https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/622

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E370 OF 2025** **LYNNAX YVONNE BARASA…………..…………..………….………………….PLAINTIFF** **VERSUS** **JOHN WAITHAKA THUO…….……………….…………..……………….......DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendant through a Plaint dated 26th August 2025, where she sought judgment against the Defendant for: 2. *General damages past, present and future medical and nursing expenses* 3. *Future medical expenses Kshs. 50,000/=* 4. *Special damages Kshs. 5,530/=* 5. *Costs* 6. *Interest* 7. *Any other relief this Honourable Court may deem fit to grant* 8. The Plaintiff pleaded that the accident herein occurred on 20th July 2025 along Webuye – Bungoma road when she was a lawful fare paying passenger in the Defendant’s motor vehicle registration number KBR 627 B (“the motor vehicle”) only for the said motor vehicle to collide with motor vehicle registration number UBR 747 U/UAQ 289 C (“the other motor vehicle”) leading to the accident which caused her to sustain the injuries pleaded in paragraph 5 of the Plaint. 9. The Plaintiff blamed the occurrence of the accident on the Defendant’s negligent acts and omissions particularized in paragraph 4 of the Plaint. 10. The Defendant entered appearance and filed a Statement of Defence dated 07th October 2025 putting the Plaintiff to strict proof of the averments in her Plaint. He pleaded in the alternative that, if the accident occurred, it was caused by the Plaintiff’s and the other motor vehicle driver’s negligent acts and omissions pleaded in paragraph 6 of the Statement of Defence. 11. In response, the Plaintiff filed a Reply to the Statement of Defence reiterating the contents of the Statement of Defence. 12. The evidence adduced before this court during the hearing of this matter is summarized below. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Lynnax Yvonne Barasa** adopted her witness statement dated 26th August 2025 as her evidence in chief. She also produced all the documents in her list of documents on record as exhibits. 2. Her testimony was that the accident occurred when the Defendant’s motor vehicle was speeding, only for it to hit a stalled motor vehicle. 3. In cross-examination, she added that the accident occurred at around 0600hrs when there was slight darkness. She could not remember if there were warning signs placed on the road to warn other road users about the stalled motor vehicle. 4. **PW2 Elias Adoka** a Clinical Officer at Bungoma County and Referral Hospital produced that Plaintiff’s discharge summary from Bungoma County Referral Hospital showing that the Plaintiff was admitted at the facility from 28th July 2025 to 07th August 2025 where she was treated for a fracture of the clavicle arising from a road traffic accident as an exhibit. 5. He added in cross-examination that the implants in the Plaintiff’s fractured clavicle ought to be removed. 6. **PW3 Dr. Ekesa Mulyanga** produced the Plaintiff’s medical report dated 20th August 2025 showing that the Plaintiff sustained soft tissue injuries and a fracture of the clavicle as an exhibit. He added that the Plaintiff would require Kshs. 50,000/= for the removal of the implants. He also produced the receipt for Kshs. 4,000/= for the medical report as an exhibit. 7. **PW4 No. 76XXX PC Isaac Kimani** of Bungoma Police Station produced the police abstract dated 01st August 2025 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 09/20/07/2025 as an exhibit. He also stated that the Plaintiff was a passenger in the Defendant’s motor vehicle when the accident occurred. 8. He could not tell the circumstances under which the accident occurred. **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, guided by the authority above, 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. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. 2. The uncontroverted evidence on record is that the Plaintiff was injured as a result of the accident on record while aboard the Defendant’s motor vehicle which was being driven by the Defendant’s lawful agent or servant at the time of the accident. There is nothing on record to suggest that the Defendant’s driver was on a frolic of his own when the accident occurred. It thus follows that the Defendant will be vicariously liable for his driver’s negligent acts or omissions in the event this court finds that the Defendant’s driver’s negligence caused or contributed to the occurrence of the accident. 3. The foregoing inclines this court to find that the issues for determination are liability and quantum. **Liability** 1. The Plaintiff was a passenger in the Defendant’s motor vehicle when the accident occurred. Therefore, she was not in control of the two motor vehicles involved in the accident. The uncontroverted direct evidence by the Plaintiff on the circumstances under which the accident occurred shows that the accident occurred when the Defendant’s motor vehicle rammed into a stalled motor vehicle. 2. 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, only the drivers of the motor vehicles involved in the accident can be deemed to have caused or contributed to the occurrence of the accident. 3. It should be remembered that whereas the Defendant also blamed the other motor vehicle’s driver’s negligence for causing the accident, the Defendant did not deem it fit to seek leave to join the said motor vehicle’s owner or driver to this suit. In the circumstances, this court cannot apportion liability to a person who is not a party to this suit. In any event, the Defendant did not adduce any evidence to prove the particulars of negligence he attributed to the other motor vehicle’s driver in his Statement of Defence. 4. A driver who hits another motor vehicle from behind bears the burden of dislodging a prima facie case of negligence established against him, as was aptly explained by the Court of Appeal in **Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR)** 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 the burden on the appellant to prove that the collision was not due to his negligence.”