https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/167

Mukhwana v Mohammed & another (Civil Suit E297 of 2023) [2026] KEMC 167 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 167 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Suit E297 of 2023 EM Mwamuye, SRM June 25, 2026 Between Oliver Juma Mukhwana Plaintiff and Iddi Mohammed 1st Defendant Car & General (Trading) Limited 2nd Defendant Judgment 1.The Plaintiff instituted this suit through a Plaint dated 16th March 2023 seeking general damages, special damages, future medical expenses, costs and interest arising from a road traffic accident that occurred on 30th January 2023 along Mwembe Tayari Road in Mombasa. 2.The Plaintiff pleaded that while lawfully crossing the road near Tawakal Bus Booking Office, he was knocked down by motor vehicle registration number KTWB 231K Piaggio Tuk Tuk, thereby sustaining severe bodily injuries. 3.The 1st Defendant filed a defence denying liability but failed to participate in the hearing and his case was subsequently closed by the court on 5th November 2025. 4.The 2nd Defendant filed a defence denying ownership and liability and contending that it had sold the subject vehicle to First Gulf Gas Distributors Limited in July 2017 and had therefore parted with possession and control of the vehicle prior to the accident. 5.Third Party proceedings were commenced by the 2nd Defendant against First Gulf Gas Distributors Limited and judgment against the Third Party was endorsed as an order of the court on 8th October 2024. 6.The matter proceeded for hearing on 27th May 2025 when the Plaintiff called two witnesses and on 16th March 2026 when the 2nd Defendant called one witness. Plaintiff's Case 7.PW1, Corporal Joshua Muchesia, testified on behalf of the investigating officer who had since been transferred. He produced the police records relating to the accident and confirmed that the accident involved motor vehicle registration number KTWB 231K. 8.PW2, the Plaintiff, Oliver Juma Mukhwana, testified that on 30th January 2023 he was walking along Mwembe Tayari Road and was crossing the road at a zebra crossing near Tawakal Bus Booking Office when he was knocked down by the subject Tuk Tuk. 9.He testified that the vehicle emerged suddenly and struck him on the right side causing serious injuries. 10.The Plaintiff produced: Treatment notes from Coast General Teaching and Referral Hospital. P3 Form. Medical report by Dr. Darius Kiema. Hospital invoices and receipts. NTSA search. Demand notices and statutory notice. Receipts for special damages. 11.The medical records show that the Plaintiff was admitted at Coast General Teaching and Referral Hospital from 30th January 2023 to 8th February 2023. 12.The diagnosis was: Comminuted distal femur fracture with articular involvement of the right femur. The Plaintiff underwent surgery involving: Open Reduction and Internal Fixation (ORIF) with Distal Femur Locking Plate (DFLP) 11-hole plate and screws. The Plaintiff remained hospitalized for approximately nine days. The medical report assessed permanent incapacity at 15%. The doctor further opined that the Plaintiff was likely to develop: post-traumatic arthritis; Chronic knee pain; Joint stiffness; Reduced functional capacity. Future removal of implants was recommended. Defence Case 13.DW1 Dennis Oseko testified for the 2nd Defendant. His evidence was that: Car & General sold motor vehicle KTWB 231K to First Gulf Gas Distributors Limited on 28th July 2017. A tax invoice and delivery note were issued. Possession and control of the vehicle passed to the purchaser. The purchaser became responsible for registration transfer. The company therefore bore no liability for the accident occurring in 2023. The 1st Defendant did not adduce any evidence. Issues for Determination 14.The issues arising for determination are:i.Whether the accident occurred and who was to blame.ii.Whether the 2nd Defendant remained liable as owner of motor vehicle KTWB 231K.iii.Whether the Plaintiff proved his claim for damages.iv.What orders should issue. Liability Whether the accident occurred 15.The occurrence of the accident was established through: The Plaintiff's testimony; Police records; Medical records generated immediately after the accident; Hospital admission records. The court is satisfied that the accident occurred on 30th January 2023. Whether negligence was proved 16.The Plaintiff's evidence was that he was crossing at a zebra crossing when he was struck by the subject vehicle. That evidence was never rebutted. The 1st Defendant, who was the person best placed to explain how the accident occurred, failed to testify. It is settled law that pleadings are not evidence. The court therefore finds that the Plaintiff's evidence remained uncontroverted. 