https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/769

Wekesa v Siundu (Civil Case E234 of 2025) [2026] KEMC 769 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEMC 769 (KLR) Republic of Kenya In the Bungoma Law Courts Civil Case E234 of 2025 TO Omono, J July 10, 2026 Between Pamela Naliaka Wekesa Plaintiff and Violet Nafula Siundu Defendant Judgment 1.Pamela Naliaka Wekesa; the Plaintiff, approached this court’s seat of justice through a Plaint dated 24th May 2024 praying for judgment against the Defendants jointly and severally for:-a)General damagesb)Special Damagesc)Costs of this suitd)Interest (b) and (c) abovee)Any other relief this honourable court may deem fit and just 2.It was pleaded by the Plaintiff that her cause of action arose from a road traffic accident that occurred on 04th December 2023 along Bumula – Mateka near the area DCC’s office when she was a pillion passenger on motor cycle registration number KMFC 118 A. 3.The said motorcycle that the Plaintiff had boarded was reportedly hit by motorcycle registration number KMGD 643 S thereby causing the accident herein. 4.The Plaintiff blamed the occurrence of the accident on the Defendants’ negligence as particularized in paragraph 5 of the Plaint. 5.Arising from the accident herein, the Plaintiff averred that she sustained bodily injuries and incurred expenses that she now seeks compensation from the Defendants. 6.The 1st Defendant neither entered appearance nor filed a Statement of Defence despite having been duly served. 7.The 2nd Defendant entered appearance and filed a Statement of Defence dated 13th September 2024 denying ownership of motorcycle registration number KMGD 643 S and the particulars of negligence attributed to them. 8.On 16th September 2024, the 2nd Defendant filed a Notice of Motion Application dated 13th September 2024 praying to be struck out from this suit on the basis that they were only registered owners of motorcycle registration number KMGD 643 S agent/nominee of the 1st Defendant’s financier towards the purchase of the said motorcycle. 9.By consent of the parties, the suit against the 2nd Defendant was withdrawn on 13th March 2025 hence this matter proceeded by way of formal proof as against the 1st Defendant. Plaintiff’s Case 10.PW1 Pamela Naliaka Wekesa adopted her witness statement dated 24th May 2024 as her evidence in chief. She also produced the documents listed in her list of documents dated 24th May 2024 as exhibits. Analysis & Determination 11.This court has duly considered the Plaintiff’s pleadings, exhibits, evidence on record, written submissions, and the authorities relied upon. 12.Whereas this matter proceeded by way of formal proof, it behooves restating the law in this jurisdiction that even in such scenarios, the Plaintiff still bears the legal burden of proving their case on a balance of probabilities. The often-cited quote of ‘who alleges must prove’ is always applicable at all times since it is trite that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:‘’Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.’’ 13.The legal position above is buttressed by the position taken in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR where the Court of Appeal expressed itself as hereunder:“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 14.Similarly, in Gichinga Kibutha –vs- Caroline Nduku (2018) eKLR, where the Court stated thus:-“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 15.Guided by the authorities above, this court proceeds to determine whether the Plaintiff proved her case on a balance of probabilities. 16.The Police Abstract (Pexh.3) shows that the accident herein was reported to the police. It also shows that the 1st Defendant was the registered and beneficial owner of motor cycle registration number KMGD 643 S at the time of the accident. The Watu Credit Loan Agreement dated 17th October 2022, placed before this court by the 2nd Defendant, evidences as much. 17.There is always a rebuttable presumption of the truth of entries made by a public official in a public document (see section 38 of the Evidence Act). It thus follows that in the absence of evidence to controvert the contents of the police abstract, this court cannot disbelieve the entries in the police abstract on ownership of motor cycle registration number KMGD 643 S. 18.It is against this backdrop that the issues that commend to this court for determination are liability and quantum. Liability 19.The Plaintiff was a pillion passenger on motorcycle registration number KMFC 118 A that was hit by motorcycle registration number KMGD 643 S. She was not in control of either of the motorcycles. 20.A passenger’s liability in an accident is well settled in this jurisdiction. In Oduor v Achieng (Civil Appeal E026 of 2023) [2023] KEHC 27162 (KLR) (20 December 2023) (Judgment), the court rendered itself on this issue as follows:-“…A passenger cannot be held liable when a vehicle he/she is travelling in is involved in accident unless it is demonstrated on how negligent she was say, jumping out of the motor vehicle or hanging on the said motor vehicle while it is in motion. See Rosemary Wanjiku Kungu –Vs- Francis Mutua Mbuvi & Another (2014) eKLR. Further to this, the respondent testified, and this was not controverted by the appellant even in cross-examination, that she had fastened her seatbelt and that the suit motor vehicle was being driven in a speeding manner so as to cause it to zig zag on the road.Accordingly, the respondent passenger cannot be held liable for occasioning or contributing to the occurrence of the accident. Having considered the evidence on record, the fact that the Plaintiff was not in control of the motor vehicle in question, and guided by the authorities above, this court finds no reason to disbelieve the Plaintiff’s version of events on how the accident herein occurred…”(Emphasis added) 21.There is no evidence on record to show that the Plaintiff contributed in any way whatsoever to the occurrence of the accident herein. 