Pepela v Maingi & another (Civil Case E327 of 2025) [2026] KEMC 708 (KLR)

4. The Defendants entered appearance and filed their respective Statements of Defence putting the Plaintifi to strict proof of the averments in his amended Plaint. The Defendants pleaded in the alternative that if the accident occurred, then the same was caused by the Plaintifi’s negligent acts and omissions set out in the Statements of Defence on record. 5. In response, the Plaintifi responded to the Defendants’ Statements of Defence reiterating the averments in his Amended Plaint herein. 6. It is against this backdrop that this suit was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. Evidence Plaintifi ’s Case 7. PW1 Elias Adoka a Clinical Oficer at Bungoma County Referral Hospital, produced the Plaintifi’s P3 form and outpatient card dated 08th May 2025 as exhibits. He stated that the Plaintifi sustained a fracture of the right femur as a result of the accident. 8. PW2 Dr. Joseph Sokobe produced the Plaintifi’s medical report dated 17th June 2025 showing that the accident caused the Plaintifi to sustain a fracture of the right femur as well as blunt injuries and bruises to the forehead and the nasal passage as an exhibit. He also produced a receipt for Kshs. 6,000/ = for the medical report. 9. He added that the removal of the Plaintifi’s implants would cost Kshs. 200,000/= in a private hospital and that the Social Health Authority Insurance would pay between Kshs. 120,000/= - Kshs. 140,000/ = for the said procedure in a public hospital. 10. PW3 No. 76XXX PC Kimani Isaac Njuguna is a police oficer attached to Bungoma Police Station’s trafic department. He produced the accident’s police abstract dated 09th May 2025 showing that the accident herein was reported at Bungoma Police Station vide OB. No. 71/09/05/2025. 11. He admitted in cross-examination that the matter was still under investigation. He added that there was no indication whether the motor vehicle driver or the Plaintifi was blamed for causing the accident. He added that the motorcycle was inspected after the accident. 12. PW4 Dismas Simiyu Pepela adopted his witness statement on record as his evidence in chief. His testimony was that the accident occurred when he was driving from Muyayi general direction headed to Bungoma general direction…while the motor vehicle was behind him headed in the same direction… overtook him, notice an oncoming motorcycle…swerved back to the left…and rammed into the Plaintifi’s motorcycle’s right side….the motor vehicle encroached into his lane after failing to complete its overtaking manoeuvre, thereby knocking this motorcycle. He produced all the documents he had filed as exhibits save for the police abstract, his treatment notes, receipts, and invoices from Zion Hospital. 13. In cross-examination, he stated that the motor vehicle hit the motorcycle on the left side while overtaking his motorcycle. He denied ramming into the motor vehicle from behind. 14. PW5 Douglas Wayongo Wanjala a medic at Zion Specialist Hospital, Bungoma, produced the Plaintifi’s discharge summary, invoice for Kshs. 145,640.14/=, and two receipts for Kshs. 1,200/= as exhibits. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 2

