Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E180 OF 2025** **SAMUEL NOAH MASOSO…………..…………..………….…………….PLAINTIFF** **VERSUS** **ENA INVESTMENTS LTD…………….……………….…………..……DEFENDANT** **JUDGMENT** 1. The Plaintiff moved this court through a Plaint dated 26th April 2025, praying for judgment against the Defendant for: 2. *General damages, past, present and future medical and nursing expenses* 3. *Future medical expenses* 4. *Special damages Kshs. 4,550/=* 5. *Costs* 6. *Interest* 7. *Any other relief this Honourable Court may deem fit to grant* 8. *Costs of this suit* 9. The Plaint shows that the Plaintiff’s cause of action arose on 18th January 2025 when the Plaintiff was riding motorcycle registration number KMCG 172 E (“the Plaintiff’s motorcycle”) along Bungoma – Mumias road around Victorious area when the Defendant’s driver carelessly and negligently drove the Defendant’s motor vehicle registration number KDA 291 W causing it to knock the Plaintiff thereby causing the Plaintiff severe bodily injuries thus necessitating the filing of this suit for damages. 10. The Plaintiff blamed the occurrence of the accident on the Defendant’s negligent acts and omissions enumerated in paragraph 4 of the Plaint. 11. The Defendant entered appearance and filed a Statement of Defence putting the Plaintiff to strict proof of all the averments in the Plaintiff’s Plaint. The Defendant pleaded in the alternative that if the accident herein occurred, then the same was caused by the Defendant’s negligent acts and omissions particularized in the Statement of Defence on record. 12. Given the divergent positions taken by the parties herein on who was to blame for the occurrence of the accident, this matter was set down for hearing for the Plaintiff and the Defendant to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1 No. 768XXX PC Isaac Kimani Njuguna** produced the police abstract dated 07th April 2025 showing that the accident herein occurred and was reported at Bungoma Police Station vide OB. No. 12/18/01/2025. He added that PC Kamau investigated this accident, and that the circumstances under which the accident occurred were still under investigation. 2. He conceded in cross-examination that he could not tell the circumstances under which the accident occurred. 3. **PW2 Samuel Noah Masoso** testified that the accident occurred when he was driving the motorcycle on the left side from Mumias direction headed to Bungoma direction only for the Defendant’s motor vehicle which was behind him headed in the same direction to overtake him and abruptly swerved back into his lane before completely overtaking him thereby knocking him. 4. He produced a receipt for Kshs. 550/=, the copy of records, a copy of his identity card, and the demand notice as exhibits. He added that he had not fully recovered from the injuries he sustained since he still takes pain killers for the pains. 5. He reiterated in cross-examination that the accident occurred when the Defendant’s motor vehicle’s driver swerved and encroached onto his lane and hit his motorcycle on the side. He further stated that he was riding at 40km/hr and that he applied the brakes on time. **Defendant’s Case** 1. **DW1 George Bosire Joshua** was the Defendant’s authorized driver at the time of the accident. He blamed the Plaintiff for causing the accident by ramming into the Defendant’s motor vehicle from behind. 2. He conceded in cross-examination that he had not filed the Defendant’s motor vehicle’s inspection report. He denied speeding at the time the accident occurred. He added that he was driving at 30km/hr when the accident occurred. 3. **DW2 815XXX PC Jackline Ochieng** produced the OB extract for OB No. 12/18/01/25 reportedly setting out the circumstances under which the accident herein occurred as an exhibit. He blamed the Plaintiff for causing the accident. 4. She admitted in cross-examination that the OB extract she had produced did not list the police officers who visited the scene. **Additional Evidence** 1. The parties herein recorded a consent on 25th November 2025 admitting the Plaintiff’s medical report dated 08th April 2025, outpatient card from Bungoma County Referral Hospital, P3 form, and the receipt for the medical report for Kshs. 4,000/= as exhibits. **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. It is common ground that the accident herein occurred and that the Plaintiff sustained injuries as a result of the accident. There is also no dispute that DW1 was the Defendant’s agent at the time of the accident; thus, in the event this court finds DW1 liable for the occurrence of the accident, the Defendant will be vicariously liable for DW1’s negligent acts or omissions. 3. The reasons above incline this court to find that the issues which commend to this court for determination are liability and quantum. **Liability** 1. PW1 admitted, and rightfully so, that he could not tell the circumstances under which the accident occurred. The Plaintiff (PW2) blamed DW1 for hitting his motorcycle on the side as DW1 overtook him and encroached onto his lane. 2. DW1, on the other hand, blamed the Plaintiff for ramming into the Defendant’s motor vehicle from behind. The Defendant also sought to rely on DW2’s testimony on the circumstances under which the accident occurred. DW2 relied on the contents of the OB extract to blame the Plaintiff for causing the accident. 3. It should be remembered that the OB extract produced by DW2 was not certified. The failure to certify the said OB extract rendered it inadmissible. In any event, DW2 conceded that she neither visited the scene nor investigated the circumstances under which the accident occurred. The evidential value of the testimony led by such a police officer on the circumstances under which the accident occurred was explained 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 and DW2’s testimony on the circumstances under which the accident occurred cannot be used to determine liability in this case. 2. The analysis above leaves this court with the Plaintiff and DW1’s contradictory evidence on the circumstances under which the accident occurred to apportion liability in this matter. 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. It is always desirable in cases such as this where there was a collision between two motor vehicles and two drivers 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, or any other eyewitness account on how this accident occurred for the court to have a clear picture of how the accident occurred. Such evidence makes it easy for the court to apportion liability between two drivers. 4. In the absence of the evidence alluded to in paragraph 24, this court was left at sea on how to apportion liability between the parties herein based on the contradictory oral testimony by the Plaintiff and DW1. This does not mean that this court will fold its arms and fail to apportion liability in this case. The path to be taken by a court in such a situation was explained by the Court of Appeal in **Abbay Abubakar Haji Patuma Ali Abdulla Vs Freight Agencies Ltd [1984] KECA 14 (KLR),** where the court 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 5 of his Plaint on the injuries he suffered as a result of the accident.In the circumstances, multiple moderate soft tissue injuries, which left the Plaintiff with scars. 3. This court has given due regard to the parties’ authorities on quantum. It is trite law that comparable injuries attract comparable awards. 4. 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. 8. In the circumstances, this court finds an award of Kshs. 200,000/= to be reasonable under this head. 9. **Special Damages** 10. The Plaintiff pleaded for special damages of Kshs. 4,550/= in paragraph 5 of his Plaint. 11. The receipt for Kshs. 4,000/= for the medical report issued by Dr. Ekesa, and the NTSA receipt for Kshs. 550/= proved the pleaded special damages of Kshs. 4,550/=. 12. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 4,550/=. 13. **Future Medical Expenses** 14. The Plaintiff pleaded for future medical expenses for anti-inflammatory agents and psychosocial support. The medical report dated 08th April 2025 by Dr. Ekesa stated as much. 15. Plaintiff testified that he needed future medical expenses for the painkillers he still uses for the pain arising from the injuries he sustained from the accident. He did not state that he needed future medical expenses for psychosocial support. 16. Dr. Ekesa did not testify before this court on the cost of the future medical expenses and the duration for the future medical expenses. 17. Be that as it may, the evidence on record is clear that the Plaintiff needs future medical expenses for painkillers. Taking the totality of the evidence on record, this court exercises its discretion and awards the Plaintiff Kshs. 10,000/= for the painkillers. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:- 2. *Liability………………………………50%:50%* 3. *General Damages…………………..Kshs. 200,000/=* 4. *Special Damages…………………….Kshs. 4,550/=* 5. *Future Medical Expenses………….Kshs. 10,000/=* *Grand Award…………………….Kshs. 214,550/=* *Less 50%* ***Net Award…………………………Kshs. 107,225/=*** 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 28th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Nekesa h/b Bwonchiri for the Plaintiff Mr. Choni for the Defendant C/A: Mr. Rioba