https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/590

**REPUBLIC OF KENYA** **IN THE MAGISTRATE’S COURT AT BUNGOMA** **CMCC NO. 429 OF 2022** DOMINIC WAFULA MBAYA …...……….……………………………..…………....PLAINTIFF =VERSUS= LITTLE SISTERS OF ST. FRANCIS …………………………………..……………DEFENDANT **JUDGEMENT** 1. **Plaintiff’s Pleadings** The plaintiff’s suit is for recovery of both general and special damages for injuries he sustained in a RTA on 28/09/2022. He blamed the defendant for the accident as the registered, possessory owner and insured of motor vehicle Reg. No. KAW 681 E. The accident allegedly occurred on the said date along Bungoma- Webuye Road at Ndengelwa area when the said motor vehicle abruptly obstructed and rammed into him. He particularized the negligence act allegedly committed by the defendant and leading to the accident in para. 4 (a)-(b) of his plaint. He pleaded injuries were; 1. Head injury with brief loss of consciousness 2. Multiple facial bruises and cut wounds. 3. Blunt injury to the left eye with reddening. 4. Blunt injury to the neck. 5. Blunt injury to the chest. 6. Blunt injury to the right leg 7. Blunt injury to the right wrist. He alleged to have incurred expenses in respect to treatment and anticipation of fling of this case as hereunder; 1. Medical report - Kshs. 6,000/= 2. Medical expenses - Kshs. 6,185/= Total = Kshs.12,735/= 1. **Pleadings filed by the defence** Initially, the defendant filed their statement of defense and counter -claim dated 27/02/2023. They subsequently amended the same 25/ 09/2023. He denied liability and averred that he is wrongly sued because he was careful and not negligence in his driving of motor vehicle Reg. No. KAW 691 E. In the alternative, he attributed negligence on the plaintiff and alleged that it was him who was solely and substantially at fault. He provided particulars of the same in para 4 (a)- (v) of his defence statement. In his counter-claim, the defendant sought compensation with a sum of Kshs.84,000 being repair costs and transport expenses together with general damages for loss of user, costs and interest. Subsequently, a reply to the defence and counter-claim dated 20/06/2024 was filed by the plaintiff in response to the defence and counter-claim. The matter proceeded to full hearing where both parties tendered oral and documentary evidence on record. 1. **Plaintiff’s Case** The plaintiff called four witnesses. These were Dr. Joseph Sokobe (PW1), testified and produced a medical report. He confirmed that the plaintiff sustained the injuries pleaded herein. He charged Kshs. 6,000/= for the report which he produced in evidence too. The plaintiff was treated at Bungoma County Referral Hospital as was confirmed by Mr. Elias Doka (PW2) vide the treatment notes he produced in his evidence. A report on the accident was made to Bungoma Police Traffic Base as per the evidence of PC Jackline Ochieng (PW3). She produced a police abstract form as an exhibit. It contained details of motor vehicle Reg. No. KAW 691E and Motor cycle Reg. No. KMFK 416 T as being involved. She admitted that she was not involved in the investigations and never visited the scene. As such, she could not tell how the accident occurred. She confirmed that the driver of motor vehicle Reg. No. KAW 691 E was never charged. It also showed that the same was owned by the defendant. The plaintiff, Dominic Wafula Mbaya was the last to testify as PW4. He adopted his witness statement as his evidence-in-chief. He confirmed the occurrence of the accident and his involvement. He explained that the same occurred when the said motor vehicle approached him from behind as he was was riding on the pedestrian section of the road towards Webuye general direction. Upon overtaking him, the motor vehicle ubruptly swerved onto the pedestrian section and stopped ahead of him without giving any indication or warning. In the process, he rammed into its rear and was thrown off the road. He said that the motor vehicle was also speeding. On cross-examination, he confirmed that he indeed crashed into the motor vehicle from behind. He denied suffering any loss of consciousness but again recanted that denial. He maintained that the driver of the motor vehicle was on the wrong for speeding and suddenly stopped in front of him after he overtook him. 1. **Defence Case** The defendant called two witnesses. PC Isaac Kimani Njuguna testified as DW1. He also confirmed that the accident occurred when the plaintiff’s motor cycle rammed into the rear of the motor vehicle. Although he said that the case was pending under investigation (PUI), he at the same time blamed the plaintiff for the accident. He explained that the rider failed to keep distance. He admitted on cross- examination that he never visited the scene or was not involved in the investigations. Francis Masinde Wakhungu (DW2) was the driver of Motor vehicle Reg. No. KAW 691 E. He adopted his witness statement in his evidence in chief. He testified that on the material day he was driving the motor vehicle going to pick pupils, he heard a loud bang from behind. Upon stopping, he discovered that the plaintiff's motorcycle had collided with its rear. On cross-examination, he denied that he had abruptly stopped after he overtook the plaintiff. He maintained that there was no vehicle ahead of him or oncoming traffic that would have necessitated such a stop. He blamed the plaintiff for failing to maintain a proper lookout and for negligently riding into the rear of the motor vehicle. He said that after police officers visited the scene, took photographs and directed that the motorcycle be taken to Bungoma Police Station. Sister Juliet Wesonga (DW3), the Principal of Mother Kevin Primary School. She also adopted her witness statement and confirmed being notified about the occurrence of the accident. She further confirmed that the motor vehicle registration number KAW 691E was indeed registered under the defendant. Upon being made aware of the accident, she advised their driver to report the matter to the police. She also arranged alternative transport for the pupils and this costed them Kshs. 72,000. They incurred further costs of Kshs.5,000 on panel beating and Kshs.7,000 on replacement of the rear windscreen, making a total of Kshs.84,000, which formed the basis of the counterclaim. 