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15. He added in cross-examination that an X-ray examination at the facility revealed that the Plaintifi sustained a fracture of the left femur as a result of the accident. Defendants’ Case 1st Defendant’s Case 16. The 1st Defendant did not call any witnesses to substantiate the averments in his Statement of Defence on record. It thus follows that the averments in the said 1st Defendant’s Statement of Defence remain mere allegations which this court cannot consider in determining this case. 2nd Defendant’s Case 17. DW1 Jacob Wamalwa Kimaiywa adopted his witness statement on record as his evidence in chief. He admitted that he was lawfully driving the 2nd Defendant’s motor vehicle at the time of the accident. He denied knocking the Plaintifi’s motorcycle. He blamed the Plaintifi for ramming into the motor vehicle from behind. He produced the motor vehicle’s Certificate of Examination and Test dated 09th May 2025 showing that the motor vehicle’s rear bumper was dented on the right side during the accident. 18. In cross-examination, he reiterated that the 2nd Defendant was his employer. He further stated that the 1st Defendant owned the 2nd Defendant. He reiterated that the motor vehicle had not been involved in any accident before the accident herein. Analysis and Determination 19. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. 20. It is common ground that the accident herein occurred and that the said accident caused the Plaintifi to sustain bodily injuries. In the circumstances, the issues which commend to this court for determination are liability and quantum. Liability 21. The Plaintifi relied on his own testimony in blaming DW1 for causing the accident. His evidence was that the accident occurred when DW1 was unable to complete an overtaking manoeuvre, only for the motor vehicle to hit the motorcycle on the right side when it suddenly swerved to the left to avoid hitting the oncoming motorcycle. 22. DW1, on his part, testified that the Plaintifi caused the accident by ramming into the motor vehicle from behind. DW1 produced the motor vehicle’s Certificate of Examination and Test dated 09th May 2025 showing that the motor vehicle’s rear bumper was dented on the right side during the accident in support of his testimony that the Plaintifi rammed into the motor vehicle from behind. 23. The evidence in paragraphs 21 and 22 above is the only evidence on the circumstances under which the accident occurred. 24. Before delving into who is to blame for the accident, the 1st Defendant submitted that he was not a proper party to this suit since he was not the motor vehicle’s beneficial owner at the time of the accident. 25. A reading of the motor vehicle’s copy of records herein shows that the 1st Defendant was the motor vehicle’s registered owner at the time of the accident. The motor vehicle’s insurance sticker filed by the Plaintifi shows that the 2nd Defendant was the motor vehicle’s beneficial owner at the time of the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 3

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accident. DW1 confirmed in his testimony that the 2nd Defendant was the motor vehicle’s beneficial owner. 26. The law in this jurisdiction is that the mere fact that one is the motor vehicle’s registered owner does not automatically make such a person vicariously liable for his motor vehicle’s driver’s negligent acts or omissions. This was restated by the Court of Appeal in Issa Transporters Limited v Tsama (Civil Appeal 107 of 2019) [2021] KECA 296 (KLR) while citing with approval the decision in Joseph Cosmas Khayigila v Gigi & Co. Ltd & another Civil Appeal No. 119 of 1986 wherein the test for establishing vicarious liability was stated as follows: “ In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.” 27. Similarly, in Equator Distributors v Joel Muriu & 3 others [2018] eKLR the Court of Appeal cited with approval the dicta in Anyanzwa & 2 others v Luigi De Casper & another [1981] KLR 10 where it was held that; “vicarious liability depends not on ownership but on the delegation of tasks or duty.” 28. DW1’s uncontroverted evidence is that he was the 2nd Defendant’s driver at the time of the accident. This means that based on DW1’s testimony, only the 2nd Defendant can be held vicariously liable for DW1’s negligent acts or omissions. 29. However, it is not lost to this court that DW1 stated that the 1st Defendant owns the 2nd Defendant. The 2nd Defendant is a private school. This begs the question of whether the 1st Defendant being the 2nd Defendant’s owner is still a proper party to this suit. 30. Ong’udi J (as she then was) answered the question above in TJO (Suing as father and next friend of NM (Minor) v Riara Springs Girls’ High School (Petition 468 of 2019) [2022] KEHC 15456 (KLR). This court reproduces Ong’udi J’s analysis on this issue in extensio for the parties’ benefit: “ 41. The respondent contested its eligibility as a proper party in this suit. It was argued that the school does not have the requisite legal capacity to sue or be sued. The petitioner in response deposed that article 260 of the Constitution defines a person to include a company, association, or other body of persons whether incorporated or unincorporated. As such it is the Basic Education Act, No 14 of 2013 under which the respondent is registered and licensed as an organization to undertake matters relating to basic education and training making it a proper party for purposes of the present petition. In essence the issue this court must interrogate is how a private school is to sue or be sued determining whether the respondent is a proper party in this suit. 42. The Basic Education Act, 2013 that governs basic education in Kenya makes known in its preamble that it is an Act of Parliament to give efiect to article 53 of the Constitution and other enabling provisions…The respondent made known that it is a private school, as defined under section 2 of the Act which means a school established, owned or operated by private individuals, entrepreneurs and institutions and so required to be registered in the proper form under the required law before being registered with the Ministry of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 4

