https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/439

**REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATES COURT AT KALOLENI** **CIVIL SUIT NO. E242 OF 2025** **SADA KUDUKU RIA…………………………………………………………PLAINTIFF** **VERSUS** **TRINITY ACE LOGISTICS LIMITED…………………………………..DEFENDANT** **JUDGMENT** **Background** 1. The plaintiff seeks the following reliefs: 2. General damages. 3. Special damages. 4. Costs and interest. 5. The defendant filed a statement of defence and sought to have this case dismissed with costs. **Plaintiff’s Case** 1. On 21st August 2025 the plaintiff was a lawful fare paying passenger aboard motor vehicle registration number KCM 856Z along Mombasa – Nairobi highway when the defendant’s motor vehicle registration number KDU 779B/ZD 3197 was then negligently driven that it rammed into the rear of motor vehicle registration number KCM 856Z and as a result thereof the plaintiff sustained injuries. 2. The plaintiff holds the position that the accident was caused by the negligence and carelessness of the defendant’s authorized driver. Particulars of negligence on the part of the defendant’s driver have been pleaded together with particulars of injuries the plaintiff sustained alongside particulars of special damages. **Defendant’s Case** 1. The defendant denies the occurrence the occurrence of the accident and puts the plaintiff to strict proof. The particulars of injuries sustained by the plaintiff and the special damages incurred are equally denied. It is the defendant’s position that if the said accident occurred then the same was caused or substantially contributed to by the negligence of the driver of motor vehicle registration number KCM 856Z. Particulars of negligence on the part of the said driver have been pleaded. In conclusion, the defendant invites the court to dismiss this case with costs. **Evidence** 1. **PW1 – Dr. Darius Wambua Kiema** examined the plaintiff and prepared a medical report which he produced as an exhibit. In cross examination, he stated that the plaintiff sustained soft tissue injuries. 2. **PW2– Number 84805 PC Vincent Ambenge** confirmed the occurrence of the accident herein. It was his testimony that upon reaching at the scene of the accident the defendants driver failed to keep reasonable distance and rammed into the rear of motor vehicle registration number KCM 856Z. That passengers who were on board motor vehicle registration number KCM 856Z then sustained injuries. In cross examination, he stated that he was not the investigating officer and that he did not visit the scene. Further, that investigations are complete and he defendant’s driver is pending arrest. 3. **PW3 - Sada Kuduku Ria,** the plaintiff,adopted her witness statement dated 11/9/2025 as her testimony in chief. She also produced documents contained in her filed list of documents as exhibits. It was her testimony that she had sustained injuries as a result of the accident herein and had not recovered. She blamed the driver of the defendant’s vehicle for having knocked their vehicle from behind. In cross examination, she stated that she was in agreement with Dr. Kiema’s report and that the defendant’s vehicle was behind their vehicle prior to the occurrence of the accident herein. 4. **DW1 – Stephen Ngundo Irungu,** the defendant’s driver informed the court that adopted his filed witness statement as his testimony in chief. He produced documents contained in his lists of documents as exhibits. It was his further testimony that he was on the outer lane and that the other vehicle came to his lane and suddenly made a stop. That he tried to swerve though he still hit the other vehicle. In conclusion, he stated that he had not been charged. He also maintained that the driver of the other vehicle was to blame. 5. In cross examination, he stated that the matatu was hit from the rear and landed in a ditch. That he was the driver of motor vehicle registration number KDU 779B which vehicle was blamed as per the police abstract. **Analysis and Determination** 1. This court has thus considered the pleadings herein and the totality of the evidence on record and the submissions filed. I find that the issues that arise for determination are: 2. Liability 3. Quantum. 4. Costs. 5. The plaintiff is required to establish her case on a balance of probabilities. 1. It is also a principle of law that whoever lays a claim before the court against another has the burden to prove it. Section 107 of the [Evidence Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1963/46) provides as follows:- ***(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** **Liability** 1. The plaintiff testified and produced the necessary exhibits in support of the case herein. Secondly, the police abstract produced indeed confirms the accident herein was reported and that the plaintiff who was a passenger sustained injuries. The plaintiff informed the court that the motor vehicle she was in was hit from the rear. PW2 the police officer who testified confirmed that same. It was his testimony that the defendant’s driver failed to keep safe or reasonable distance hence hit from behind the vehicle that the plaintiff had boarded. DW1 the defendant’s driver on his part stated that he indeed hit the said matatu from the rear, though he maintained that it is the said matatu that suddenly came to his lane. 2. In **Shukri & another v Odhiambo & another (Civil Case 1 of 2022) [2025] KEHC 18227 (KLR) (28 November 2025) (Judgment)**it was held as follows ***“Every driver on a road owes a duty of care to other road users and must have regard to the conditions of the road at the time including any objects that could be on the road including animals”*** 1. In **Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR) (9 May 2025) (Judgment)** it was held as follows: ***“In road traffic cases, the duty of care requires that drivers maintain a safe distance, and the failure to do so can lead to a finding of negligence if it results in a collision. The appellant, as a driver, owed a duty of care to the respondent and all other road users. His failure to maintain a safe distance from the respondent’s vehicle was a breach of this duty. The case of Stapley v Gypsum Mines Limited, (supra), as cited by the respondent, emphasized that legal causation must be determined by common sense and an analysis of the facts at hand. In the circumstances, we find that the breach of duty by the appellant directly resulted in the accident.”