Makhanu v Abdulahi & another (Civil Case E266 of 2025) [2026] KEMC 717 (KLR)
The bottom line
#A Bungoma court ruled a rear-end driver 100% liable after he offered no evidence, awarding the injured motorist Kshs. 86,740 plus costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants were liable (and to what degree) for the accident of 5th April 2025
- 2.Quantum of general damages for pain and suffering
- 3.Quantum of special damages
Key legal issues
#Liability of a driver who hits another vehicle from behind
Defendants held 100% liable; the prima facie negligence from a rear-end collision was not dislodged because the Defendants led no evidence.
The Plaintiff gave uncontroverted direct eyewitness evidence that his vehicle was hit from behind. Following Atanga v Rojeh and Orioki v Kevian Kenya Limited, a rear-end collision creates a prima facie case of negligence. The evidential burden then shifted to the Defendants, who called no witnesses; the court drew an adverse inference under section 112 of the Evidence Act that their evidence would have been adverse to them.
Whether submissions can substitute for evidence
No - submissions are not evidence and cannot dislodge a prima facie case.
The court emphasized that the Defendants' burden to rebut negligence had to be discharged through evidence within their knowledge or control, not through written submissions, however eloquent or rich in authorities.
Quantum of general damages for moderate soft tissue injuries
Kshs. 80,000/= awarded, following a comparable recent award in Ondicho v Mosigisi.
The Plaintiff's medical evidence proved moderate soft tissue injuries. The court applied the comparable-injuries principle, rejected both parties' authorities as inapposite (Defendant's being dated 2019/2021 and Plaintiff's involving graver injuries), and adopted an award of Kshs. 80,000/= for similar injuries in Ondicho v Mosigisi.
Proof of special damages
Only Kshs. 6,740/= of the pleaded Kshs. 18,810/= was proved by legible receipts.
Special damages must be specifically pleaded and proved. Some receipts were illegible; only legible receipts for the medical report (Kshs. 5,000/=), copy of records (Kshs. 550/=), and hospital medical expenses (Kshs. 1,190/=) proved the pleaded special damages, totalling Kshs. 6,740/=.
Legal principles established
#- A driver who hits another vehicle from behind bears a prima facie case of negligence which he must rebut with evidence, not submissions.
- Where a party fails to lead evidence within their knowledge or control, the court may draw an adverse inference.
- Comparable injuries should, as far as possible, be compensated by comparable awards.
Court orders
#- 1.Judgment entered against the Defendants jointly and severally with liability at 100%
- 2.General damages of Kshs. 80,000/= awarded
- 3.Special damages of Kshs. 6,740/= awarded (total award Kshs. 86,740/=)
- 4.General damages to accrue interest at court rate from date of judgment till payment in full
- 5.Special damages to accrue interest at court rate from date of filing suit till payment in full
- 6.Plaintiff awarded costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over the tort claim (not expressly stated in the judgment)
Relief refused
#General damages as pleaded/claimed at higher amounts (Plaintiff sought Kshs. 650,000/=)
Plaintiff's cited authorities involved more serious injuries; court instead followed a comparable-injuries award
Special damages in the full pleaded sum of Kshs. 18,810/=
Some supporting receipts were illegible and only legible receipts proved part of the pleaded amount
Costs
The Plaintiff will have the costs of this suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is suficient evidence to rebut this presumption.
Submissions are not evidence, no matter how fiowery and rich in law or authorities they may be.
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.
The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms:
Issues in the judgment
#The judgment heading/order refers to 'the Defendant' in the singular in places while the title refers to 'Defendants' in the plural
The names of the Defendants are not disclosed anywhere in the judgment; the case number and neutral citation are also not stated
The Defendants filed no defence yet the judgment refers to 'the parties' submissions' and 'written submissions on record on quantum' by the Defendants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makhanu v Abdulahi & another (Civil Case E266 of 2025) [2026] KEMC 717 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/717/eng@2026-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.