17.I am satisfied on a balance of probabilities that the accident was caused by the negligence of the driver of motor vehicle KTWB 231K. The 1st Defendant is therefore wholly liable. I apportion liability against the 1st Defendant at 100% liability. Whether the 2nd Defendant is liable 18.The Plaintiff relied on the NTSA search showing that Car & General (Trading) Ltd remained the registered owner of the vehicle. The 2nd Defendant relied on a tax invoice and delivery documents showing sale of the vehicle to First Gulf Gas Distributors Limited on 28th July 2017. 19.The law under Section 8 of the Traffic Act creates a rebuttable presumption of ownership. The authorities relied upon by the 2nd Defendant correctly state that registration alone is not conclusive proof of ownership. 20.However, the court must examine whether sufficient evidence was produced to displace the statutory presumption. The evidence produced by the 2nd Defendant consisted principally of a tax invoice and delivery documents. No transfer forms were produced. No NTSA transfer documents were produced. No evidence was led to show that the transfer process was ever initiated. Most importantly, as at the date of the accident and even after the accident, the NTSA records continued to show the 2nd Defendant as a registered owner. 21.In addition, the Third Party never participated in the proceedings to confirm the alleged purchase and transfer. On the totality of the evidence, I find that the 2nd Defendant failed to completely displace the statutory presumption arising under Section 8 of the Traffic Act. 22.I therefore find the 1st and 2nd Defendants jointly and severally liable to the Plaintiff. The 2nd Defendant shall however be entitled to the benefit of the judgment already entered against the Third Party. Quantum of Damages General Damages 23.The Plaintiff sustained: Comminuted fracture of the right distal femur. Articular involvement of the knee joint. Surgical fixation using a distal femur locking plate and screws. Hospitalization for approximately nine days. Permanent incapacity assessed at 15%. Risk of post-traumatic arthritis. Persistent pain and stiffness. 24.Plaintiff's Authorities:a.Mghanga v Said [2025] KEHC 3830 (KLR)- In that case the claimant sustained: Segmental fracture of the femur; Incomplete intertrochanteric fracture; Permanent disability of 18%. Award:Kshs. 1,800,000/=. The injuries in that case involved multiple fractures of the femur and were slightly more severe than the injuries sustained herein.b.Omanga v Ouko [2025] KEHC 1582 (KLR)- In that case the claimant sustained: Fracture of the femur; Multiple rib fractures; Persistent pain. Award: Kshs. 1,500,000/=. The injuries in that case included additional rib fractures and chest trauma which were not sustained by the Plaintiff herein. 25.Although the Plaintiff suffered only one principal fracture, it was a severe intra-articular fracture requiring operative fixation and leaving residual disability.The injuries are slightly less severe than those in Mghanga but comparable to those in Omanga. 26.Taking into account:The nature of the fracture; Surgical intervention; Permanent incapacity; Inflationary trends; Comparable awards, I find that a fair award for pain, suffering and loss of amenities is Kshs. 1,600,000/=. Special Damages 27.The Plaintiff pleaded Kshs. 97,000/=. The documentary evidence produced included: Coast General Hospital receipts; Theatre fee receipts; Implant purchase receipts; Medical report fees; Treatment expenses. The pleaded sum was proved. I therefore award Kshs. 97,000/=. 28.Future Medical Expenses: The medical report recommends:Implant removal. Physiotherapy. Continued medication. The doctor estimated future expenses at Kshs. 182,000/=. The estimate was not rebutted. I therefore award Kshs. 182,000/=. 29.Judgment is entered for the Plaintiff against the 1st and 2nd Defendants jointly and severally as follows:Item Amount (Kshs.)General damages for pain, suffering and loss of amenities 1,600,000Special damages 97,000Future medical expenses 182,000Total 1,879,000 Ordersa.Liability is apportioned at 100% against the Defendants jointly and severally.b.The Plaintiff is awarded Kshs. 1,879,000/=.c.Special damages shall attract interest from the date of filing suit.d.General damages and future medical expenses shall attract interest from the date of judgment.e.The Plaintiff shall have costs of the suit.f.The 2nd Defendant shall be at liberty to enforce the judgment and indemnity orders previously entered against the Third Party.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.............................................EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE