https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/750

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E144 OF 2025** **NJUHIGA FRANCIS WAWERU…………..…………..………….…………….PLAINTIFF** **VERSUS** **KYOGA HAULIERS (K) LTD…………….……………….…………..……1ST DEFENDANT** **SILKSTONE ENTERPRISES LIMITED…………………………………..2ND DEFENDANT** **JUDGMENT** 1. Njuhiga Francis Waweru (“the Plaintiff”) instituted this suit through a Plaint dated 02nd April 2025, seeking judgment against the Defendants jointly and severally for: 2. *General damages for pain and suffering* 3. *Special damages of Kshs. 6,550/=* 4. *Costs of this suit* 5. *Interest on (a) and (b) above* 6. The Plaintiff pleaded that on 31st December 2024 , while he was lawfully driving motor vehicle registration number KDB 040 V/ZG 4669 (“the Plaintiff’s motor vehicle”) along Malaba – Bungoma road at Zerozero area, the Defendants’ agent negligently drove the Defendants’ motor vehicle registration number KBY 494 X/ZE 6766 (“the Defendants’ motor vehicle”) causing it to ram into the Plaintiff’s motor vehicle thereby causing the Plaintiff to sustain bodily injuries which he seeks compensation. 7. The Plaintiff further averred that the accident was caused by the Defendants and the Defendants’ drivers negligent acts and omissions enumerated in paragraph 6 of the Plaint. 8. The Defendants entered appearance and filed a Statement of Defence putting the Plaintiff to strict proof of the averments in his Plaint. They pleaded in the alternative that if if the accident herein occurred then the same was solely caused or substantially contributed by the Plaintiff’s negligent acts and omissions pleaded in their Statement of Defence. The Defendants urged this court to dismiss the Plaintiff’s suit with costs. 9. The foregoing necessitated this court to set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 Dr. Joseph Sokobe** produced the Plaintiff’s medical report dated 24th February 2025 showing that the accident caused the Plaintiff to sustain blunt injuries to the forehead, parietal scalp, the neck and the right shoulder. He assessed the degree of injury sustained by the Plaintiff as harm. He also produced a receipt showing that he charged Kshs. 6,000/= for the Plaintiff’s medical report. 2. **PW2 Elias Adoka** is a Clinical Officer at Bungoma County Referral Hospital. He produced the Plaintiff’s P3 form and outpatient card all dated 31st December 2024, showing that the Plaintiff sustained the injuries pleaded in paragraph 8 of the Plaint. He also produced a receipt for Kshs. 2,000/= for the Plaintiff’s medical expenses. 3. In cross-examination, he stated that the Plaintiff sustained soft tissue injuries which he must have recovered from by now. 4. **PW3 No. 81XXX6 PC (W) Jackline Were** of Bungoma Police Station traffic produced the police abstract dated 31st December 2024 showing that the accident herein occurred and that the same was reported at Bungoma Police Station vide OB. No. 78/31/04/2024. 5. She conceded in cross-examination that she was not the accident’s investigating officer hence she could not tell how the accident occurred. 6. **PW4 Njuhiga Francis Waweru** adopted his witness statement dated 02nd April 2025 as his evidence in chief. His testimony was that the Defendants’ motor vehicle which was being at an excessive speed from Malaba general direction headed to Bungoma general direction lost control at Zerozero area to the service lane where it rammed into the Plaintiff’s motor vehicle driver’s door pushing it to land in a roadside ditch. He added that the impact caused him to sustain the bodily injuries pleaded in his Plaint. 7. He produced the documents in the Plaintiff’s list of documents not produced by the other Plaintiff’s witnesses as exhibits. 8. He denied ramming into the Defendants’ motor vehicle. He reiterated that the accident occurred after he had joined the Bungoma – Malaba highway from Chwele general direction and that he had looked out for the other motor vehicles before joining the Bungoma – Malaba highway. **Defendants’ Case** 1. **DW1 Milton Saruyani Barasa** adopted his witness statement dated 17th September 2025 as his evidence in chief. He recalled that the accident occurred when the Plaintiff’s motor vehicle which was being driven from Chwele general direction to join Bungoma – Malaba highway rammed into the Defendants’ motor vehicle. 2. In cross-examination, he stated that the accident was not as a result of a head on collision. He maintained that the Plaintiff was to be blamed for causing the accident since he failed to watch his right-hand side before joining the highway and rammed into the Defendants’ motor vehicle. 3. **DW2 No. 15XXX5 PC John Kamau** of Bungoma Police Station produced the OB extract showing the entry made vide OB. No. 78/31/12/2024 by the accident’s investigating officer one PC Kimani. 