustained severe injuries. She brought this suit vide a Plaint dated 14th June, 2024. 2. It is common ground herein that the Plaintiff was a pillion passenger on a motor cycle Registration Number KMDY 675F along Showground – Nakuru Road when the accident herein occurred. It’s the Plaintiff’s case that the accident was solely caused by the 1st Defendant who negligently drove, managed, and/or controlled her motor vehicle thereby causing it to collide with the motor vehicle on which the plaintiff was a passenger, reasons whereof she sustained the sever inures outlined below: - 3. Blunt injury to the right knee joint leading to soft tissue injuries 4. Blunt injury to the lower jaw leading to soft tissue injuries 5. Pain in the right knee joint 6. The plaintiff particularized his claim of Defendants’ negligence in Paragraph 4 of his Plaint. The Defendants entered appearance and filed a joint defense statement in which they aver that the Plaintiff and/or the rider of the motor cycle negligently contributed to the accident. 7. The plaintiff testified as PW1 and called his mother as PW2. The 1st defendant testified for the defence as DW1. That being the case, liability and quantum are basically the issues of determination from the evidence tendered herein. **Determination on liability and quantum.** 1. On liability, the plaintiff testified as PW1, adopted his statement dated 14/6/2024 and produced various exhibits. In his statement, he states that they were suddenly hit by the vehicle herein which was being driven by a woman. That they were three passengers on the motor cycle. His mother PW2, was however not at the scene and her evidence on the accident herein is basically hearsay. 2. The 1st defendant, DW1, in her evidence however stated that she was exiting the hospital gate where she works. That the plaintiff herein came from the Showground directions and that she gave way to them before joining the main road. She confirmed that the collision herein happened when she was joining the highway. 3. In a bid to determine and or apportion liability herein, I have gone through the submissions filed before this Honorable Court by the parties regarding this matter. I do agree that in an action for negligence, the burden of proof falls on the party alleging to establish each element of the negligence, hence it is for the Plaintiff herein to adduce evidence of facts on which he bases his claim. It must be established that there was a duty of care which was breached resulting to loss and damage to the Plaintiff. The Plaintiff herein therefore has a duty to prove his case on a balance of probabilities that the Defendants were so negligent so as to occasion the accident that led to the Plaintiff’s injuries. 4. As aforestated, there was no dispute that there was an accident. There was no dispute that the accident happened while the 1st defendant was joining the main road. I have gone through the evidence by the plaintiff, mainly PW1, he stated that they were hit by a Toyota Corolla driven by a woman, most probably DW1 herein. He did not however prove any particulars of negligence he pleaded in his plaint and whether, the 1st defendant was driving at an excessive speed, was careless or negligent, failed to keep any proper look-out or to have sufficient regard for other road users such as their motor cycle, was not observant at all, failed to stop, slow down, swerve etc. 5. The fact than an accident or a collision happened is not in itself full proof evidence of negligence. The plaintiff must plead and prove fault on the part of the defendant. I find no evidence to point a blame on the defendants. 6. I thus do find that liability has not been proved to the required standard and do hereby dismiss the plaintiff’s claim with costs to the defendants. Had he succeeded, however, I would have awarded him Kshs. 200,000/- as general damages mainly relying on the authorities submitted by the learned counsel for the plaintiff. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS…04TH . DAY OF…AUGUST...2026** **ALOYCE-PETER-NDEGE** **SENIOR PRINCIPAL MAGISTRATE** *In the presence of;* **Plaintiff’s Counsel: Imbwaga** **Defence Counsel: n/a** **Plaintiff: n/a** **1st Defendant: n/a**