1. **Issues for determination** The following issues were not disputed; * Occurrence of the accident. * Involvement of the plaintiff as rider of motor cycle Reg. No. KMFK 416T and DW2 as the driver of motor vehicle Reg. No. KAW 691E. * Injuries to the plaintiff upon colliding with the motor vehicle Reg. No. KAW 691E from the rear whilst riding motor cycle REG. No. KAW 691E * Owner of motor vehicle Reg. No. KAW 691E by the defendant and the same being driven by their driver, servant who was duly identified in evidence as DW2. Having set out the above, I would frame issues left for determination as follows: - 1. Which party caused the accident either singly or in contribution with the other. 2. Whether the plaintiff is entitled to both general and special damages. 3. Whether the defendant is entitled to any special damages and general damages for loss of user their motor vehicle aforementioned. 4. Who should bear costs of the main suit and also the counter-claim ? 5. **Analysis and Determination** 6. **Liability** The dispute before the court concerns the manner in which the accident occurred and who between the parties should bear responsibility for its occurrence. The burden of proof rests upon the party who alleges. Sections 107, 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya require a party to prove facts upon which he seeks judgment. In ***Embu Public Road Services Ltd v Riimi [1968] EA 22***, the Court held that negligence is never presumed merely because an accident has occurred. A claimant must establish negligence on a balance of probabilities. PW4 testified that he was lawfully riding his motorcycle on the pedestrian section of the road when the defendant's motor approached from behind, overtook him and immediately swerved to the left before coming to an abrupt stop without warning. According to him, those sudden maneuvers obstructed his path, leading to the rear collision. But the driver of defendant’s motor vehicle, DW1 disputed this account. He testified that he neither overtook nor stopped abruptly. His evidence the plaintiff rammed into him from behind. He was alerted of it by a loud bang. Upon stopping, he discovered that the plaintiff had collided with the motor vehicle from the rear. His take was that the plaintiff was to blame because he failed to maintain a proper lookout and or distance. By his own account, the plaintiff admitted that his motorcycle rammed the rear of the defendant's motor vehicle. But added that, this occurred because the said driver was driving at a high speed before he abruptly stopped in front of him. The evidence adduced by the parties presents two conflicting versions of the occurrence of the accident. Neither party called the investigating officer to shed light on the circumstances surrounding the collision. The police officers who were called were neither investigated the accident nor visited the scene upon its occurrence. Their evidence on the matter was therefore of less or no value with regard to occurrence of the accident. Of worth noting is that although one of those officers claimed that the plaintiff was to blame, both attested to the fact that the DW2 was never charged with any traffic offence. In fact, it did emerge from them, that is, DW1 that the matter is still PUI. Similarly, no sketch map, scene photographs or investigation report were produced to corroborate the two conflicting accounts given by the parties. Going by the account of the defendant’s driver, the court would find that any motorist travelling behind another vehicle bears a duty to keep a sufficient distance to enable him to halt safely in case of an emergency such as an abrupt slow down or stopping by the motor vehicle ahead of him. On the flip side, overtaking must be done in manner that does not endanger the life of other motorists who in this case, would be the motorist being overtaken. Returning to the near side too soon upon completing the overtaking is not safe. This is because it may occasion a collision with the motorist immediately behind it. However, the law also places a duty upon the motorist being overtaken to slow down to allow safe overtaking. Rule 73 of the Traffic Rules is clear on the duty placed on an overtaking motorist and the one being overtaken. There was no indication by the plaintiff that he ever slowed down when he saw the defendant’s driver overtaking him to allow him safe passage. The court has upon considering the two scenarios above weighed the samewithin the context of the decision in ***Lakhamshi v Attorney General [1971] EA 118*** *where* the Court observed that where the evidence does not clearly establish sole responsibility, liability may properly be apportioned according to each party's degree of blameworthiness. In the case of Hussein Omar -v- Lento Agencies [2006] KECA 388(KLR), the court apportioned liability equally to blame where it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides concerning who was to blame for the accident. it emphasized that ***“it has been held in our jurisdiction and and also other jurisdictions that that if there is no concrete evidence to determine who between two drivers, both should be held equally to blame.’’