Mboje v Buscar EA Limited & another (Civil Case 313 of 2018) [2026] KEMC 311 (KLR)

c. 3. 4. Permitting motor vehicle registration number KCF 250Y to collide with motor vehicle registration number KAU 644Z (wrongly indicated as KAQ 055S). The plaintifi further pleaded the following particulars of negligence against the 2nd defendant: a. Permitting motor vehicle registration number KAU 644Z to stall in the middle of the road; b. Negligently and carelessly parking motor vehicle registration number KAU 644Z on the road; c. Driving an unroadworthy motor vehicle. The plaintifi pleaded the particulars of injuries and those of special damages and prayed for judgment against the defendants for: a. General damages; b. Special damages in the sum of Ksh. 88,820/=; c. Costs and interest d. Such or further relief the court deems fit to grant. The 2Nd Defendant’s Defence 5. The 2nd defendant entered appearance on 13/2/2019 and filed a written statement of defence on the same day. The 2nd defendant denied that it was the owner of motor vehicle registration number KAU 644Z. The 2nd defendant admitted that there was an accident on 4/7/2018 involving motor vehicles registration numbers KCF 250Y and KAU 644Z but denied the allegations of negligence attributed to its driver or itself. The 2nd defendant averred that the accident was wholly caused by the negligence of the driver of the 1st defendant in controlling, managing and/or driving motor vehicle registration number KCF 250Y. 6. The 2nd defendant pleaded the following particulars of negligence against the driver of motor vehicle registration number KCF 250Y: 7. a. Driving motor vehicle registration number KCF 250Y too fast under the circumstances; b. Driving without due care and attention to other road users and in particular vehicle registration number KAU 644Z; c. Overtaking or attempting to overtake other vehicles on the face of other oncoming vehicles without due regard to his own safety or other road users; d. Failing to swerve to his lane, to slow down or in any way control motor vehicle KCF 250Y so as to avoid the accident; e. Driving on the wrong side of the road; f. Failing to follow the trafic rules and the Highway code; g. Causing the said accident. The 2nd defendant prayed that the suit against it be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 2

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The 1St Defendant’s Defence 8. 9. 10. The 1st defendant entered appearance on 23/4/2019 and filed a statement of defence on the same day. The 1st defendant denied being the registered owner of motor vehicle registration number KCF 250Y, denied being vicariously liable for the acts or omissions of the driver thereof. The 1st defendant denied that the plaintifi was a lawful passenger in motor vehicle registration number KCF 250Y, denied the occurrence of the accident and denied the particulars of negligence pleaded against it. In the alternative, the 1st defendant averred that if the accident occurred, then the same was caused solely and/or substantially contributed to by the negligence of the plaintifi. The 1st defendant pleaded the following particulars of negligence against the plaintifi: a. Failing to take any or any adequate precaution for her own safety; b. Failing to heed the instructions on safety precautions when travelling; c. Failing to heed the trafic rules and regulations when travelling. The 1st defendant further pleaded in the alternative that if the accident occurred, then the same was solely and/or substantially contributed to by the negligence of the driver of motor vehicle registration number KAU 604Z/ZE 4984. The 1st defendant pleaded the following particulars of negligence against the said driver: a. Failing to have any or any suficient regard for the safety of the users of the said road by driving without due care and attention; b. Failing to keep any or any proper look out for other vehicles that might reasonably have been on the said road; c. Endangering the lives of other road users in his manner of driving; d. Having total disregard for the trafic rules; e. Driving on the wrong side of the road; f. Driving without due care and attention. The 1st defendant denied the particulars of injuries and special damages and prayed that the suit against it be dismissed with costs. I must point out that the memorandum of appearance for the 1st defendant were filed after interlocutory judgment had been entered against them. However, an application to set aside the judgment was filed and the same was allowed. The Evidence The Plaintifi ’s Case 11. Three witnesses were called on behalf of the plaintifi. PW 1 Doctor Hanif Mohammed testified that he examined the plaintifi following the accident and prepared a medical report. The witness produced the medical report as well as the payment receipt for the same in evidence. PW 2 was the plaintifi herself. She adopted her statement filed in court as part of her testimony. The plaintifi testified that on 4/7/2018 she was a passenger aboard motor vehicle registration number KCF 250Y, travelling from Nairobi to Voi. That upon reaching Civicon area along Nairobi-Mombasa road, she was woken up by a commotion and screams. She then realized that the motor vehicle she was in had collide with motor vehicle registration number KAU 644Z. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 3

