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MagistratePartially AllowedNot stated in the judgment (Plaint dated 2nd April 2025, Bungoma)· [2026] KEMC 750 (KLR)

Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)

Magistrates' Court (Chief Magistrate's Court), Bungoma
21 July 2026
TOT.O. Omono
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Bungoma court halved a road accident claim: with no solid evidence of who caused the crash, both drivers were held equally to blame.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants, the owners of motor vehicle KBY 494 X/ZE 6766, seeking general damages, special damages of Kshs. 6,550/=, costs and interest for injuries sustained on 31st December 2024 when the Defendants' vehicle, driven by their agent DW1, allegedly rammed into his vehicle along the Malaba–Bungoma road at Zerozero area. The Defendants denied negligence and blamed the Plaintiff. The court framed two issues: liability and quantum. On liability, both parties called police officers who were not the investigating officers, so the OB entries were held to be hearsay; the Samba Services investigations report, only marked for identification, was held to have no evidential weight per Mwige v Kiguta. With only contradictory oral testimony from the drivers, the court applied the Lakhamshi principle, as endorsed in Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd, that where evidence is insufficient to establish any party's negligence the parties must be held equally to blame, and apportioned liability 50%:50%. On quantum, applying the comparable-injuries principle in Stanley Maore v Geoffrey Mwenda and awards of Kshs. 150,000/= to 250,000/= in comparable cases, the court awarded Kshs. 200,000/= general damages for blunt injuries assessed as harm, plus proved special damages of Kshs. 6,550/=. Judgment was entered for Kshs. 103,225/= net of the 50% liability, with interest and costs to the Plaintiff subject to the liability ratio.

Key legal issues

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01

Liability where evidence of the circumstances of the accident is contradictory and inadequate

Holding

The parties were found equally to blame on a 50:50 basis

Reasoning

Both police witnesses were not the investigating officers, so the OB entries were hearsay; the Samba Services investigations report was only marked for identification and carried no evidential weight. The only evidence was contradictory oral testimony by the plaintiff and DW1 blaming each other. Applying Lakhamshi v Attorney General, where evidence is insufficient to establish any party's negligence, blame is divided equally.

p. 5
02

Quantum of general damages for blunt injuries assessed as harm

Holding

General damages awarded at Kshs. 200,000/=

Reasoning

Guided by the principle that comparable injuries should attract comparable awards, the court considered awards of Kshs. 150,000/= to 250,000/= for similar moderate multiple soft tissue injuries and settled on Kshs. 200,000/= for blunt injuries to the forehead, parietal scalp, neck and right shoulder assessed as harm.

p. 6
03

Proof of special damages

Holding

Special damages of Kshs. 6,550/= proved and awarded

Reasoning

The plaintiff pleaded Kshs. 6,550/= in the Plaint and proved it with the receipt for Kshs. 6,000/= for the medical report and the NTSA receipt for Kshs. 550/=.

p. 7

Legal principles established

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  • Where evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must hold the parties equally to blame
  • Contents of an OB extract on the circumstances of an accident, produced by someone other than the investigating officer, are hearsay and inadmissible to prove liability
  • A document only marked for identification is not part of the evidence a court may use in making its decision

Court orders

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  1. 1.Judgment entered against the Defendants jointly and severally with liability apportioned 50%:50%
  2. 2.General damages of Kshs. 200,000/= awarded
  3. 3.Special damages of Kshs. 6,550/= awarded
  4. 4.Net award of Kshs. 103,225/= after 50% reduction
  5. 5.General damages to accrue interest at court rate from date of judgment till payment in full; special damages to accrue interest at court rate from date of filing suit till payment in full
  6. 6.Plaintiff to have costs of the suit subject to the ratio of liability
Jurisdiction invoked
Original civil suit on negligence before the magistrates' court (civil jurisdiction); no specific provision stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waweru v Kyoga Hauliers (K) Ltd & another (Civil Case E144 of 2025) [2026] KEMC 750 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 2nd April 2025, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/750/eng@2026-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.