https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/797

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E287 OF 2025** **NANCY UNDISA……..………………………………………..……...……………PLAINTIFF** **VERSUS** **PIUS KHAOYA & ANOTHER……………………….……….……………………………………DEFENDANTS** **JUDGMENT** 1. The Plaintiff moved this court vide a Plaint dated 12th June 2025, where the Plaintiff prayed for judgment against the Defendants jointly and severally for:- 2. *General damages for pain and suffering* 3. *Special damages of Kshs. 18,750/=* 4. *Costs of this suit* 5. *Interest on (a), (b), and (c) above* 6. *Any other relief this Honourable Court may deem just and fit to grant* 7. The Plaintiff averred that the cause of action arose on 22nd September 2024 when she was a pillion passenger on motorcycle registration number KMDG 259 R (“the motorcycle”) on 22nd September 2024 along Bungoma – Kanduyi road near Blue Waves area when the motorcycle was hit by the 2nd Defendant’s motor vehicle registration number KAS 395 E (“the motor vehicle”), which caused her to sustain severe injuries, loss and damage, hence this suit. 8. The Plaintiff further averred that the accident was caused by the Defendants’ negligent acts and omissions as set out in paragraph 5 of the Plaint. 9. On the Defendants' part, they entered appearance and filed a joint Statement of Defence dated 17th July 2025 denying all the averments in the Plaint save for the parties’ descriptive averments and this court’s jurisdiction to hear and determine this matter. 10. The Defendants pleaded in the alternative that, if at all, the accident herein occurred, then the same was caused or substantially contributed by the Plaintiff’s and the motorcycle rider’s negligent acts enumerated in paragraph 7 of their Statement of Defence. The Defendants urged this court to dismiss the Plaintiff’s case with costs. 11. The Plaintiff responded by filing a Reply to the Statement of Defence dated 13th August 2025, reiterating his averments in the Plaint. 12. It is against this background that this suit was set down for hearing for the parties to prove the averments in their respective pleadings on a balance of probabilities. 13. The evidence adduced before this court during the hearing is summarized below. **EVIDENCE** **Plaintiff’s case** 1. **PW1 No. 76XXX PC Isaac Kimani Njuguna** of Bungoma Police Station investigated the circumstances under which the accident occurred. He confirmed that the accident herein occurred and that the same was reported at Bungoma Police Station. 2. His testimony was that the accident occurred when the motorcycle and the motor vehicle were headed to Kanduyi general direction from Bungoma general direction only for the motor vehicle to lose control and hit the motor cycle from behind. 3. He produced the abstract dated 18th March 2025 as an exhibit. 4. In cross-examination, he stated that he visited the scene of the accident when he found the motor vehicle and the debris arising from the accident on the left side of the road as one faces Kanduyi general direction. 5. **PW2 Nancy Undisa** adopted her witness statement dated 12th June 2025 as her evidence in chief. She testified that the accident occurred when the motorcycle he was riding and the motor vehicle were headed towards Kanduyi general direction, only for the motor vehicle to hit the motorcycle she had boarded from behind. 6. She produced all the documents listed in his list of documents herein as exhibits, save for the police abstract. 7. She stated in cross-examination that she saw the motorcycle after the accident, and that the accident impact caused her and the motorcycle rider to land in a culvert near Bumula Hotel. **Defendants’ Case** 1. The Defendants did not call any witnesses. In the circumstances, the averments in their joint Statement of Defence remain mere allegations which this court will not rely on in determining this case in line with the holding in **Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya [2020] eKLR,** where the court stated thus: *“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.”* **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 2. The uncontroverted evidence on record shows that the accident herein occurred, causing the Plaintiff to sustain bodily injuries. The evidence on record also proved on a balance of probabilities that the 2nd Defendant owned the motor vehicle at the time of the accident, while the 1st Defendant was the said motor vehicle’s driver at the time of the accident. 3. There is also no dispute that the 1st Defendant was the 2nd Defendant’s authorized agent at the time of the accident. Therefore, in the event this court finds the 1st Defendant negligent for the accident, the 2nd Defendant will be vicariously liable for the 1st Defendant’s negligent acts and omissions. 4. Given the above, the issues that commend to this court for determination are liability and quantum. **Liability** 1. PW2’s testimony was that the accident occurred when the motor vehicle lost control and rammed into the motorcycle from behind. This evidence on the circumstances under which the accident occurred was corroborated by PW1’s (the accident’s investigating officer) testimony. 2. The Plaintiff witnessed the accident; therefore, her evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 3. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 4. In this jurisdiction, direct evidence by a person involved in an accident on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see **Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)).** 5. The Plaintiff’s uncontroverted direct evidence on the circumstances under which the accident occurred is that the motor vehicle hit the motorcycle she had boarded from behind, thereby causing her to sustain severe bodily injuries. This begs the question of whether such evidence was sufficient to establish negligence by the Defendants. 6. Musyoki , J, in **Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR)** answered the question above as follows:- *A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held 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 on the burden om the appellant to prove that the collision was not due to his negligence’* 1. Guided by the authority above, it follows that the Plaintiff’s direct uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence against the Defendants. 2. In any event, it is also not lost to this court that the Plaintiff, who was only a pillion passenger on the motorcycle, was neither in control of the motorcycle she had boarded nor the motor vehicle. Furthermore, there is no evidence on record to prove, on a balance of probabilities, that the Plaintiff was negligent at the time of the accident. 3. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident as held in **Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR,** thu; *“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 two drivers owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. That duty of care was breached when the accident occurred, causing multiple soft tissue injuries to the Plaintiff. 2. The Plaintiff having established a prima facie case of negligence against the Defendants, it was incumbent upon the Defendants to dislodge the prima facie case of negligence through evidence. The Defendants did not do so. 3. The Defendants deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 4. In **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR,** the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: *“ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:* *‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’* *Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”* 1. In the circumstances, it follows that the failure by the Defendants to adduce evidence on the circumstances under which the accident occurred only leads to the inevitable conclusion that had the Defendants led evidence on the circumstances under which the accident occurred, that evidence would have been adverse to their case. 2. The foregoing does not in any way mean that this court has shifted the burden of proof to the Plaintiff. This simply means that upon the Plaintiff establishing a prima facie case of negligence against the Defendants, the evidential burden shifted to the Defendants to dislodge the prima facie case of negligence established against them. 3. The upshot of the above is that this court finds the Defendants jointly and severally 100% liable for the occurrence of the accident. **Quantum** 1. **General Damages for Pain and Suffering** 2. The Plaintiff pleaded in paragraph 7 of his Plaint that the accident caused her to sustain blunt injuries to the chest, back, left knee, left leg, and left ankle, as well as bruises. 3. The uncontroverted Plaintiff’s medical evidence contained in Dr. Sokobe’s medical report dated 22nd May 2025, and the P3 form dated 18th March 2025 proved on a balance of probabilities that the Plaintiff sustained the injuries pleaded in paragraph 7 of her Plaint. 4. In the circumstances, this court finds and holds that the Plaintiff sustained blunt injuries to the chest, back, left knee, left leg, and left ankle, as well as bruises as a result of the accident herein. 5. The law in this jurisdiction that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in **Stanley Maore vs Geoffrey Mwenda (2004) eKLR,** as follows: - *“...we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases.”* 1. Whereas the Plaintiff filed their written submissions, the Defendants did not. This court has given due regard to the written submissions on record on quantum. 2. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR),** where the court made an award of Kshs. 150,000/= for multiple soft tissue injuries, including a deep cut on the forehead and a blunt injury to the right knee. 3. In **Oloo v Arika & another (Civil Appeal E080 of 2024) [2026] KEHC 2889 (KLR),** the court made an award of Kshs. 150,000/= for a head injury, left and right leg injury, superficial bruises to both knees, face, and scalp, chest injury, soft tissue injuries on the fingers, bruises, and lacerations on various parts of the body. 4. Lastly, in **Quick Shuttle Sacco v Joel & another (Civil Appeal E131 of 2023) [2026] KEHC 1573 (KLR),** the court upheld an award of Kshs. 250,000/= for moderate multiple soft tissue injuries. 5. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 250,000/= are usually made for moderate multiple soft tissue injuries. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. **Special Damages** 1. The Plaintiff pleaded in paragraph 7 of his Plaint for Special Damages of Kshs. 18,750/=. 2. The receipt for the medical report for Kshs. 6,000/= and the receipt for the copy of records from NTSA for Kshs. 550/= proved Special Damages of Kshs. 6,550/=, and the same is awarded. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: - 2. *Liability………………………………………100%* 3. *General Damages…………………...………Kshs. 200,000/=* 4. *Special Damages……………………...…….Kshs. 6,550/=* ***Total Award……………………..Kshs. 206,550/=*** 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 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Chebet for the Plaintiff Mr. Bosire for the Defendants C/A: Mr. Rioba