4. He stated in cross-examination that the point of impact was in a feeder road called Chwele – Bungoma road on the left-hand side as one comes from the Malaba general direction. He could not tell if the motor vehicles involved in the accident were inspected after the accident. **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. Having fully appreciated the written submissions on record, this court elects not to regurgitate them here but only to highlight the key points raised therein. 2. There is no dispute that the accident herein occurred when the Plaintiff was driving the Plaintiff’s motor vehicle while DW1 was driving the Defendants’ motor vehicle. 3. It is also common ground that DW1 was the Defendants’ agent at the time of the accident thus in the event this court finds DW1 liable for the occurrence of the accident, the Defendants will be vicariously liable for DW1’s negligent acts or omissions. 4. The parties herein are also in agreement that the accident herein caused the Plaintiff to sustain bodily injuries. 5. The foregoing inclines this court to find and hold that the issues which commend to this court for determination are liability and quantum. **Liability** 1. The Plaintiff blamed DW1 for ramming into the Plaintiff’s motor vehicle. DW1 on the other hand blamed the Plaintiff for ramming into the Defendants’ motor vehicle. 2. Both the Plaintiff and the Defendant called police officers who did not investigate the circumstances under which the accident occurred to corroborate their respective oral testimonies on the circumstances under which the accident occurred. 3. PW3 conceded that she could not tell the circumstances under which the accident occurred. DW2 on his part blamed the Plaintiff for causing the accident based on the contents of the OB entry made by the accident’s investigating officer after visiting the scene. This begs the question of the evidential value of the evidence led by DW2 on the circumstances under which the accident occurred. This question was answered by Majanja J (as he then was) in **Dikir & another v Kimary (Civil Appeal 316 of 2013) [2022] KEHC 12733 (KLR) (Civ)**as follows: *“Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”(Emphasis added)* 1. The authority above is abundantly clear that any information in an OB extract on the circumstances under which an accident occurred if not produced by the accident’s investigating officer remains hearsay evidence. Therefore, the contents of the OB extract produced by DW2 cannot be used to determine liability in this case. 2. The Defendants also submitted that the investigations report dated 13th May 2025 by Samba Services corroborated their case that the Plaintiff was to blame for causing the accident. 3. However, the record shows that the said investigations report was only marked for identification by DW1. This begs the question of whether documents marked for identification form part of the court’s record. This question was answered by the Court of Appeal in **Mwige v Kiguta & 2 others (Civil Appeal 140 of 2008) [2015] KECA 334 (KLR),** where the court held thus: *‘In the instant case, we are of the view that the failure or omission by the respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondents’ case. The documents did not become exhibits before the trial court; they had simply been marked for identification and they have no evidential weight. The record shows that the trial court relied on the document “MFI 2” that was marked for identification in its analysis of the evidence and determination of the dispute before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.’* 1. The authority above leaves no doubt in this court’s mind that the investigations report by Samba Services which was only marked for identification but not produced as an exhibit is not part of the court record to be considered by this court in making any finding in this case. 2. Flowing from the above, it follows that the only evidence on record on the circumstances under which the accident occurred is the contradictory evidence adduced by the Plaintiff and DW1. They simply blamed each other for causing the accident. Their only point of convergence is that the accident occurred as a result of a collision between the Plaintiff’s motor vehicle and the Defendants’ motor vehicle. 3. It is always desirable in cases such as this where there was a collision between two motor vehicles and parties are blaming each other for causing the accident for the party who seeks the court to make a finding in their favour to place before the court sketch maps, inspection reports, the accident’s investigating officer’s testimony, and any other eyewitness account on how this accident occurred for the court to have a clear picture of how the accident occurred. Such evidence helps the court to determine the point of impact thus making it easy for the court to apportion liability between two drivers. 