*** 1. The court having evaluated the evidence herein finds that DW1 breached his duty of care by failing to maintain a safe distance between hence hitting from behind the vehicle that that the plaintiff had boarded. The defendant blamed the driver of the vehicle that the plaintiff had boarded however the defendant did not proceed further to take-out third-party proceedings against the said driver. 1. The court finds the defendant vicariously liable who as per the police abstract and copy of records owned the motor vehicle registration number KDU 779B/ZD 3197 that DW1 was driving and which motor vehicle then caused the accident herein. 2. In **Masinde v Wanunda (Civil Appeal E021 of 2021) [2023] KEHC 17246 (KLR) (12 May 2023) (Judgment)** it was held as follows with regards to the contents of a police abstract: ***“Once the police abstract was placed on record, showing him to be the owner of the motor vehicle, the burden shifted to him, to disprove that. The police abstract is a document generated by the police, based on material on the motor vehicle itself. There is an insurance sticker which shows the insured owner of the vehicle, and in this instance, that insured owner appeared, on the insurance sticker, as the appellant. Burden shifted to him to challenge that evidence, either by demonstrating that he was not the person named in the police abstract, or otherwise. He did not, and the case, as presented by the respondent, stood. The trial court was not in error.”*** 1. I have also not found any contributory negligence on the part of the plaintiff passenger. 2. In **Alfred Chivatsi Chai & another v Mercy Zawadi Nyambu [2019] eKLR** the High Court sitting at Malindi held as follows on the role of a passenger. ***“A review of the single set of evidence relied upon by the trial court was that of the respondent. She was a pillion passenger on the said motor cycle owned by the appellants. It was stated by the respondent that the motor cycle was travelling at high speed and having swerved collided with another motor cycle. It is somehow amazing of what role the respondent could have played to avoid the accident or loss and damage………………………………The matter therefore as it stands, I find no evidence that the Learned trial Magistrate applied his discretion wrongly in holding that the appellants were wholly liable for the occurrence of the accident in negligence and breach of the duty of care.”*** 1. I therefore find the defendant 100% liable. **Quantum** 1. The plaintiff pleads that she sustained the following injuries: 2. Two cut wounds on the scalp. 3. Bruise/abrasion on the right knee. 4. Blunt trauma on the lower back. 5. Bruise/abrasion on the right elbow. 6. Blunt trauma on the right shoulder. 7. Dr. Darius Kiema in his medical report confirms those injuries. He classified the injuries herein as soft tissue with no permanent disability. The treatment notes and the P3 form which were produced as exhibits also affirm the said injuries. 8. In the case of [**Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2020/4128)**[2020] eKLR** the high court awarded the sum of Kshs. 150,000/- for blunt object injury to the lower lip, blunt object injury to the chest, and blunt object injury to the left wrist. 9. In **Equity Bank of Kenya Limited vs David Githuu Kuria (2020) eKLR,** the High Court awarded Kshs 250,000/= for blunt injury (tender) anterior chest wall, cut wounds left knee and swollen tender left knee 10. Further, in **Harun Muyoma Boge v Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR**, the High Court held as follows **“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”** 1. Looking at the totality of the injuries sustained by the plaintiff and having considered the submissions filed I find that a figure of **Kshs. 250,000/=** as general damages for pain and suffering is sufficient compensation which this court then grants. **Special Damages** 1. The court of appeal in **Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716**, 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.”** 1. The plaintiff pleaded special damages of Kshs. 2,550/=. The plaintiff produced a receipt for preparation of the medical report amounting to Kshs. 2000/= and copy of motor vehicle records receipt of Kshs. 550/=. The court therefore finds that special damages that were pleaded and proved amounted to **Kshs. 2,550/=** which are hereby then granted. **Costs** 1. On costs, Section 27(1) of the Civil Procedure Act, provides that: ***“ Subject to such conditions and limitations as may be prescribed…the costs of and incidental to all suits shall be in the discretion of the court, and the court shall have full power to determine by whom and out of what property and to what extent such costs are to be paid... “*** 1. In **Kirugi v Jan Japan (K) Limited & another (Civil Appeal E011 of 2023) [2026] KEHC 4486 (KLR) (12 March 2026) (Ruling)** the High Court held as follows: ***“The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others {2014} eKLR emphasized that while the general rule is that costs follow the event, the Court retains a wide discretion which must be exercised judiciously and not mechanically, and held that “Costs follow the event but the court has discretion to determine otherwise depending on the circumstances of the case.”*** 1. In **William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526** the High Court held as follows: **“*In ordinary civil cases, a case may be determined in favour of a*** ***party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”*** 1. The plaintiff having established her case against the defendant on a balance of probabilities is awarded costs of the suit. **Summary of Prayers Granted.** 1. In conclusion, I accordingly enter judgment in favour of the plaintiff against the defendant as follows: 2. **Liability 100% against the defendant.** 3. **General damages -Kshs. 250,000/=** 4. **Special damages – Kshs. 2,550/=** **Total - Kshs. /= 252,550/= (Plus interest at court rates from the date of filing suit till payment in full)** 1. **The plaintiff is also awarded costs of the suit.** Judgment Dated, Signed and Delivered at Kaloleni this 10th Day of August 2026. **G. M. MOKUA** **RESIDENT MAGISTRATE** **In the presence of:** **Mr. Ngugi for the Plaintiff.** **Mrs. Okata for the Defendant.** **Karen - Court Assistant**