https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/777

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E277 OF 2025** **TIMOTHY KIMOTHO (Minor suing through her father and next friend KARONI CHARLES ESAU alias CHARLES ESAU OKARONI)…………..………………………………………..……...……………PLAINTIFF** **VERSUS** **LILIAN INGATO NYIKULI……………………….……….…………………...DEFENDANT** **AND** **SEAMRISE INVESTMENT MACHINERY LIMITED…………………….THIRD PARTY** **JUDGMENT** 1. The Plaintiff moved this court vide a Plaint dated 10th June 2025, where the Plaintiff prayed for judgment against the Defendant for:- 2. *General damages for pain and suffering* 3. *Special damages of Kshs. 10,750/=* 4. *Costs of this suit* 5. *Interest on (a), (b), and (c) above* 6. *Any other relief this Honourable Court may deem just and fit to grant* 7. The Plaintiff pleaded in his Plaint that the cause of action herein arose on 03rd March 2025 while the minor was a lawful fare paying passenger in the Defendant’s motor vehicle registration number KCH 792 P (“the Defendant’s motor vehicle”) along Bungoma – Mumias road when the Defendant’s motor vehicle lost control at Watoya area and hit motorcycle registration number KMFF 135 L (“the motorcycle”) causing the minor to sustain bodily injuries which the minor seeks compensation. 8. Further, the Plaintiff averred that the accident was caused by the Defendant’s negligent acts and omissions enumerated in paragraph 5 of the Plaint. 9. The Defendant entered appearance and filed a Statement of Defence dated 12th June 2025 denying the occurrence of the accident and all the particulars of negligence attributed to her. She also put the Plaintiff to strict proof of the averments in her Plaint. 10. The Defendant also took out a Third-Party Notice dated 15th October 2025. The Third Party failed to enter appearance within the prescribed period despite having been duly served with the said notice and pleadings. Consequently, this court directed that the Third Party’s liability be determined during the hearing of this suit. 11. It is against this background that this suit was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. 12. The evidence adduced before this court during the hearing is summarized below. **EVIDENCE** **Plaintiff’s case** 1. **PW1 No. 76XXX PC Isaac Kimani Njuguna** of Bungoma Police Station produced the police abstract dated 04th March 2025 showing that the occurrence of the accident herein was reported at Bungoma Police Station vide OB. No. 53/03/03/2025. He could not tell the circumstances under which the accident occurred. 2. **PW2 Harrison Jakait** adopted his witness statement dated 10th June 2025 as the minor’s evidence in chief. He also produced all the documents filed by the Plaintiff as exhibits, save for the police abstract. **Defendant’s Case** 1. **DW1 Solomon Karanja Wainaina** was the Defendant’s motor vehicle’s driver at the time of the accident. He adopted his witness statement on record as his evidence in chief. His testimony was that the accident occurred when the oncoming motorcycle carelessly overtook two motor vehicles ahead of it, only to veer into the Defendant’s motor vehicle’s lane, thereby leading to a head-on collision between the said motor vehicle and the said motorcycle. He produced the motor vehicle’s inspection report and his driving licence as exhibits. 2. He admitted in cross-examination that he saw the motorcycle rider 20 metres away before the occurrence of the accident. He added that he applied the brakes and swerved off-road, but the accident still occurred. He also added that he could not apply the brakes immediately given the distance between the motor vehicle and the motorcycle, as well as the motor vehicle’s speed. 3. **DW2 No. 81XXX PC (W) Jackline Ochieng** of Bungoma Police Station testified that the accident occurred when the motorcycle was overtaking a motor vehicle in front of it, only to collide head-on with the oncoming Defendant’s motor vehicle. She added that she did not investigate the circumstances under which the accident occurred, and that she had gathered the circumstances under which the accident occurred from the Occurrence Book’s extract which she produced as an exhibit. 4. She conceded in cross-examination that she neither visited the scene, and that she had not produced the accident’s sketch maps. She also admitted that the OB extract she had produced had neither absolved the Defendant’s driver from blame nor blamed the motorcycle rider for the accident. 5. She also admitted the OB extract she had produced did not contain the accident’s point of impact. 6. In re-examination, she took the position that the rider was to blame for the occurrence of the accident since he was overtaking. **Third Party’s Case** 1. The Third Party neither entered appearance nor filed any pleadings. It follows that the Third Party admitted contributing to the occurrence of the accident. However, that does not lessen the Defendant’s burden of proving on a balance of probabilities the extent of the Third Party’s contribution to the occurrence of the accident. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 2. Given the fact that the parties herein adopted Bungoma CMCC No. E276 of 2025 as the test suit on liability, the only issue for determination herein is quantum. 3. It is important for the completeness of the record to state that this court apportioned liability in the said test suit equally between the Defendant and the Third Party. **Quantum** 1. **General Damages for Pain and Suffering** 2. The Plaintiff pleaded in paragraph 7 of her Plaint that the accident caused him to blunt injury to the chest, back, right wrist, left leg, and bruises to the left leg. 3. The uncontroverted medical evidence produced by the Plaintiff proved on a balance of probabilities that the Plaintiff sustained the injuries above as a result of the accident herein. 4. The law in this jurisdiction is that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in **Stanley Maore vs Geoffrey Mwenda (2004) eKLR,** as follows: - *“...we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that 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.”* 1. This court has given due regard to the written submissions on record on quantum. The Plaintiff’s counsel relied on authorities where the Plaintiffs sustained more severe injuries than the ones sustained by the Plaintiff herein. The Defendant’s counsel, on their part, relied on authorities where courts made inordinately low awards for multiple soft tissue injuries. In the circumstances, this court will disregard the authorities cited by the parties herein in support of the awards they urged this court to make under this head. 2. 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. 3. 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. 4. 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. 5. 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. It is for this reason that this court makes an award of Kshs. 200,000/= under this head. **Special Damages** 1. The Plaintiff pleaded in paragraph 7 of her Plaint for Special Damages of Kshs. 10,750/=. 2. The receipt for the medical report for Kshs. 6,000/=, the receipt for the copy of records from NTSA for Kshs. 550/=, the receipt for medical expenses of Kshs. 300/= from Kabula dispensary proved Special Damages of Kshs. 6,850/=. 3. It is against this backdrop that this court makes an award of Kshs. 6,850/= under this head. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms: - 2. *Liability………………………………………100% in favour of the Plaintiff* *………………………………………………...50%:50% between the Defendant and the Third Party* 1. *General Damages…………………...………Kshs. 200,000/=* 2. *Special Damages……………………...…….Kshs. 6,850/=* ***Total Award……………………..Kshs. 206,850/=*** 1. The General Damages shall accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages shall accrue interest at court rate from the date of filing this suit till payment in full. 2. The Plaintiff shall have the costs of this suit. 3. The Defendant shall bear their own costs of the Third-Party proceedings. 4. The Third Party will indemnify the Defendant 50% of the decretal sum and costs herein payable by the Defendant to the Plaintiff. 5. Judgment accordingly. **Read, signed, and delivered in open Court at Bungoma this 09th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Okara for the Plaintiff Mr. Choni for the Defendant C/A: Mr. Rioba