4. In the absence of the evidence alluded to in paragraph 31, this court was left at sea on how to apportion liability between the parties herein herein based on the contradictory oral testimony by the Plaintiff and DW2. 5. Be that as it may, accidents do not just occur; they are caused, save for inevitable accidents or accidents caused by an act of God. There is no indication that the accident herein was inevitable or that it was caused by an act of God. Therefore, there must be a person or persons responsible for the occurrence of this accident. 6. Given that the evidence on record is barely adequate for this court to apportion liability between the Plaintiff and the Defendants, this court finds inspiration in **Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd [1984] KECA 14 (KLR),** where it was held that: *“The trial judge rightly applied to the facts before him the relevant law enunciated by Spry, V P in Lakhamshi v Attorney General, (1971) E A 118, 120 for such cases which - It is now settled law in East Africa that where the evidence relating to a traffic is insufficient to establish the negligence of any party, the court must hold the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if Negligence on his part cannot properly be inferred from the circumstances of the accident.”* 1. It is against this backdrop that this court finds the Plaintiff and the Defendants equally to blame for the occurrence of the accident. **Quantum of Damages** 1. **General Damages for pain and suffering** 2. The Plaintiff’s uncontroverted medical evidence on record corroborated the Plaintiff’s averments in paragraph 8 of his Plaint on the injuries he suffered as a result of the accident. 3. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved on a balance of probabilities that, arising from the accident herein, he sustained blunt injuries to the forehead, parietal scalp, the neck and the right shoulder which injuries were assessed as harm with no resultant incapacity. 4. In determining the quantum of damages herein, this court is guided by the holding in **Stanley Maore vs Geoffrey Mwenda [2004] eKLR**, where the Court of Appeal stated as follows: *“Having so said, 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. This court has given due regard to the parties’ authorities on quantum. 2. The Plaintiff submitted that an award of Kshs. 350,000/= was sufficient under this head by placing reliance on authorities where Plaintiffs sustained more severe injuries than the ones sustained by the Plaintiff herein. Those authorities are not applicable in this case. 3. The Defendants urged this court to award the Plaintiff general damages of Kshs. 120,000/= by placing reliance on authorities where general damages of Kshs. 180,000/= and Kshs. 120,000/= were made for multiple soft tissue injuries in 2025 and 2022 respectively. It is clear from the said authorities cited by the Defendants that there is no legal basis for the Plaintiff’s submission that an award of Kshs. 120,000/= should be made under this head. 4. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in 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. 5. 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. 6. 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. 7. The authorities above show that awards of between Kshs. 150,000/= - Kshs. 250,000/= are usually made for moderate multiple soft tissue injuries almost similar to the ones sustained by the Plaintiff in this case. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. 8. **Special Damages** 9. The Plaintiff pleaded for special damages of Kshs. 6,550/= in paragraph 8 of his Plaint. 10. The receipt for Kshs. 6,000/= for the medical report issued by Dr. Sokobe, and the NTSA receipt for Kshs. 550/= proved the pleaded special damages of Kshs. 6,550/=. 11. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 6,550/=. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms:- 2. *Liability………………………………50%:50%* 3. *General damages…………………...Kshs. 200,000/=* 4. *Special Damages…………………….Kshs. 6,550/=* *Grand Award……………………..Kshs. 206,550/=* *Less 50%* ***Net Award…………………………Kshs. 103,225/=*** 1. The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full, while 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 subject to the ratio of liability herein. 3. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma, this 21st day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Angode for the Plaintiff Mr. Machimbo for the Defendants C/A: Mr. Rioba