https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/174

Mkonyo v Mwajoto (Civil Case E1583 of 2024) [2026] KEMC 174 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 174 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E1583 of 2024 EM Mwamuye, SRM June 25, 2026 Between Mwanatumu Chiguba Mkonyo Plaintiff and Ramadhan Mwajoto Defendant Judgment Introduction 1.The Plaintiff, Mwanatumu Chiguba Mkonyo, instituted this suit against the Defendant seeking general damages, special damages, costs and interest arising from a road traffic accident that occurred on 28th July 2024 involving motor vehicle registration number KBG 485A Nissan Matatu. 2.The Plaintiff contended that she was a fare-paying passenger in the said vehicle when the driver negligently lost control and collided with a road divider, causing her injuries. The Defendant denied ownership of the motor vehicle, denied occurrence of the accident, denied liability and denied that the Plaintiff sustained the alleged injuries as a result of any accident involving him. 3.The Plaintiff's case was heard on 4th June 2025 while the Defendant's case was heard on 1st August 2025. Both parties testified and thereafter filed written submissions. Issues for Determination 4.Having considered the pleadings, evidence and submissions on record, the issues arising for determination are:i.Whether the Plaintiff proved that the Defendant was the registered owner, beneficial owner or person legally responsible for motor vehicle registration number KBG 485A.ii.Whether the Plaintiff proved liability against the Defendant.iii.Whether the Plaintiff sustained injuries arising from the accident.iv.Whether the Plaintiff is entitled to damages.v.Who should bear costs. Analysis Whether the Defendant was the Owner or Person Legally Responsible for Motor Vehicle KBG 485A 5.This is the central issue in the suit. The Plaintiff pleaded that the Defendant was the registered and/or beneficial owner of motor vehicle registration number KBG 485A and that the vehicle was being driven by the Defendant's servant, employee and/or agent. 6.The Defendant expressly denied ownership in both his Defence and witness statement. 7.The Plaintiff relied principally on: The Police Abstract. The evidence of PW3, the police officer. The assertion that the Defendant was the beneficial owner. Authorities discussing beneficial ownership. 8.The Defendant on the other hand produced an official NTSA Copy of Records dated 1st August 2025 which showed that as at the date of search, motor vehicle KBG 485A was registered in the name of Edward Shukurani Ngolo. 9.The Plaintiff relied heavily on the decision in Peter v Lucy Wambua Ngaku & Another [2021] eKLR where the court held that a logbook is not the only means of proving ownership and that beneficial ownership may be established through other evidence. 10.I agree entirely with that proposition. Ownership of a motor vehicle may indeed be proved through evidence other than a logbook. 11.However, the difficulty facing the Plaintiff is that apart from the Police Abstract, there was no evidence demonstrating beneficial ownership by the Defendant. No sale agreement was produced. No insurance certificate in the Defendant's name was produced in evidence. No witness testified regarding purchase, possession, operation, management or control of the vehicle by the Defendant. No evidence was adduced showing that the Defendant employed the driver. No evidence was tendered showing that the Defendant exercised control over the vehicle. The police officer merely stated that the Defendant was reflected in the Police Abstract as owner. The source of that information was not disclosed. 12.The Court of Appeal and superior courts have consistently held that while a police abstract may be evidence of ownership, it is not conclusive proof where ownership is specifically challenged and contrary documentary evidence is produced. 13.In the present case ownership was expressly denied from the outset and the Defendant produced an NTSA search showing registration in the name of a third party. 14.The Plaintiff did not rebut that evidence. 15.Consequently, although the Court accepts that an accident occurred involving KBG 485A, the Plaintiff failed to prove on a balance of probabilities that the Defendant was the registered owner, beneficial owner or person legally responsible for the vehicle. 16.I therefore find that ownership was not established against the Defendant. Whether Liability Was Proved Against the Defendant 17.The Plaintiff's evidence that the accident occurred was corroborated by: Treatment notes. P3 Form. Police Abstract. Medical Report. Her own testimony. The evidence demonstrates that the accident vehicle lost control and collided with a road divider. 