Omondi v Yunnan International Construction Company Ltd (Civil Case E048 of 2025) [2026] KEMC 743 (KLR) (17 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E048 OF 2025** **TWAPINICOL NATASHA OMONDI………………………………..……...……………PLAINTIFF** **VERSUS** **YUNNAN INTERNATIONAL CONSTRUCTION COMPANY LIMITED……………………….……….……………………………………DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the Defendant through a Plaint dated 15th January 2025 seeking judgment against the Defendant for: 2. *General damages* 3. *Special damages of Kshs. 6,635/=* 4. *Costs of this suit* 5. *Interest on (a) and (b) above* 6. The Plaintiff pleaded that on 29th December 2024, while a passenger in a matatu along Bungoma – Malaba road at Mayanja bridge, a shovel registration number KHMA 071 P (“the shovel”) was negligently driven, causing it to ram into the matatu, thereby causing her to sustain serious bodily injuries enumerated in paragraph 6 of his Plaint. 7. She pleaded in paragraph 4 of her Plaint the particulars of negligence she attributed to the shovel’s driver. She also placed reliance on the doctrine of *res ipsa loquitor,* the provisions of the Highway Code, as well as the Traffic Act in support of him case. 8. The Defendant responded to this suit through a Statement of Defence dated 24th May 2024, denying all the particulars of negligence attributed to them by the Plaintiff. They blamed the occurrence of the accident on the Plaintiff’s failure to take caution while travelling, and negligence by the driver of the motor vehicle registration number KAU 295 N (“the matatu”). 9. The Defendant also blamed the matatu driver’s negligence for the occurrence of the accident. 10. Given the divergent positions taken by the parties herein on the circumstances under which this accident occurred, this court set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s case** 1. **PW1 Dr. Joseph Sokobe** produced the Plaintiff’s medical report dated 02nd January 2025 and the receipt for Kshs. 6,000/= as exhibits. 2. His testimony was that arising from the accident, the Plaintiff sustained blunt injuries to the head, neck, chest, abdomen, bruises on the left knee, and cut wounds on the left leg and right foot. 3. **PW2 No. 76835 PC Isaac Kimani Njuguna** of Bungoma Traffic produced the police abstract showing that the accident herein occurred on 29th December 2024 along Bungoma – Malaba road at Mayanja bridge involving motor vehicle registration number KHMA 071 P shovel, and motor vehicle registration number KAU 295 N Toyota Hiace Matatu. 4. He added that the Plaintiff was among the people injured as a result of the accident. 5. He conceded in cross-examination that he was not the accident’s investigating officer and that he did not visit the scene. He could not tell the circumstances under which the accident occurred. 6. **PW3 Elias Adoka,** a Clinical Officer at Bungoma County Referral Hospital, produced the Plaintiff’s P3 form dated 31st December 2024 and her outpatient card from Bungoma County Referral Hospital as exhibits corroborating PW1’s testimony that the accident caused the Plaintiff to sustain multiple soft tissue injuries, which she must have fully recovered from by now. 7. **PW4 Twapnicol Natasha Omondi** adopted her witness statement dated 15th January 2025 as her evidence in chief. 8. She also produced all the documents in her list of documents herein that were not produced by the other witnesses as exhibits. 9. Her testimony was that the accident occurred when the matatu she had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 10. This caused the shovel’s driver to abruptly swerve to the left, thus ramming into the matatu, leading to the occurrence of the accident. 11. She conceded in cross-examination that she had recovered from the injuries she sustained during the accident. **Defendant’s Case** 1. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence. In the circumstances, the averments in the Defendant’s Statement of Defence remained mere allegations which this court will not consider in determining this case in line with the holding in **Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya [2020] eKLR,** where the court stated thus: *“Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: -* *“In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.”* **ANALYSIS AND DETERMINATION** 1. This court has duly considered the evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 2. It is common ground that the accident herein occurred, causing the Plaintiff to sustain multiple soft tissue injuries. There is no contest that the shovel was owned by the Defendant at the time of the accident. 3. Further, there is no evidence on record to show that at the time of the accident, the shovel’s driver was not driving the shovel for the benefit of the Defendant at the time of the accident herein. Therefore, in the event this court finds the shovel’s driver negligent for the occurrence of the accident, the Defendant will be vicariously liable for their driver’s acts or omissions. 4. The foregoing inclines this court to find and hold that the issues that commend to this court for determination are liability and quantum. **Liability** 1. The Plaintiff’s evidence was that this accident occurred when the matatu she had boarded, which was headed towards the Bungoma general direction, was knocked by the shovel, which was overtaking the matatu, only for the shovel’s driver to realize that there was an oncoming truck in the right-hand lane. 2. She added that the oncoming truck forced the shovel to attempt to go back to its lane, only for the shovel to ram into the matatu, thus causing the accident. 3. The Defendant submitted that the accident was caused by the Plaintiff and the matatu driver’s negligence. 4. It is noteworthy that the Defendant did not lead any evidence to substantiate the alleged negligence on the part of the matatu driver and the Plaintiff. Submissions are not evidence. 5. The Defendant also submitted that in the absence of the police investigation’s diary, sketch map, OB extract, and police file, the evidence on record was not sufficient to establish negligence on the part of the Defendant’s driver. 6. It is evident from the evidence on record that the Plaintiff’s testimony on the circumstances under which the accident occurred was not controverted by the Defendant. The said evidence remained unshaken even after cross-examination by the Defendant’s counsel. 7. The Plaintiff witnessed the accident. His evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 8. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 9. In this jurisdiction, direct evidence by a passenger on the circumstances under which an accident occurred is always deemed sufficient to establish negligence in a road traffic accident (see **Mwaka v Nthenya (Civil Appeal 1 of 2018) [2023] KEHC 23923 (KLR)).** 10. The Plaintiff’s uncontroverted evidence on the circumstances under which the accident occurred shows that the accident herein occurred when the shovel’s driver overtook the matatu when it was not safe to do so, only for the said driver to ram into the matatu as he tried to go back to his lane. 11. The above uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence on the part of the shovel’s driver, which could only be dislodged by the shovel’s driver. Unfortunately, the Defendant chose not to call the shovel driver as a witness in this case. 12. The foregoing shows that the Defendant deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 13. In **Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR,** the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: *“ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:* *‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’* *Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”* 1. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify only leads to the inevitable conclusion that had the said driver testified, his evidence would have been adverse to the Defendant. 2. In any event, it is also not lost to this court that the Plaintiff, who was only a passenger in the matatu, was neither in control of the matatu nor the shovel. Furthermore, there is no evidence on record to suggest that the Plaintiff was negligent at the time of the accident. 3. In the circumstances, the Plaintiff cannot be blamed for the occurrence of the accident in line with the holding in **Wilter Chemutai Torongei Vs. W.E. Tilley Muthaiga & Anothim (2017) eKLR,** where the court held; *“The only time a passenger maybe held to be liable in my view, is when for instance it is shown that he did not fasten his seat belt or was trying to jump out of the vehicle when it has not stopped. That way, some contributory negligence could be attached to him.”* 1. The matatu driver and the shovel driver owed the Plaintiff a duty of care to ensure that the Plaintiff reached her destination safe and sound. That duty of care was breached when the accident occurred, causing multiple soft tissue injuries to the Plaintiff. 2. The long and short of it all is that the Defendant failed to dislodge the prima facie case of negligence established against them by the Plaintiff. In the circumstances, the Defendant must be held liable for their driver’s negligence. 3. The foregoing inclines this court to find and hold the Defendant 100% liable for the occurrence of the accident. **Quantum** 1. **General Damages for Pain and Suffering** 2. The Plaintiff pleaded in paragraph 6 of her Plaint that the accident caused her to sustain sustained blunt injuries to the head, neck, chest, abdomen, bruises on the left knee, and cut wounds on the left leg and right foot. 3. The Plaintiff’s medical evidence on record produced by PW1 and PW3 corroborated the Plaintiff’s averments in the Plaint on the injuries she sustained as a result of the accident. 4. It is against this backdrop that this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident herein caused her to sustain blunt injuries to the head, neck, chest, abdomen, bruises on the left knee, and cut wounds on the left leg and right foot. 5. The law in this jurisdiction on the award of damages for accident injuries is that, in awarding damages, is that comparable injuries should, as far as possible, be compensated by comparable awards. The Court of Appeal in **Stanley Maore vs Geoffrey Mwenda (2004) eKLR,** held: - *“...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. 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 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. In the circumstances, this court makes an award of Kshs. 150,000/= under this head. 5. **Special Damages** 6. The Plaintiff pleaded for Special Damages of Kshs. 7,000/=. The receipts produced by the Plaintiff proved the pleaded Special Damages. 7. It is against this backdrop that this court makes an award of Kshs. 7,000/= 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%* 3. *General Damages…………………...………Kshs. 150,000/=* 4. *Special Damages……………………...…….Kshs. 7,000/=* ***Total Award……………………… Kshs. 157,000/=*** 1. The General Damages will accrue interest at court rate from the date of this judgment till payment in full while the 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 17th day of March 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Shikhu for the Plaintiff Ms. Kinyanjui for the Defendant C/A: Mr. Rioba