22.Given the above, this court holds and finds the 1st Defendant 100% liable for the occurrence of the accident herein. Quantum (a) General Damages 23.A careful perusal of the Plaintiff’s Plaint, P3 form (Pexh.2), treatment notes (Pexh. 1) and the medical report by Dr. Sokobe (Pexh.4) shows that arising from the accident herein the Plaintiff sustained the following injuries: 24.Cut wounds on the occipital scalp, forehead and lower lip, and blunt injuries to the forehead, left ear, chest, left leg and the right shoulder. 25.These injuries were pleaded in the Plaint herein. Those injuries were assessed as soft tissue injuries of the degree of harm, with no temporary or permanent incaoacity. 26.However, the healed scars on the occipital scalp, forehead and lower lip in the medical report herein were not pleaded in the Plaint. 27.The law in this jurisdiction is that parties are bound by their pleadings as eloquently stated by the Supreme Court Raila Amollo Odinga & Another- vs- IEBC & 2 others[2017]eKLR, as follows:“In the absence of pleadings, evidence if any, produced by parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them.”(Emphasis added) 28.Further, in Treadsetters Tyres Ltd – vs- John Wekesa Wepukhulu [2010] eKLR, where the court held that:“I have carefully considered the above. First, however much, the courts are Courts of Equity, there are certain procedural law that cannot be overridden by principles of equity. Each party is bound by his pleadings. In cases of tortuous claims based on negligence, injuries and special damages must be pleaded. They cannot be imagined or inferred. The court’s road-map are the pleadings on record. If a party alleges he suffered an injury, he must particularize the same so that the Defendant can specifically respond to the claim. One must plead the nature and extent of injuries suffers. This is a mandatory requirement of the law. His omission cannot be cured by principle of equity or the principles envisaged in Section 1A, 1B and 3A of the Civil Procedure Rules.”(Emphasis added) 29.Guided by the authorities above, this court will not take into consideration the scars sustained by the Plaintiff that were not pleaded in the Plaint in making an award under this head. 30.It is also noteworthy that the Plaintiff was treated as an outpatient at Bumula Sub-County Hospital and Lifecare Hospital Bungoma. 31.In determining the award under this headed, this court will be guided by the Court of Appeal’s decision in Stanley Maore -vs- Geoffrey Mwenda [2004] eKLR, stated thus:“…………. Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again 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.” 32.The injuries sustained by the Claimant herein are almost similar to the injuries sustained by the Plaintiff in FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, where an award of Kshs 60,000/- was enhanced to Kshs 100,000/- where the minor had sustained soft tissue injuries, which were blunt object injury to the head, neck, limbs thorax and abdomen. 33.In Gede Enterprises Ltd v Ondieki alias Samwel Mose (Civil Appeal 41 of 2023) [2024] KEHC 5764 (KLR), the Plaintiff sustained a cut on the occipital region of the scalp, several lacerations on the face, hand and legs. The court made an award of Kshs. 100,000/= for general damages. 34.In Adembesa & another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR) (17 May 2024) (Judgment), the respondent sustained soft tissue injuries to the head, back, chest, head, shoulders, elbow joints and knees. The court made an award of Kshs. 120,000/= for general damages. 35.In light of the authorities cited above, more specifically the recent Adembesa case (supra), this court is of the considered view that an award of Kshs. 120,000/= will be reasonable compensation under this head. (b) Special Damages 36.Special Damages must be pleaded and strictly proved before they are awarded as restated in Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, where the Court of Appeal held as follows:-“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 37.The Plaintiff pleaded in paragraph 7 of their Plaint for Special Damages of Kshs. 7,750/= for treatment expenses and for Kshs, 6,000/= for the medical report. 38.The Plaintiff produced before this court receipts (Pexh.5) evidencing the above claims for Special Damages. 39.In the circumstances, the Plaintiff is awarded Special Damages of Kshs. 13,750/=. Disposition 40.For the reasons above, judgment is entered against the 1st Defendant in the following terms:-a.Liability – 100% in favour of the Plaintiffb.General damages - Kshs. 120,000/=c.Special Damages - Kshs. 13,750/=Net Award - Kshs. 133,750/= 41.The General Damages 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. 42.The Plaintiff will have the costs of this suit. 43.Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 10TH DAY OF JULY 2025T.O. OMONOMAGISTRATEIn the presenceMr. Anwar h/b for Kweyu for the Plaintiff1st DefendantC/A: Albert