* 1. The fact that the accident occurred early in the morning when it was slightly dark required the Defendant’s driver to drive the motor vehicle at a reasonable speed which could enable him to brake or swerve on time to prevent any collision with any motor vehicle ahead whether moving or stalled. 2. The Defendant did not adduce any evidence to dislodge the prima facie case of negligence established by the Plaintiff against their driver. 3. Further, the mere fact that the other motor vehicle had stalled on the road did not give license to the Defendant’s driver to ram into the said motor vehicle as was eloquently explained in **Masembe v Sugar Corporation and Another [2002] 2 EA 434**, thus: *“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.”* 1. Given the circumstances of this case, this court takes the view that if the Defendant’s driver was driving the motor vehicle at a reasonable speed, he would have seen the stalled motor vehicle in time, applied the brakes and swerved to prevent the occurrence of the accident. 2. In the absence of evidence by the Defendant on the steps his driver took to prevent the occurrence of the accident, this court finds the Defendant 100% liable for the occurrence of the accident. **Quantum of Damages** 1. **General Damages for pain and suffering** 2. The uncontroverted medical evidence on record proved on a balance of probabilities that the accident caused the Plaintiff to sustain soft tissue injuries, a fracture of the right clavicle and psychological trauma. 3. The law in this jurisdiction is 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. 4. 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: 5. *Damages should not be inordinately too high or too low* 6. *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* 7. *Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.* 8. *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.* 9. This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record on quantum. 10. The Plaintiff submitted that an award of Kshs. 1,000,000/= would be reasonable compensation under this head. The authority relied upon by the Plaintiff for an award of Kshs. 1,000,000/= is not applicable in this case since the Plaintiff in that case sustained more serious injuries compared to the injuries sustained by the Plaintiff herein. 11. The Defendant, on the other hand, submitted that an award of Kshs. 250,000/= was sufficient under this head by relying on 2021 and 2022 decisions. Whereas those decisions involve Plaintiffs who suffered injuries similar to the ones sustained by the Plaintiff herein, awards made in 2021 and 2022 cannot be made in 2026 given the passage of time and inflation trends in this country. 12. In **Akula v Muthama & another (Civil Appeal E158 of 2024) [2026] KEHC 7805,** the High Court upheld an award of general damages of Kshs. 500,000/= for soft tissue injuries and a fracture of the clavicle. 13. It is against this backdrop that this court awards the Plaintiff general damages of Kshs. 500,000/=. 14. **Future medical expenses** 15. The Plaintiff pleaded for future medical expenses of between Kshs. 50,000/= for the removal of the implants. Dr. Ekesa’s report dated 20th August 2025 confirmed the need for future medical expenses of Kshs. 50,000/= for the removal of the implants. 16. Be that as it may, the Plaintiff’s discharge summary from Bungoma County Referral Hospital shows that the Plaintiff’s medical expenses for the surgical procedures for the fractured clavicle were settled by Social Health Authority (SHA). It thus follows that in the absence of the Plaintiff’s evidence that her SHA insurance cover is no longer active, SHA will settle her future medical expenses for the removal of the implants. 17. In **Mupa v Chilson & another (Civil Appeal E045 of 2023) [2026] KECA 751 (KLR)** the Court of Appeal held thus on who should claim for medical expenses paid by an insurer: *“49.The doctrine of subrogation in insurance law provides for reimbursement of an insurer who has indemnified an insured person under the contract of indemnity insurance. For any third-party claims, it is the insurer who is entitled to reimburse itself of any claims that the insured will have against the third parties.* *50.In the appeal before us, the appellant acknowledged that she was insured by APA Insurance Limited. In our view, the premiums paid are deemed to have been reimbursed to the appellant upon payment of the medical claims. She insured herself against future risks to obviate the need to spend money from her pocket. Had the appellant herself incurred the expense of paying from her own pocket, it would make sense to plead for reimbursement since there would be evidence of receipt payments. In this instance, we do not have receipts confirming that payments were made by her. In any event, it is the hospital which treated her that would be entitled to make claims from the insurance company. To make a finding that the appellant is entitled to Kshs.347,480, would be tantamount to an unjust enrichment on her part.”* 1. The authority above leaves no doubt in this court’s mind that a Plaintiff cannot directly seek from a Defendant treatment expenses payable by an insurer. That can only be done through a subrogation claim after an insurer has made good the Plaintiff’s loss. 2. In the circumstances, this court declines to award the Plaintiff future medical expenses of Kshs. 50,000/=. **(c)Special Damages** 1. The Plaintiff pleaded for special damages of Kshs. 5,530/= as particularized in paragraph 5 of her Plaint. The receipts for specials on record proved the pleaded special damages of Kshs. 5,530/=; therefore, the same is awarded. **DETERMINATION** 1. Given the foregoing, judgment is entered against the Defendant in the following terms:- 1. *Liability……………………………………….100%* 2. *General Damages…………………...………Kshs. 500,000/=* 3. *Special Damages……………………...…….Kshs. 5,530/=* ***Net Award……………………….Kshs. 505,530/=*** 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 06th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Wanjala h/b for Bwonchiri for the Plaintiff Ms. Kirigo for the Defendant C/A: Mr. Rioba