Roselyne Nekesa Wanyonyi v Kinatwa Prestige Limited

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MARIAKANI,** **CIVIL SUIT NO. E036 OF 2025** **ROSELYNE NEKESA WANYONYI ………….PLAINTIFF** **=VS=** **KINATWA PRESTIGE LIMITED …………….DEFENDANT** **JUDGMENT** **Background of the matter** 1. The suit is for compensation for personal injuries allegedly sustained by Plaintiff. The suit is lodged by way of Plaint dated 16/12/2024, filed on 17/04/2025 through Bosire & Partners Advocates for Plaintiff. 2. The plaintiff’s case as pleaded in summary is that 27th October 2024, at 7:30am, she was a fare-paying passenger aboard Toyota Matatu KDP 447S traveling from Nairobi to Mombasa when at Shangia area, the defendant's vehicle negligently attempted to overtake and collided with an oncoming Actros truck (KAY 337K/ZC5746), causing her severe injuries. 3. The Defendant's motor vehicle Toyota Matatu KDP 447S was allegedly driven negligently resulting in the said matatu colliding with motor vehicle reg. no. KAY 337K/ZC5746 (Actros) heading in the opposite direction while attempting to overtake. Plaintiff was injuries as follows Injuries Sustained: *Deep cut on the right lower leg, blunt object injury to the right hip, and blunt object injury to the right lower limb. She* blames the defendant for the negligence of its driver, and claims damages for the pain, suffering and loss of amenities sustained. Plaintiff claims: Special Damages total: Kshs. 2,150/= for the medical treatment expenses Kshs. 150/=; Medical Report: Kshs. 2,000/- and prays for interest on the damages and costs of suit. 4. The suit is opposed vide defendant's Statement of Defence dated 19/06/2025 filed on 20/06/2025) through Kairu & Mc Court Advocates. Defendants denies all material allegations: the occurrence of the accident in the manner alleged; denies that the plaintiff was a passenger aboard Toyota Matatu KDP 447S. The defendant pleads in the alternative that if an accident occurred on 27/10/2024, it was caused solely or substantially contributed to by the negligence of the driver of KAY 337K/ZC5746 not the driver of KDP 447S as alleged. Particular of the said drivers negligence are set out. The damages alleged suffered are denied. The suit should be dismissed with costs to the defendant as the suit does not disclose a reasonable cause of action. Court’s jurisdiction is admitted. 5. Trial: suit was heard on 18/6/2026. Both parties counsels present: Bosire present for plaintiff and Ms. Karambu HB Njoroge for defendant present. The plaintiff's case proceeded on 18/6/ 2026 with only 1 witness called in support of plaintiff’s side: **PW 1 Roselyne Nekesa Wanyonyi.** Plaintiff adopted her statement dated 16/12/2024 as her evidence and produced her documents as per the Bundle of 16/12/2024 as exhibits: *police abstract exhibit 1, p3 form exhibit 2, treatment notes exhibit 3, medical report by Dr. Ajoni ADede as exhibit 4a and 4b the receipt for medical by Adede; receipts for medication exhibit 5; statutory notice exhibit 6; demand letter exhibit 7* save for her Identity card copy (listed but not in the bundle), no. 8, *exhibit 9 motor vehicle search records KDP 447S Matatu exhibit 9.* 6. Ms. Karambu cross- examined **PW 1 Roselyne Nekesa** Wanyonyi and both cases were closed on 18/6/2026. Defence did not call any witness. 7. Leave was granted to file closing submissions and only the plaintiff filed closing submissions dated 25/6/2026. 8. The plaintiff’s submissions largely give a fair summary of the case except on the number of witnesses called: stated to be 3. Only **1 witness testified** Plaintiff. 9. The issues identified for determination in the plaintiff’s submissions: *a). Whether there was an accident; b). Who is liable for the accident?; c)Whether the Plaintiff sustained any injuries and compensation awardable;* d) Who bears the costs of the suit? 10. Plaintiff submits citing supporting decisions that she has proved the defendant is vicariously liable for the negligence established against the driver of KDP 447S having proved defendant’s ownership of the said matatu a rebuttable presumption arises in her favour that the vehicle was being driven by the owner or an authorized agent of the owner, for whose negligence the owner is vicariously liable.*Kenya Bus Services Ltd v. Humphery [2003] KLR 665 (as cited in Joseph Kahinda Maina v. Evans Kamau Mwaura & 2 others [2014] eKLR). Court to find in favcour of plaintiff* 100% liability against the defendant, owner of KDP 447S as no contrary evidence has been tendered. 