18.There was no evidence suggesting contributory negligence on the part of the Plaintiff. Being a fare-paying passenger, the Plaintiff had no control over the manner in which the vehicle was being driven. 19.Had ownership and agency been established against the Defendant, this Court would have apportioned liability at 100% against the driver of KBG 485A and vicariously against the person legally responsible for the vehicle. 20.However, negligence alone does not automatically impose liability on a person against whom ownership and agency have not been proved. 21.Since the Plaintiff failed to prove that the Defendant was the owner, beneficial owner or principal of the driver, liability cannot attach to the Defendant. 22.Accordingly, I find that liability against the Defendant has not been proved. Whether the Plaintiff Sustained Injuries 23.The medical evidence was consistent and uncontroverted. The Plaintiff sustained: Soft tissue injuries to the head. Soft tissue injuries to the eye. Soft tissue injuries to the chest/ribs. Injury to the back/lumbar spine. Injury to the right leg. 24.The P3 Form classified the injuries as harm. Dr. John W. E. Olyam examined the Plaintiff and concluded that: She sustained soft tissue injuries to the chest and lumbar spine. She had improved. Full recovery was expected within four weeks. No permanent disability was anticipated. 25.The Court therefore finds that the Plaintiff sustained genuine injuries arising from the accident. Quantum of Damages 26.Although liability against the Defendant has not been established, the Court will assess damages it would have awarded had liability been proved. Comparison of Injuries with Authorities Relied Upon 27.Plaintiff's Authorities- Michael Onyando Onyango v Michael Obura [2024] KEHC 11506 (KLR). In that case the claimant sustained multiple soft tissue injuries involving: Deep cut wounds. Swellings. Tenderness to several parts of the body. Psychological trauma. The High Court reduced an award of Kshs.460,000/= to Kshs.180,000/=. The injuries in the present case are less severe because: No deep cuts were sustained. No suturing was required. No permanent scarring resulted. No psychological injury was proved. No permanent incapacity was established. The Plaintiff's injuries were therefore materially less serious than those in Michael Onyando Onyango. 28.Peter v Lucy Wambua Ngaku & Another- This authority dealt principally with ownership and beneficial ownership of motor vehicles and not quantum. It therefore offers little assistance on assessment of damages. 29.Defendant's Authority- Shalimar Flowers Ltd v Noah Muniango Matianyi [2011] Eklr-The claimant sustained: Deep cut wound to the left wrist joint. Blunt injury to the anterior chest wall. The High Court reduced damages to Kshs.50,000/=. The Plaintiff herein suffered: Head injury. Eye injury. Chest injury. Back injury. Right leg injury. 30.Although classified as soft tissue injuries, they affected more anatomical regions than the injuries in Shalimar Flowers. The present injuries were therefore more extensive than those in Shalimar Flowers. Consequently, the Defendant's proposal of Kshs.60,000/= is too low. 31.Taking into account: The nature of the injuries. The fact that all injuries were soft tissue. Absence of fractures. Absence of permanent disability. Passage of time and inflation. 32.I would have awarded Kshs. 180,000/= for pain, suffering and loss of amenities. This figure is consistent with recent awards for comparable soft tissue injuries and appropriately reflects the injuries proved. Special Damages 33.The Plaintiff pleaded and produced evidence supporting:Item AmountMedical report Kshs. 2,500X-ray charges Kshs. 1,600Hospital expenses Kshs. 1,380Police Abstract Kshs. 200Total Kshs. 5,680 34.The special damages were specifically pleaded and supported by receipts. Had liability been established, the Court would have awarded Kshs. 5,680/=. Disposition 35.The Court finds that:a.The Plaintiff proved that she was involved in a road traffic accident on 28th July 2024.b.The Plaintiff proved that she sustained the injuries pleaded.c.The Plaintiff proved negligence on the part of the driver of motor vehicle registration number KBG 485A.d.However, the Plaintiff failed to prove on a balance of probabilities that the Defendant was the registered owner, beneficial owner, employer, principal or person legally responsible for motor vehicle registration number KBG 485A.e.Consequently, liability cannot attach to the Defendant. Orders 36.The Plaintiff's suit against the Defendant is hereby dismissed. In view of the fact that the Plaintiff was genuinely injured in the accident but sued the wrong party, each party shall bear its own costs. For avoidance of doubt, had liability been established, the Court would have awarded:i.General damages: Kshs. 180,000/=ii.Special damages: Kshs. 5,680/=It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE