Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR)
The bottom line
#A Bungoma court found both drivers equally to blame for a road accident because the evidence could not prove who was negligent, halving the compensation awarded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Liability for the occurrence of the accident
- 2.Quantum of damages (general damages for pain and suffering, special damages, and future medical expenses)
Key legal issues
#Liability for the road traffic accident
The Plaintiff and the Defendant were found equally to blame (50%:50%) because the contradictory oral testimony, the inadmissible uncertified OB extract and the absence of corroborative evidence left the court unable to apportion blame otherwise
The court found the accident and injuries proved but the evidence on fault contradictory. The uncertified OB extract was inadmissible, and the officer who produced it neither visited the scene nor investigated, rendering her testimony hearsay. With no sketch map, inspection report, investigating officer or independent eyewitness, the court applied the Lakhamshi principle and divided blame equally between the two drivers.
Admissibility of an uncertified OB extract and testimony of a non-investigating officer
The uncertified OB extract was inadmissible, and the testimony of a police officer who did not investigate the accident amounted to hearsay on the circumstances of the accident
DW2 conceded she did not visit the scene or investigate the accident, and the OB extract was not certified. Relying on Dikir & another v Kimary, the court held that remarks in an OB about blameworthiness are hearsay and opinion evidence inadmissible to prove facts, so the extract and DW2's testimony could not be used to determine liability.
Quantum of general damages for pain and suffering
An award of Kshs. 200,000/= for multiple moderate soft tissue injuries with scars
The court applied the principle that comparable injuries attract comparable awards. Guided by Surian Enterprises Ltd v Mary Bahati Peter (Kshs. 150,000/=), Oloo v Arika & another (Kshs. 150,000/=) and Quick Shuttle Sacco v Joel & another (Kshs. 250,000/=), it found awards of Kshs. 150,000/= to Kshs. 250,000/= usual for such injuries and selected Kshs. 200,000/=.
Special damages and future medical expenses
Pleaded special damages of Kshs. 4,550/= were proved by receipts; Kshs. 10,000/= awarded for future painkillers but no award for psychosocial support
The medical report receipt of Kshs. 4,000/= and the NTSA receipt of Kshs. 550/= proved the pleaded special damages. Although Dr. Ekesa did not testify on the cost and duration of future treatment, the court exercised its discretion and awarded Kshs. 10,000/= for painkillers, which the Plaintiff testified he still uses, but made no award for psychosocial support as it was not substantiated.
Legal principles established
#- 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
- The contents of an OB extract on the circumstances of an accident, if not produced by the accident's investigating officer, remain hearsay evidence and cannot prove how the accident took place
- Comparable injuries attract comparable awards in assessing general damages
Court orders
#- 1.Judgment entered against the Defendant with liability apportioned 50%:50% between the Plaintiff and the Defendant
- 2.General damages of Kshs. 200,000/= awarded
- 3.Special damages of Kshs. 4,550/= awarded
- 4.Future medical expenses of Kshs. 10,000/= awarded for painkillers
- 5.Net award of Kshs. 107,225/= after deduction of 50% liability
- 6.General damages and future medical expenses to accrue interest at court rate from the date of judgment till payment in full; special damages to accrue interest at court rate from the date of filing suit till payment in full
- 7.Plaintiff awarded the costs of the suit subject to the 50% liability ratio
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 negligence claim pleaded in the Plaint dated 26th April 2025
Relief refused
#Future medical expenses for psychosocial support
The Plaintiff did not testify that he needed future medical expenses for psychosocial support, and Dr. Ekesa did not testify on the cost and duration of future medical expenses
Full (100%) recovery of the damages awarded
Liability was apportioned equally, so the award was reduced by 50%
Costs
The Plaintiff will have the costs of this suit subject to the ratio of liability herein (50%:50%).
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.
It is against this backdrop that this court finds the Plaintiff and the Defendants equally to blame for the occurrence of the accident.
The failure to certify the said OB extract rendered it inadmissible.
Therefore, the contents of the OB extract produced by DW2 and DW2's testimony on the circumstances under which the accident occurred cannot be used to determine liability in this case.
Judgment is entered against the Defendant in the following terms:(a) Liability………………………………50%:50%
The Plaintiff will have the costs of this suit subject to the ratio of liability herein.
The General Damages and future medical expenses will accrue interest at court rate from the date of this judgment till payment in full, while Special Damages will accrue interest at court rate from the date of filing this suit till payment in full.
Issues in the judgment
#Plaintiff's evidence is attributed inconsistently: the narrative describes PW2 (Samuel Noah Masoso) as 'PW1' in paragraph 24, while PW1 was PC Isaac Kimani Njuguna
Paragraph 4 of the judgment states the Defendant pleaded in the alternative that the accident 'was caused by the Defendant's negligent acts', which contradicts the Defendant's case blaming the Plaintiff - apparently a misprint for 'Plaintiff's negligent acts'
The citation for Oloo v Arika & another shows a judgment year of 2026 [2026] KEHC 2889 (KLR) while the suit is a 2024 appeal, and the judgment is dated 28th July 2026; dates as printed retained
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masoso v Ena Investments Ltd (Civil Case E180 of 2025) [2026] KEMC 757 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 26th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/757/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.