11. Plaintiff submits injuries pleaded have been proved: *deep cut on the right lower leg, blunt object injury to the right hip, and blunt object injury to the right lower limb* though the medical treatment notes, P3 form, and medical report by Dr. Ajoni Adede dated October 30, 2024. 12. Quantum of damages: plaintiff submits award of **Kshs.400,000/-** is warranted in this case. Decisions in support: Catherine Wanjiru & 3 others v. Gibson Theuri Gichubi (HCC No. 320 of 1998). Quantum Assessment : *Soft Tissue & Ankle Injuries): Awarded Kshs. 300,000/- to a plaintiff with leg, chest, and ankle injuries, and Kshs. 350,000/- to another with multiple soft tissue injuries and joint pain.* 13. Charles Gichuki v. Emily Kawira Mbuba & Another [2018] eKLR: **involving** multiple blunt injuries. The High Court reduced a trial court award from Kshs. 400,000/= to Kshs. 300,000/- for *blunt injuries to the face, shoulder, chest, and thigh.* 14. Plaintiff submits: in view of injuries suffered: blunt force/soft tissue injuries: deep cut on the right lower leg, blunt object injury to the right hip, and blunt object injury to the right lower limb as evidenced supported by medical treatment notes, P3 form, and medical report by Dr. Ajoni Adede dated October 30, 2024) in view of the decisions cited, ongoing pain suffered by plaintiff and adjusting for inflation, Kshs. 400,000/= is a reasonable award. 15. Special Damages: plaintiff submits amount pleaded has been proved: Medical Expenses Kshs. 150/=backed by medical treatment receipts from Mariakani Sub-County Hospital; Kshs. 2,000/= Cost of medical report prepared by Dr. Ajoni Adede, backed by receipt, and thus total Special Damages be awarded Kshs. 2,150/= 16. Costs & Interest: costs follow the event as the Plaintiff proved her case on a balance of probabilities. 17. **ANALYSIS AND FINDINGS:** The court has considered the evidence on record and the plaintiff's submissions. 18. The issues for determination in this case are both liability for the alleged negligence and quantum of damages to be awarded should the defendants be held liable for negligence. 19. The issue in dispute thus is w*hether or not the plaintiff has proved the defendant should be liable or not for the accident.* On resolving the issue of *who is to blame for the said accident,* the other issue dependent on finding on liability i*s whether or not the special damages pleaded have been proved and whether the plaintiff is entitled to the reliefs sought* in the plaint. 20. The plaintiff as the party alleging negligence and seeking relief on that basis as against the defendant has the burden to prove negligence of the driver of KDP 447S on a balance of d and probabilities; and to prove she was injured as pleaded resultant losses/ damages suffered. 21. On **liability issue,** Section 107 of the Evidence Act and section 108 Evidence Act are applicable in this case. Section 107 Evidence Act stipulates the legal burden of proof is upon the party who invokes aid of law on the basis of a fact alleged. It follows there is an evidential burden to discharge proof of the facts alleged to support or disprove the claim as per section 109 of Evidence Act. As was held **in DT Dobie & Co. Ltd Vs Wanyonyi Wafula Chebukati (2014) eKLR.** An excerpt of Dennings J from a case cited in the DT Dobie case*"****....…..****proof of a balance on preponderance of probabilities means* ***a win, however narrow****. A* ***draw is not enough”****…..So………………, where both parties explanations* ***are equally (un)****convincing, the party bearing the* ***burden of proof will lose,*** *because the requisite standard will not have been attained"(emphasis supplied).* 22. Police abstract **exhibit 1** shows the plaintiff was a passenger in KDP 447S on 27/10/2024 accident was reported under O OB 03/27/10/2024 at Mariakani police Traffic. The vehicles involved in the 7am accident are the ones involved in this case KDP 447S and KAY 337K/ZC5746 Actros. Roseline Wanyonyi is among those injured; injury: **harm.** Court finds occurrence of the accident is proved to the required standard. 23. Ownership of the alleged blameworthy vehicle: exhibit 9 motor vehicle search records KDP 447S Matatu shows Kinatwa Prestige Ltd owns the said vehicle as at 2024, 16th December 2024, registered as owner 26/3/2024. Ownership is proved. 