Mambo v Khaoya & another (Civil Case E285 of 2025) [2026] KEMC 710 (KLR) (30 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E285 OF 2025** **ZUBEIR MUSA MAMBO………………………………………..……...……………PLAINTIFF** **VERSUS** **PIUS KHAOYA & ANOTHER……………………….……….……………………………………DEFENDANTS** **JUDGMENT** 1. The Plaintiff instituted this suit through a Plaint dated 12th June 2025, where the Plaintiff prayed for judgment against the Defendants jointly and severally for:- 2. *General damages for pain and suffering* 3. *Special damages of Kshs. 18,750/=* 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 averred that he was riding motorcycle registration number KMDG 259 R (“the motorcycle”) on 22nd September 2024 along Bungoma – Kanduyi road near Blue Waves area when the motorcycle was hit by the 2nd Defendant’s motor vehicle registration number KAS 395 E (“the motor vehicle”), which caused him to sustain severe injuries, loss and damage, hence this suit. 8. The Plaintiff further averred that the accident was caused by the Defendants’ negligent acts and omissions as set out in paragraph 5 of the Plaint. 9. On the Defendants part, they entered appearance and filed a joint Statement of Defence dated 17th July 2025 denying all the averments in the Plaint save for the parties’ descriptive averments and this court’s jurisdiction to hear and determine this matter. 10. The Defendants pleaded in the alternative that, if at all, the accident herein occurred, then the same was caused or substantially contributed by the Plaintiff’s negligent acts enumerated in paragraph 7 of their Statement of Defence. The Defendants urged this court to dismiss the Plaintiff’s case with costs. 11. The Plaintiff responded by filing a Reply to the Statement of Defence dated 13th August 2025 reiterating his averments in the Plaint. 12. It is against this background that this suit was set down for hearing for the parties to prove the averments in their respective pleadings on a balance of probabilities. 13. 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 investigated the circumstances under which the accident occurred. He confirmed that the accident herein occurred and that the same was reported at Bungoma Police Station. 2. His testimony was that the accident occurred when the motorcycle and the motor vehicle were headed to Kanduyi general direction from Bungoma general direction only for the motor vehicle to lose control and hit the motor cycle from behind. 3. He produced the abstract dated 18th March 2025 as an exhibit. 4. In cross-examination, he stated that he visited the scene of the accident when he found the motor vehicle and the debris arising from the accident on the left side of the road as one faces Kanduyi general direction. 5. **PW2 Zubeir Musa Mambo** adopted his witness statement dated 12th June 2025 as his evidence in chief. His testimony was that the accident occurred when the motorcycle he was riding and the motor vehicle were headed towards Kanduyi general direction only for the motor vehicle to hit his motorcycle from behind. 6. He also produced all the documents listed in his list of documents herein as exhibits, save for the police abstract. 7. He added in cross-examination that he saw the motor vehicle from behind using his side mirror, and that whereas his pillion passenger screamed *“tunauawa…”,* before the accident, the impact was sudden. **Defendants’ Case** 1. The Defendants did not call any witnesses. In the circumstances, the averments in their joint Statement of Defence remain mere allegations which this court will not rely on 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 given due regard to the pleadings, evidence on record, the written submissions on record, and the authorities relied upon by the respective parties. 2. The uncontroverted evidence on record shows that the accident herein occurred, causing the Plaintiff to sustain bodily injuries. The evidence on record also proved on a balance of probabilities that the 2nd Defendant owned the motor vehicle at the time of the accident, while the 1st Defendant was the said motor vehicle’s driver at the time of the accident. 3. There is also no dispute that the 1st Defendant was the 2nd Defendant’s authorized agent at the time of the accident. Therefore, in the event this court finds the 1st Defendant negligent for the accident, the 2nd Defendant will be vicariously liable for the 1st Defendant’s negligent acts and omissions. 4. Given the above, the issues that commend to this court for determination are liability and quantum. **Liability** 1. PW2’s testimony was that the accident occurred when the motor vehicle lost control and hit his motorcycle from behind. This evidence on the circumstances under which the accident occurred was corroborated by PW1’s (the accident’s investigating officer) testimony. 2. 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. 3. 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. 4. In this jurisdiction, direct evidence by a person involved in an accident 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)).** 5. The Plaintiff’s uncontroverted direct evidence is that the motor vehicle hit his motorcycle from behind, thus causing him to sustain severe bodily injuries. This begs the question of whether such evidence was sufficient to establish negligence by the Defendants. 6. The question above was answered by Musyoki , J in **Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment)** where the learned judge expressed himself as follows:- *A person who is in control of a motor vehicle and proceeds to hit another vehicle from behind creates a burden for himself to prove that he was not negligent. In my view, the fact that he hit the other vehicle from behind creates a prima facie case of negligence against him because in normal circumstances, drivers are expected to concentrate on what is ahead of them, and unless there are exceptional causes for such an accident, the driver from behind must be blamed. In Orioki v Kevian Kenya Limited (2025) KECA 780 (KLR), the Court of Appeal held as follows; Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed on the burden om the appellant to prove that the collision was not due to his negligence’* 1. Taking cue from the authority above, it follows that the Plaintiff’s direct uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence against the Defendants. 2. The Plaintiff having established a prima facie case of negligence against the Defendants, it was incumbent upon the Defendants to dislodge the prima facie case of negligence through evidence. The Defendants did not do so. 3. The Defendants deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 4. 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. In the circumstances, it follows that the failure by the Defendants to adduce evidence on the circumstances under which the accident occurred only leads to the inevitable conclusion that had the Defendants led evidence on the circumstances under which the accident occurred, that evidence would have been adverse to their case. 2. The foregoing does not in any way mean that this court has shifted the burden of proof to the Plaintiff. This simply means that upon the Plaintiff establishing a prima facie case of negligence against the Defendants, the evidential burden shifted to the Defendants to dislodge the prima facie case of negligence established against them. 3. The upshot of the above is that this court finds the Defendants jointly and severally 100% liable for the occurrence of the accident. **Quantum** 1. **General Damages for Pain and Suffering** 2. The Plaintiff pleaded in paragraph 7 of his Plaint that the accident caused him to sustain bruises on both lips, fracture of the left humerus, blunt injury to the chest, and fracture of the left tibia/fibula (proximal). 3. The uncontroverted Plaintiff’s medical evidence contained in Dr. Sokobe’s medical report dated 22nd May 2025, the P3 form dated 17th March 2025, and the treatment notes from Bungoma County Referral Hospital proved on a balance of probabilities that the Plaintiff sustained the injuries pleaded in paragraph 7 of his Plaint. 4. In the circumstances, this court finds and holds that the Plaintiff sustained bruises on both lips, fracture of the left humerus, blunt injury to the chest, and fracture of the left tibia/fibula (proximal) as a result of the accident herein. 5. It is well settled in this jurisdiction 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. Whereas the Plaintiff filed their written submissions, the Defendants did not. 2. The Plaintiff urged this court to make an award of Kshs. 3,000,000/= under this head by placing reliance on **Mugambi v Kenya Wildlife Services (Civil Appeal E090 of 2022) [2025] KEHC 19544 (KLR)** where the court awarded Kshs. 3,000,000/= for a fracture of the radial ulna, and a fracture of the left Tibia Fibula with open wound. 3. It is imperative to note that the authority cited by the Plaintiff relates to a case arising from human - wildlife conflict where the general damages awarded in such cases are set out under section 25 of the Wildlife Conservation and Management Act. The awards of general damages set out in the said Act are not applicable in awarding damages in road traffic accidents. Therefore, the authority cited by the Plaintiff for an award of Kshs. 3,000,000/= under this head is not applicable in this case. 4. The injuries sustained by the Plaintiff herein are almost similar to the injuries sustained by the Plaintiff in **Njoga v Mwema (Civil Case E027 of 2023) [2026] KEHC 2091 (KLR),** where the court awarded general damages of Kshs. 450,000/= for fracture of the tibia, fracture of the fibula, and soft tissue injuries **Special Damages** 1. The Plaintiff pleaded in paragraph 7 of his Plaint for Special Damages of Kshs. 18,750/=. 2. One of the receipts for medical expenses produced by the Plaintiff in support of the pleaded Special Damages was illegible. 3. The legible receipts produced by the Plaintiff were the receipt for the medical report for Kshs. 6,000/=, the receipt for the copy of records from NTSA for Kshs. 550/=, and the receipt for medical expenses from Bungoma Chemist Limited for Kshs. 350/=. 4. The legible receipts produced by the Plaintiff proved Special Damages of Kshs. 6,900/=, and the same is awarded. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: - 2. *Liability………………………………………100%* 3. *General Damages…………………...………Kshs. 450,000/=* 4. *Special Damages……………………...…….Kshs. 6,900/=* ***Total Award……………………..Kshs. 456,900/=*** 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. 3. Judgment accordingly. **Read, signed, and delivered in open Court at Bungoma this 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Chebet for the Plaintiff Mr. Bosire for the Defendants C/A: Mr. Rioba