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Education as required under part vi of the Act which deals with Private Educational Institutions. 43. This section can be contrasted with part viii of the Act which deals with the governance and management of basic education and training regarding public schools. The part informs under sections 55, 56, 57, 58 and 59 of the Basic Education Act No 14 of 2013 that School Management Committees and the Board of Management are established as custodians of primary and secondary schools respectively. As such it follows that the Boards of Management and School Management Committees manage, supervise, and run afiairs of secondary and primary schools respectively and so only such bodies have the capacity to sue or be sued on behalf of the school. 44. In essence the legal status of private and public schools is distinct. The legal status of a private school owing to the definition, reveals that it can be legally registered in various forms. For instance, as a company under the Companies Act or if it is managed by a church as an organization under the Societies Act. This means therefore that there was need for the legal status of the respondent to be established by the petitioner to ascertain its legal capacity before filing this suit.”(Emphasis added) 31. This court’s reading of the authority above is that a private school can be registered as a company under the Company Act or as an organization under the Societies Act. The Plaintifi did not place before this court any evidence to show whether the 2nd Defendant is a registered company or an organization. Such evidence would have helped in determining whether the 1st Defendant was a proper party to this suit. 32. Even if the 2nd Defendant is a registered company and that the 1st Defendant is its owner, it is settled law that a company is a separate entity from its owner capable of suing and being sued in its own name. Conversely, if the 2nd Defendant is an organization registered under the Societies Act, it can only be sued through its registered oficials or registered trustees. 33. In the circumstances, given that the 1st Defendant was not the motor vehicle’s beneficial owner at the time of the accident, and in the absence of evidence that the 1st Defendant is the 2nd Defendant’s registered oficial or registered trustee, this court finds that the 1st Defendant is not a proper party to this suit. 34. The foregoing analysis also raises doubts on whether the 2nd Defendant was properly sued. Since the 2nd Defendant did not raise this issue, this court will let the sleeping dogs lie. 35. Turning to the question of who is to blame for the accident, the Plaintifi’s evidence in chief is that the accident occurred when the motor vehicle which was behind his motorcycle headed in the same direction suddenly swerved to the left before completing an overtaking manoeuvre, only to hit his motorcycle on the right side, thus causing the Plaintifi to fall. 36. If this court were to believe the Plaintifi’s evidence in chief, it inevitably follows that on inspection, the motorcycle’s inspection would have revealed damage to the motorcycle’s right side while the motor vehicle’s inspection would have revealed damage to the motor vehicle’s left side. 37. The Plaintifi did not place before this court the accident’s sketch map or his motorcycle’s inspection report to corroborate his version of events on how the accident occurred. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 5

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38. On the other hand, DW1 produced the motor vehicle’s Certificate of Examination and Test dated 09th May 2025, whose production was not opposed by the Plaintifi’s counsel, showing that the motor vehicle’s rear bumper was dented on the right side during the accident in support of his testimony that the Plaintifi rammed into the motor vehicle from behind. 39. The motor vehicle’s Certificate of Examination and Test dated 09th May 2025 dislodged the Plaintifi’s testimony on how the accident occurred. The evidence led by the 2nd Defendant proved on a balance of probabilities that the accident occurred when the Plaintifi rammed into the motor vehicle from behind. 40. Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) stated as follows on the liability of a driver who hits another motor vehicle from behind: 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 suficient 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’ 41. The Plaintifi did not adduce any evidence to dislodge the prima facie case of negligence established against him by the 2nd Defendant. Such evidence would ordinarily include evidence that the motor vehicle suddenly stopped along the road or suddenly turned right without warning other road users. 42. Given the reasons above, and guided by the authorities above, this court finds and holds that the Plaintifi is liable for the accident since he authored his own misfortunes by ramming into the motor vehicle from behind. 43. A finding that the Plaintifi is to wholly blame for causing the accident means that the Plaintifi’s case must sufier the fate of dismissal. However, for completeness of the record and for appeal purposes, this court, being the trial court, must assess the quantum of damages as elucidated by the Court of Appeal in andrew Mwori Kasaya v Kenya Bus Service (2016) eKLR, as follows: Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No. 124 of 1993 (UR). The court made the following observations on this issue: “The judge was clearly under a legal to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this Court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 6

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This principle has religiously been followed by the courts below. We highlight a few of such decisions on the point by way of illustration. In Pamela Misiga Okelo versus Odero O. Alfred [2011] eKLR the following observation were made: “With regard to grounds 3 this court is satisfied that although the plaintifi’s claim had been dismissed it was imperative on the trial magistrate to make an assessment of damages the appellant would have been awarded had she succeeded.” In Lei Masaku versus Kalpama Builders Ltd [2014] eKLR it was observed thus: “There is the issue of failure to assess damages. It has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issues of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know theview by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious fiaw and cannot stand. It therefore behooves this court to assess quantum.” See also Gladys Wanjiru Njaramba versus Globe Pharmacy and another [2014] eKLR for the observations that:“It is trite law that the trial court was under duty to assess the general damages payable to the plaintifi even after dismissal of the suit. This position is confirmed by the Court of Appeal in the case of Mordekai Mwangi Nandwa versus Bhogals garage CA No. 124 of [1993](UR)Where the court held that the that damages be assessed even if the case is dismissed does not imply writing an alternative judgment.” And in the case of Mayiya Byaba Loma & Another versus Uganda Transport Co Ltd. Uganda Supreme Court Appeal No. 10 of 1993 IV KALR 138 where the court held that:“The judge erred in not assessing the damage (sic) he would have awarded had the appeal court been successful in her claim.” Lastly in Masinga Ndonga Ndonge versus Kualam Limited [2016] eKLR, in which the High Court reviewed the above decisions and reiterated the principle enunciated above. The above case law is suficient demonstration that the appellant was genuinely aggrieved and the respondent rightly conceded ground 2 of the appeal that both courts below fell into error when they abandoned their role to assess damages payable to the appellant had he succeeded in his claim. 44. In line with the above authorities, this court proceeds to assess the quantum of damages. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 7

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Quantum of Damages A. General Damages for pain and sufiering 45. The Plaintifi pleaded in paragraph 7 of his plaint that the accident caused him to sufier soft tissue injuries and a fracture of the right femur. The Plaintifi’s uncontroverted medical evidence on record corroborated the Plaintifi’s averments on the injuries he sufiered as a result of the accident. 46. It is against this backdrop that this court finds and holds that the Plaintifi pleaded and proved on a balance of probabilities that, arising from the accident herein, he sufiered soft tissue injuries and a fracture of the right femur. 47. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore v Geofirey Mwenda [2004] eKLR, where the Court of Appeal stated as follows: “ Having so said, 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.” 48. This court has given due regard to the parties’ authorities on quantum. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi in Wainaina v Muniu (Civil Appeal E293 of 2023) [2026] KEHC 839 (KLR) where the High Court upheld an award of general damages of Kshs. 500,000/= for a fracture of the femur and other soft tissue injuries. 49. Guided by the authority above, had the Plaintifi proved that the 2nd Defendant caused the accident, this court would have awarded the Plaintifi general damages of Kshs. 500,000/=. B. Future medical expenses 50. The Plaintifi pleaded for future medical expenses of Kshs. 200,000/= for the removal of metal implants. Dr. Sokobe’s (PW2) medical report dated 17th June 2025 and his testimony before this court confirmed as much. 51. PW2 added that the Social Health Authority Insurance would pay between Kshs. 120,000/= - Kshs. 140,000/= for the said procedure in a public hospital. 52. A reading of the Plaintifi’s discharge summary and an invoice on record from Zion Specialists Hospital shows that the Social Health Authority (SHA) Insurance catered for the Plaintifi’s treatment and operation costs at the said hospital. PW2 having confirmed that SHA pays for the removal of implants, and in the absence of the Plaintifi’s evidence that his SHA insurance cover is no longer active, it follows that SHA will pay for the Plaintifi’s future medical expenses for the removal of the implants. 53. In Mupa v Chilson & another (Civil Appeal E045 of 2023) [2026] KECA 751 (KLR) the Court of Appeal held thus on who should claim for medical expenses paid by an insurer: “ 49. The doctrine of subrogation in insurance law provides for reimbursement of an insurer who has indemnified an insured person under the contract of indemnity insurance. For any third-party claims, it is the insurer who is entitled to reimburse itself of any claims that the insured will have against the third parties. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 8

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50. In the appeal before us, the appellant acknowledged that she was insured by APA Insurance Limited. In our view, the premiums paid are deemed to have been reimbursed to the appellant upon payment of the medical claims. She insured herself against future risks to obviate the need to spend money from her pocket. Had the appellant herself incurred the expense of paying from her own pocket, it would make sense to plead for reimbursement since there would be evidence of receipt payments. In this instance, we do not have receipts confirming that payments were made by her. In any event, it is the hospital which treated her that would be entitled to make claims from the insurance company. To make a finding that the appellant is entitled to Kshs.347,480, would be tantamount to an unjust enrichment on her part.” 54. The authority above leaves no doubt in this court’s mind that a Plaintifi cannot directly seek from a Defendant treatment expenses payable by an insurer. That can only be done through a subrogation claim after an insurer has made good the Plaintifi’s loss. 55. In the circumstances, this court would not have awarded the Plaintifi future treatment expenses of Kshs. 200,000/=. C. Special Damages 56. The Plaintifi pleaded for special damages of Kshs. 13,750/= comprising treatment expenses of Kshs. 5,000/=, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for the P3 form, Kshs. 200/= for the police abstract, and Kshs. 550/= for the motor vehicle search. 57. The receipts from Zion Specialists Hospital proved treatment expenses of Kshs. 2,400/= at the said facility; the receipt from Bungoma Orthopaedic Centre proved treatment expenses of Kshs. 2,500/=, while the receipt from Bungoma County Referral Hospital proved payment of treatment expenses of Kshs. 150/=. This totaled to treatment expenses of Kshs. 5,050/=. Parties are bound by their pleadings; therefore, the Plaintifi can only be awarded the pleaded Kshs. 5,000/=. 58. The receipt produced by PW2 proved that the Plaintifi expended Kshs. 6,000/= for the medical report. The NTSA search receipt, on the other hand, proved the claimed Kshs. 550/= for the motor vehicle search. 59. The Plaintifi did not place before this court receipts for payments for the P3 form and the police abstract. In any event, those documents are issued and filled in public institutions free of charge. In the event the Plaintifi paid for the same, he was engaged in a frolic of his own and an illegality which he cannot seek to benefit from. 60. The foregoing shows that the Plaintifi pleaded and proved special damages of Kshs. 11,550/=. 61. Be that as it may, the 2nd Defendant submitted that this court ought not to award the Plaintifi special damages sought through receipts without revenue stamps. The 2nd Defendant cited various High Court decisions in support of this position. 62. It is given that some of the receipts from Zion Specialists Hospital produced by the Plaintifi to claim treatment expenses do not have revenue stamps. The other receipts for specials on record are ETR receipts which do not require revenue stamps. 63. With respect, the position taken by the 2nd Defendant on the admissibility of receipts without revenue stamps in claiming special damages is a misapprehension of the law. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 9

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64. The Court of Appeal in Paul N. Njoroge v Abdul Sabuni Sabuni [2015] eKLR stated as follows regarding this issue: “ The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR...”(Emphasis added) 65. The Court of Appeal in the Njoroge case (supra) also proceeded to reiterate its position on the matter by emphasizing the position earlier adopted by Law J. (as he then was) in Suderji Nanji Limited v Bhaloo [1958] EA 762 that: “ ...before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ... The appellant has never been given the opportunity to pay the requisite stamp and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd Defendant/Respondent and he must be given the opportunity...We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported noncompliance with the Stamp Duty Act. At all events, the act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof...”(Emphasis added) 66. It is against this backdrop that this court would have awarded the Plaintifi special damages of Kshs. 11,550/=. Determination 67. The upshot of the foregoing is that the Plaintifi’s suit is dismissed with costs. 68. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 04TH DAY OF AUGUST 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Oriko for the Plaintifi Mr. Ogila for the 1st Defendant Ms. Chebet for the 2nd Defendant Mr. Njue for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/708/eng@2026-08-04 10

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