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12. The plaintifi stated that she tried to stand up but she could not. She then realised that her leg was fractured at the right knee. She looked out through the window and saw that motor vehicle registration number KAU 644Z was on fire. The plaintifi was rescued before the bus caught fire. She was later taken to hospital. It was the evidence of the plaintifi that the driver of the motor vehicle she had boarded overtook carelessly and caused a head collision with the other motor vehicle. The plaintifi produced her claim supporting documents. 13. PW 3 Police Constable Benson Ngunjiri testified that he was from Sultan Hamud police station. The witness confirmed the occurrence of the accident involving the two motor vehicles. PW 3 confirmed that the plaintifi was one of the passengers in KCF 250Y on the material night. The witness produced the police abstract in evidence. He stated that the investigating oficer blamed the driver of KCF 250Y for the accident. That he was overtaking when the collision occurred. The 1st Defendant’s Case 14. The 1st defendant did not call any witness. However, a medical report was produced in evidence by consent. The 2nd defendant’s Case The 2nd defendant did not also call any witness. Main Issues For Determination 15. In my opinion, the main issues for determination are as follows: i. Whether an accident occurred on 4/7/2018 at Civicon area along Mombasa-Nairobi highway involving motor vehicles registration numbers KCF 250Y and KAU 644Z; ii. Whether the 1st defendant was the owner of motor vehicle registration number KCF 250Y at the material time; iii. Whether the 2nd defendant was the owner of motor vehicle registration number KAU 644Z/ ZE 4084 at the material time; iv. Whether the plaintifi was involved in the accident; v. Who is to blame for the accident? vi. Whether the plaintifi sustained injuries and sufiered loss as a result of the accident; vii. Whether the plaintifi is entitled to damages and if so, the nature and quantum thereof; viii. Who should bear the costs of this suit? The Plaintifi's Submissions 16. The plaintifi relied on the evidence on record and submitted that she had proven her case to the required standard. She contended that her evidence was not rebutted by the defendants. Quite interestingly, the plaintifi urged the court to find both defendants 100% liable. It is not practical for the court to find both defendants 100% liable yet they have competing interests. If the court were to find the defendants liable, then liability must be apportioned between the defendants. They cannot jointly be held 100% liable. On general damages, the plaintifi proposed a sum of Ksh. 1,500,000/= and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 4

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relied on alleged authorities whose copies were not filed. The plaintifi prayed for special damages of Ksh. 88,820/= as well as costs of the suit. The 1St Defendant’s Submissions 17. The 1st defendant submitted that since it was a head on collision, liability should be apportioned between the two defendants equally. That the police oficer did not witness the accident and neither of the drivers was called to testify. The 1st defendant submitted that the plaintifi was asleep when the accident occurred and was only woken up by screams. At some point in the submissions, it was not clear whether the 1st defendant was seeking dismissal of the suit or equal apportionment of liability as between the defendants. 18. On quantum, the 1st defendant proposed a sum of Ksh. 200,000/= and relied on the following authorities: 19. a. Simon Mutisya Kavii v Simon Kigutu Mwangi[2013] eKLR, wherein the plaintifi and appellant in the appeal sustained a compound comminuted fracture of left tibia fibula with severe friction burns on the left thigh and leg. The trial court awarded Ksh. 200,000/= in general damages in 2007. On appeal, the award was afirmed on 25/3/2013; b. Karanja v Wambui [2023] KEHC 25556 (KLR), wherein the plaintifi and respondent in the appeal sustained soft tissue injuries. The trial court awarded Ksh. 1,000,000/= in general damages on 9/9/2021. On appeal, the award was reduced to Ksh. 250,000/= on 17/11/2023. On special damages, the 1st defendant relied on section 10 of the Insurance (Motor Vehicle Third Party Risks) Act and submitted that the proposal on general damages is inclusive of any special damages. The 2nd Defendant’s Submissions 20. The 2nd defendant relied on the evidence of the plaintifi and submitted that from the evidence, the driver of the 1st defendant’s motor vehicle caused the accident. That the said driver was to be charged with causing death by dangerous driving but he died in the accident. The 2nd defendant urged the court to dismiss the suit against it and hold the 1st defendant 100% liable. The 2nd defendant argued that the plaintifi had failed to prove negligence against it. The 2nd defendant attached copies of authorities in support of its case. 21. On quantum, the 2nd defendant proposed a sum of Ksh. 300,000/= and relied on three authorities but only attached a copy of the following authority: a. 22. Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR, wherein the plaintifi and respondent in the appeal sustained lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises on the back extending to the right lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibula fibula and segmental distal fracture of the right femur. The trial court awarded Ksh. 1,000,000/= in general damages on 14/9/2017. On appeal, the award was reduced to Ksh. 450,000/= on 12/10/2018. On special damages, the 2nd defendant argued that the plaintifi had only proven Ksh. 80,700/=. Analysis And Determination 23. I have carefully considered the evidence on record and given due regard to the submissions made by the plaintifi as well as the authorities relied upon. From the testimony of the plaintifi and PW 3, which evidence was not controverted, I have no doubt that an accident occurred on 4/7/2018 involving motor https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 5

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vehicles registration numbers KCF 250Y and KAU 644Z/ZE 4084 at Civicon area along MombasaNairobi highway. The 2nd defendant admitted the occurrence of the accident in its statement of defence. The plaintifi produced in evidence a copy of records from the Registrar of motor vehicles which clearly indicates that the 1st defendant was the registered owner of motor vehicle registration number KCF 250Y as at 13/10/2018. 24. There is also another copy of records indicating that the 2nd defendant was the registered owner of motor vehicle registration number KAU 644Z as at 15/10/2018. The copy of records produced by the plaintifi indicates that trailer registration number ZE 4084 was registered in the name of Shreeji Enterprises (Kenya) Limited as at 15/10/2018. The police abstract produced in evidence indicates that the 1st defendant was the owner of motor vehicle registration number KCF 250Y at the time of accident. Section 8 of the Traffic Act provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. There is no contrary evidence and as such, I find no dificulty in finding that the 1st defendant was the owner of motor vehicle registration number KCF 250Y whereas the 2nd defendant was the owner of motor vehicle registration number KAU 644Z at the material time. 25. The plaintifi testified that she was involved in the accident as a passenger in motor vehicle registration number KCF 250Y. This information was confirmed by PW 3 who testified on the police records. The police abstract produced in evidence indicates that the plaintifi was involved in the accident. The plaintifi also produced a copy of her bus ticket which confirmed that she was a passenger in motor vehicle registration number KCF 250Y on the material day. This evidence was not rebutted by the defendants. It is thus my finding that the plaintifi was involved in the accident as a passenger. Liability 26. In as much as the plaintifi was a passenger in motor vehicle registration number KCF 250Y, she did not witness how the accident occurred. She was asleep and was woken up by screams from the passengers. The only acceptable evidence from the plaintifi is that the two motor vehicles collided. PW 3 was not the investigating oficer in respect of the accident. He never visited the scene. In fact, he had not been posted to Sultan Hamud as at the time of accident. It is the duty of the plaintifi to establish or prove negligence on the part of the defendant. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintifi must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. 27. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus: “ The burden was always on the plaintifi to prove his case on the balance of probabilities even if the case was heard on formal proof.” 28. Similarly, in the authority of Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR), the Court of Appeal held: “ We would therefore venture to suggest that before the trial court can conclude that the plaintifi’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintifi has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintifi or https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 6

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his witnesses to cross-examination and the evidence adduced by the plaintifi is thereby thoroughly discredited, judgment cannot be entered for the plaintifi merely because the defendant has not testified. The plaintifi must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintifi is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintifi to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3 Others (supra) is totally difierent from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintifi to judgement, irrespective of the quality and credibility of the evidence that the plaintifi has presented. In our view the latter proposition has no sound legal basis.” 29. In the authority of Eastern Produce (k) Limited V Christopher Atiado OSIRO [2006] KEHC 3200 (KLR), the court held: “ It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid down in the case of Kiema Mutuku v. Kenya Cargo Hauling Services Ltd. (1991) 2KAR 258, where it was held that ‘there is as yet no liability without fault in the legal system in Kenya, and a plaintifi must prove some negligence against the defendant where the claim is based on negligence’. I have in mind the description of negligence as is to be found in Salmond and Heuston on The Law of Torts 19th Edn. where it is described as ‘conduct, not a state of mind – conduct which involves an unreasonably great risk of causing damage……….negligence is the omission to do something much a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human afiairs, would do, or doing something, which a prudent and reasonable man would not do.’ (Underlining is mine) The position is laid more clearly as ‘In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby sufiered by the person to whom the duty was owing.’ (Lord Wrigur in Lochgelly Iron and Coal Co. v. M’Mullan [1934] A. C. I, 25).” 30. There was no evidence from either of the defendants. However, the plaintifi still bears the duty to prove her case on a balance of probabilities. The most important piece of evidence is the police abstract produced in evidence by PW 3. The same indicates that the driver of motor vehicle registration number KCF 250Y would have been charged with the ofience of causing death by dangerous driving but unfortunately, he succumbed from injuries sustained in the accident. As a result, the matter was referred to the insurance. According to PW 3, the police report indicated that the driver of KCF 250Y was overtaking when the collision occurred. This implies that he was overtaking when it was not safe to do so. 31. I agree that no sketch maps or other evidence from the investigation by the trafic police was adduced in evidence. I agree that such evidence would have been relevant and corroborative. Nonetheless, these are civil proceedings and not proceedings involving a trafic ofience. What the court ought to determine is whether on the strength of the evidence on record, the plaintifi has discharged her burden of proving the case against either of the defendants on a balance of probabilities. The plaintifi was a mere passenger who had no control over either of the motor vehicles. There is absolutely no evidence to show that the plaintifi was negligent in any manner. She cannot be blamed at all for the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 7

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32. In the authority of Moses Theuri Ndumia v I G Transporters Limited & another [2018] KECA 297 (KLR), the Court of Appeal observed: “ …….the Police Abstract form that indicated the driver of the 1st respondent’s motor vehicle was to blame for the accident. The respondents did not call any evidence to counter this evidence…………. In the absence of any evidence from the defence, we are persuaded there was preponderance of evidence by the appellant that amounted to a prima facie case and it required to be countered by the respondent.” 33. Further, in David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR), the Court of Appeal had this to say: “ When a collision occurs between two vehicles, as between them, the issue of contributory negligence and apportionment may arise. However, as between a passenger and the owners/ drivers of the two vehicles involved in the accident, liability on the part of the owners is 100% joint and several and no question of apportionment arises unless it is proved the passenger was negligent………………In the instant matter, the respondents pleaded negligence on the part of the deceased. No evidence was led to prove the alleged negligence. The doctrine of res ipsa loquitor applies in cases where the deceased or an injured person is a passenger in a motor vehicle involved in an accident. In such cases, what must be proved is the occurrence of the accident and that the person injured or deceased was a passenger in vehicle.” 31. 34. In this matter, we are satisfied that PW1 testified and tendered in evidence a police abstract proving the occurrence of the accident and establishing that the deceased was a passenger in the motor vehicle. We are fortified in our finding when we consider that the respondents did not lead any evidence to demonstrate that the 2nd respondent, as the driver of motor vehicle KAY 718S, was not negligent.” Similarly, in Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of appeal held: “ The police abstract, though not conclusive, supported the finding that the appellant’s actions caused the accident. Furthermore, the evidence showed that the appellant did not maintain a safe distance, which contributed to the collision. In Kenya Ports Authority v East African Power & Lighting Co. Ltd, (supra), it was held that a police abstract is prima facie evidence of facts reported to the police, and in the absence of contrary evidence, it can be relied upon. In this case, the appellant failed to adduce any compelling evidence to counter the police abstract or to disprove the causal link between his actions and the damage. The police abstract, while not conclusive, indicated that the appellant was at fault for the rearend collision.” 35. In the authority of Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR), Mativo J (as he then was) observed as follows: “ As stated earlier, the Respondent’s case in the lower court rested on two witnesses who were not at the scene. The Police oficer testified that a report was received at the Police Station. He was not at the scene. His testimony on how the accident occurred is not direct evidence but secondary evidence. Similarly, PW2, only learnt about the accident and went to the hospital only to find that the deceased had died. He was not at the scene. None of the two https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 8

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witnesses could give an account on how the accident occurred. None of them could give an eye witness account. Eyewitness testimony is critical in both criminal and civil trials, and is frequently accorded high status in the courtroom………………………..The evidence tendered by the Respondent in the lower court is not direct evidence. It has no probative value and in absence of further evidence connecting it with what happened at the scene, the court could not properly draw an inference or make a reasonable conclusion as to how the accident occurred. This being the quality of the evidence tendered, there was no basis at all upon which the Magistrate court reasonably make a finding that liability had been established on 100% basis as against the appellant. In fact, the Magistrate other than saying the appellant never adduced evidence, he never explained whether the evidence before him discharged the evidential burden of prove. Had the trial Magistrate appreciated that the initial evidential burden rests upon the Plaintifi, and had he carefully applied his mind to the law, he would have held that there was nothing for the appellant to rebut since the Respondent had not discharged the legal burden of prove. However, he was blinded by the mere fact that the appellant never called evidence and overlooked binding decisions cited by the appellant before him. At that point it was irrelevant that the appellant never adduced evidence at all because there was nothing to rebut. On this ground alone, I allow this appeal in its entirety.” 36. The above finding was upheld by the Court of Appeal in the authority of Wayo & another (Suing on Behalf of the Estate of Benjamin Wayo Sailoki - Deceased) v Bwire [2025] KECA 866 (KLR), wherein the Court of Appeal observed that where there is no information regarding the outcome of the investigations which were indicated to have been still pending, the police abstract cannot therefore be the basis of finding liability on the part of a party. Having analyzed the above authorities, the pertinent question is whether there is prima facie evidence of negligence on the part of either defendant that would have required them to rebut. My view is that the evidence contained in the police abstract shows that the driver of the 1st defendant’s motor vehicle was to blame for the accident. 37. The 1st defendant did not call for evidence to rebut the findings of the trafic police as indicated in the police abstract. On the other hand, there is absolutely no evidence to show that the driver of the 2nd defendant was to blame or was negligent in any manner. That being the case, there would be no reason for apportioning liability upon the driver of the 2nd defendant. Given the circumstances, I am inclined to hold the driver of the 1st defendant 100% liable for the accident. It is unfortunate that he died in the accident and in the most painful manner. The death of the driver of KCF 250Y explains why he was not charged. 38. There is no basis for apportioning liability equally between the defendants as proposed by the 1st defendant. The mere fact that a collision occurred between the two motor vehicles alone, does not warrant such finding. The unrebutted evidence is that the driver of KCF 250Y attempted to overtake when it was not safe to do so. Had the evidence not been clear as to which driver was to blame, the court would have apportioned liability equally between the deceased drivers. 39. Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 9

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40. In the case of Morgan v Launchbury [1972] ALL ER 606, it was held, inter alia, that: “ To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 41. Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR the Court of Appeal held that: “ Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 42. Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that: “ Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 43. I have already indicated that there is suficient evidence to show that motor vehicle registration number KCF 250Y belonged to the 1st defendant. There is no evidence to dispute that the person who was driving the motor vehicle was doing so in the course of his employment with or as an agent of the 1st defendant. Consequently, I find the 1st defendant 100% vicariously liable for the accident. Quantum 44. The medical evidence on record indicates that the plaintifi sustained the following injuries following the accident: i. Fracture of the lateral condoyle of the right knee; ii. Deep cuts on the left foot ; iii. Deep cuts on the left knee; iv. Deep cuts on the left ankle; and v. Soft tissue injuries on the right elbow joint. 45. There is no contrary evidence. I find that there is suficient evidence to prove that the plaintifi sustained injuries as a result of the accident. Given the finding on liability, the plaintifi is thus entitled to damages as against the 1st defendant. 46. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. This Court has to bear in mind the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 10