24. As to injuries suffered: the court finds plaintiff has proved she suffered the injuries pleaded: *blunt force/soft tissue injuries: deep cut on the right lower leg, blunt object injury to the right hip, and blunt object injury to the right lower limb. She adduced evidence:P3 form exhibit 2 ; medical treatment notes exhibit 3 and medical report by Dr. Ajoni Adede dated October 30, 2024 exhibit 4 which satisfactorily demonstrates the nature of injuries the plaintiff suffered on 27/10/2024.* 25. **Causation** and proof of liability for the accident. **PW 1 Roselyne Nekesa Wanyonyi’** evidence as on record has been considered. While the plaintiff’s case as pleaded accords with the statement of PW 1 which she adopted as her evidence blaming occurrence of the accident on the negligence of driver of the matatu she was travelling in KDP 447S, her testimony in exam in chief and on cross exam exonerated the driver of the said matatu. 26. PW 1 stated *contrary to her written witness statement,* that the vehicle that she blamed for causing the accident on 27/10/2024 was the other vehicle in her words ‘*’Hiyo gari ingine ili overtake yetu halafu gari zikagonganana yetu ikaanguka. Gari yetu ilikuwa kwa njia sawa tu. ile ili ovrtake ndiyo ilikuwa na makosa.’’ She testified that* on the day of the incident she was travelling from Nairobi to MSA as a passenger in matatu ya Kinatwa Sacco KDP. She stated that ‘*’****Dereva wa gari yetu hakuchangia ajali’’.*** 27. On cross examination by Karambu , PW 1 testified that the matatu she was in was *not overspeeding: KDP.* She reiterated that the said matatu *did not overtake the other vehicle* **‘*’siyo ile yetu ni gari ingine iliovertake yetu*. *Ndiyo ajali ilitokea ghafla’’****.* 28. PW 1 in re-exam fell back on the police abstract saying police had blamed the matatu she was travelling (ya Kinatwa KDP 447S that it was the one that was driven badly and it caused the accident. 29. While in the police abstract it is the driver for KDP 447S one Oanda *blamed for driving without due care***,** PW 1 in her oral evidence contradicted that. Her evidence in chief and cross exam exonerated the driver of the motor vehicle she was travelling in. 30. The holding in **David Mwangi Kariuki & another Vs Stephen Mwangi &another (2017)eKLR** by Justice Mulwa that a ***police*** *abstract does not prove how the accident occurred*,and that *it was upon the respondent in the matter before that court, to call and tender credible evidence on how the accident occurred, and to prove the negligence on the driver’s part is a****pplies in this case.*** 31. In this case given the plaintiff’s contradictory testimony which *tends to support the defence case,* the plaintiff’s evidence on **causation of the accident** does not prove the case as required in law. 32. *The* plaintiff’s claim against defendant as owner of the matatu cannot be sustained in view of plaintiff’s own testimony anspving the driver of the matatu from blame and blaimg KAY 337K/ ZC5746 Actros for causing the accident. Without proof negligence of the driver of KDP 4476S *the court finds no basis to hold the defendant liable for the injuries suffered by the plaintiff.* 33. The court finds the plaintiff, though injured, has failed to prove the defendant’s liability. The case is dismissed with costs to the defendant. 34. Had the court found in favour of the plaintiff on liability, this court would have awarded **Kshs. 400,000/=** general damages for pain suffering and loss of amenities. Plaintiff’s submissions on quantum are founded given the nature of injuries suffered: soft tissue injuries that did not result in any partial or permanent disability. 35. Special Damages: total pleaded and particularised: Kshs. 2,150/=; receipts have been produced: medical receipts: Kshs. 150/= and medical report by Dr. Ajoni Adede receipt for Kshs. 2,000/= produced. Award on special damages would haven been Kshs. 2,150/=earning interest from date of suit until full payment, had liability been proved 36. Overall having resolved the issue of who is to blame for the said accident, and found the defendant’s liability has not been proved, court finds the reliefs sought in the plaint are not warranted. The suit against the defendant has not been proved. The same is dismissed. 37. On costs of suit: the defendant shall have costs of suit borne by the plaintiff. 38. Appeal to Malindi High Court. Right of appeal as prescribed. JUDGMENT DATED, SIGNED & DELIVERED THIS…**9th DAY OF SEPTEMBER 2026** **T. N. SINKIYIAN, Principal Magistrate** IN PRESENCE OF: Plaintiff:Represented by: Bosire & Partners Advocates Mr. Bosire **Present** Defendant: Represented by: KRK Advocates LLP Ms. Karambu **Present** HB for Mr. Njoroge Court Assistant:…**Zulekha**