*** Duly guided by that decision, this court would apportion liability against the parties in the ratio of 50:50. 1. **Assessment of damages** The principles governing the assessment of general damages are now settled. Comparable injuries should, as far as possible, attract comparable awards while considering the passage of time, inflation and the peculiar circumstances of each case- *see* ***Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR*** From the medical evidence tendered through PW1 and PW2, it was established that the plaintiff sustained multiple soft tissue injuries. However, the nature of those injuries was in contention. According to the defence, the plaintiff’s true injuries should be taken to be conform to the documents which were produced by PW2. In those documents, the plaintiff’s injuries were summarized as comprising a cut wound on the left eye lid, bruise on the forehead, headaches and chest pain. The rest of the injuries which were included in the medical report of PW1 including loss of consciousness were not mentioned in the treatment notes or P3 form. The same are unsubstantiated and so they shall be discounted off. A figure of Kshs. 500,000/= was proposed by the plaintiff as general damages. They relied on the case of ***Caroline Indiasi Mwonyonyo -v- Kenya Bus Service Ltd [2012] eKLR,*** where a sum of Kshs. 350,000/= was awarded for soft tissue injuries. The injuries comprised both soft tissue injuries and a dislocation of the right knee. In a case comparable to the above of ***Thuo and another vs Nanzala [2024] KEHC 2978 (KLR)*** a sumof Ksh 400,000 was awarded as general damages for dislocation of the right elbow joint and blunt injury to the anterior chest wall. This means that a sum of Kshs. 500,000/= would be high considering that the plaintiff has no dislocation or fracture. Coming now to the view of the defendant, the sum proposed in their submissions is Kshs. 50,000/=. They noted that the plaintiff had already recovered with no permanent disability. They relied on the decision in ***Edward Mutevu Maithya & Anor -v- Edwin Nyamweya (2022) eKLR*** wherein the Appellate court set aside the trial court’s award of Kshs. 500,000 as general damages to the Respondent and substituted the same with a sum of Kshs.100,000 as reasonable compensation. The award was in respect of cut wounds on the scalp, bruises the back, bruises on the right upper limb; and bruises on the left lower limb. The other case they relied upon was ***Adembesa & Anor -v- Gweno (Civil Appeal E192 OF 2023) [2024] KEHC 5379 (KLR) (17 MAY 2024) (Judgment)*** wherein, the Appeal court set aside the trial’s court award to the Respondent of Kshs. 1,200,000 in general damages and substituted the same with Kshs. 120,000 for having sustained injuries in the nature of an injury to the head, chest injury, neck injury, bruises on shoulders, bruises on both knees and bruises both legs. It is worth noting that the injuries sustained by the Respondents I do find that the defence authorities to be more comparable to the present case. But because they are of 2020 and 2022, there would be need to factor in inflation over the past 3-4 years. That means that the amount to be awarded for similar injuries at present, must be above 100,000/=. All factors considered, I would in my discretion award Kshs. 135,000/= to the plaintiff as general damages for his proven injuries. The defendant shall shoulder only half thereof. **H. Special damages** The defence submitted quite correctly that special damages must be specifically pleaded and strictly proved per the decision in ***Bonham Carter -v- Hyde Park Hotel Ltd (1948) 64 T.R.177.*** The went on to acknowledge that all specials pleaded by the plaintiff were indeed proved to the tune ofKshs.12,735/=. The same is awarded as prayed. 1. **Proof of the counter-claim** The defendant prayed for special damages of Kshs. 84.000/= for repairs to their motor vehicle and hire charges for alternative transport for their pupils. The Defendant submitted that their counter-claim were proven by way of receipts. Based on the receipts produced by DW1, the court finds that special damages of Kshs. 72,000 +5000= Kshs. 77,000/= was proved. Having found that the plaintiff was liable to settle ½ the above sum being that, he has been found 50% liable for the accident. However, the claim for loss of user is untenable because, they have already succeeded to recover the motor hire charges for the duration when the suit motor vehicle was not in use. I find this prayer to be a duplication and dismiss it. 1. **Disposition** In the result, judgment is hereby entered for the plaintiff’s suit as follows; a. Liability – each party to bear 50% blame in respect to causation of the accident. b. General damages for pain, suffering and loss of amenities are assessed at Kshs. 135,000/= awarded to the plaintiff. c. Special damages of Kshs.12,735 are awarded to the plaintiff. Total GD + SD = Kshs. 147,735 Less 50% = Kshs. 73,867.50 d. Each party to bear its own costs. Counter- Claim 1. Liability – each party to bear 50% on causation of the accident. 2. Special damages- Kshs. 77,000/= for repair of suit motor vehicle and motor vehicle hire charges. Less 50% = Kshs. 38,500 1. Each party to bear its own costs. Net award to the plaintiff upon set-off = 73,867.50- 38,500 = Kshs. 40,367.50 only. Dated and delivered in open court this 20th day of August 2026 In the presence of; Plaintiff – N/A for Mr. Mukisu Defendant- N/A for Mr. Mose/ Mr. Wamalwa S **HON. R.B.N. MALOBA(MS)** **SENIOR PRINCIPAL MAGISTRATE**