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principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said: “ But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 47. I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that: “ In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintifi and the defendant. …………………..the plaintifi cannot be fully compensated for all the loss sufiered but the court should aim at compensating the plaintifi fairly and reasonably but in the process should not punish the defendant.” 47. The Court of Appeal in Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730 held that: “ It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The dificult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably difierences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by difierent courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a refiection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 11

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terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.” 48. 49. The following principles are germane in assessing damages for personal injury claims: i. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries sufiered; ii. The award should be commensurate to the injuries sufiered; iii. Awards in decided cases are mere guides and each case should be treated on its own facts and merit; iv. Where awards in decided cases are to be taken into consideration then the issue of or element of infiation has to be taken into consideration; v. Awards should not be inordinately too high or too low. Based on the above principles, I proceed to assess the damages payable as follows. General Damages for pain, sufiering and loss of amenities 50. I have considered the injuries sustained by the plaintifi. The plaintifi sufiered injuries which were classified as grievous harm in the P3 form. In my opinion, the 1st authority relied upon by the 1st defendant and that relied upon by the 2nd defendant are comparable but quite old in terms of when the awards were initially made. On my part, I have further considered the following authorities: 1. Odhiambo v Obiero [2024] KEHC 15700 (KLR). The plaintifi and respondent in the appeal sustained swelling and tenderness on the head, tenderness of the neck, back injury, chest injury, cut wound on the right leg and fracture of the right tibia. The trial court awarded Ksh. 700,000/= on 7/12/2023. On appeal, the award was afirmed on 9/12/2024. 2. Julie Akoth Onyango v Daniel Otieno Owino & another [2020] eKLR. The plaintifi and appellant in the appeal sustained a compound fracture of the tibia and fibula of the left leg, cuts on both legs, pain in the thighs and left hand. Ksh. 600,000/= was awarded in general damages on 19/6/2019. On appeal, the award was reduced to Ksh. 500,000/= on 29/5/2020. 51. Given the nature of the injuries sustained by the plaintifi herein and the age of the awards in the above authorities coupled with the vagaries of infiation, I find that an award of Ksh. 800,000/= in general damages would sufice. I award the same. Special Damages 52. The plaintifi pleaded special damages as follows: a. Medical report……………………………………...…Ksh. 3,000/= b. Medical expenses…………………………………..Ksh. 82,000/= c. Certificate of search…………………………….…..Ksh. 2,820/= d. Travelling expenses………………………………….Ksh. 1,000/= Total……………………………………………………..Ksh. 88,820/= https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 12

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52. It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said: “ It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 53. In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintifi in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratclifie v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage: “ The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 54. No receipts were produced to prove the claims for the motor vehicle search certificates and traveling expenses. Consequently, special damages pleaded and proved amount to Ksh. 85,000/=. I award the same. Disposition 55. In summary, I hold that the plaintifi has proven his case on a balance of probabilities as against the 1st defendant. Consequently, I make the following awards: 1. General damages for pain, sufiering and loss of amenities..........Ksh. 800,000/= 2. Special damages………………………………………………………………….……….Ksh. 85,000/= Total…………………………………………………………………..…..Ksh. 885,000/= 56. 57. For avoidance of doubt, the suit against the 2nd defendant is hereby dismissed with costs to be borne by the plaintifi. The plaintifi is also awarded interest on the damages as well as costs of the suit as against the 1st defendant. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that: (1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 13

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First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380. Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely: 58. a. The period from the date the suit is filed to the date when the Court gives its judgment; and b. The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows: It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.” (Emphasis supplied) 59. From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with efiect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on special damages, from the date of filing suit to the date of judgment/decree. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 16TH DAY OF JUNE, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/311/eng@2026-06-16 14

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