Makhanu v Abdulahi & another (Civil Case E266 of 2025) [2026] KEMC 717 (KLR)

4. The Defendants chose not to file an Amended Statement of Defence despite having been served with the Plaintifi’s Amended Plaint herein. Evidence Plaintifi ’s Case 5. PW1 Dickson Wanyonyi Makhanu adopted his witness statement herein as his evidence in chief. His testimony was that the accident occurred when the Defendants’ motor vehicle hit his motor vehicle from behind along the Bungoma – Webuye road near the Sikata bridge. 6. He also produced all the documents listed in his list of documents herein as exhibits. Defendant’s Case 7. The Defendants did not call any witnesses. Analysis and Determination 8. This court has given due regard to the pleadings, evidence on record, the parties’ submissions, and the authorities relied upon by the respective parties. 9. The uncontroverted evidence on record shows that the accident herein occurred, causing the Plaintifi to sustain bodily injuries. The evidence on record also shows that the Defendants owned motor vehicle registration number KAX 994 J/ZC 6849 at the time of the accident. 10. Given the above, the issues that commend to this court for determination are liability and quantum. Liability 11. The Plaintifi’s evidence was that this accident occurred when the motor vehicle he was driving was hit from behind by the Defendants’ motor vehicle. The Defendants did not lead any evidence to controvert the Plaintifi’s version of events on the circumstances under which the accident herein occurred. 12. The Plaintifi witnessed the accident. His evidence on the circumstances under which the accident occurred was direct evidence within the meaning of section 63 (2) of the Evidence Act. 13. Direct evidence is the best evidence one can adduce in support of their case. Where direct evidence is not controverted, it follows that the court must believe such evidence unless the circumstances of a particular case demand otherwise. 14. The Plaintifi’s uncontroverted direct evidence is that the motor vehicle he was driving was hit from behind by the Defendants’ motor vehicle. This begs the question of whether such uncontroverted direct evidence was suficient to establish negligence by the Defendants. 15. The question above was answered by Musyoki J in Atanga v Rojeh (Civil Appeal E195 of 2023) [2025] KEHC 6067 (KLR) (15 May 2025) (Judgment) where the learned judge expressed himself as follows: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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/717/eng@2026-03-26 2

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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’ 16. Guided by the authority above, it follows that the Plaintifi’s direct uncontroverted evidence on the circumstances under which the accident occurred established a prima facie case of negligence against the Defendants. 17. The Plaintifi having established a prima facie case of negligence against the Defendants, it was incumbent upon the Defendants to dislodge the prima facie case of negligence through evidence, not submissions. Submissions are not evidence, no matter how fiowery and rich in law or authorities they may be. 18. The Defendants did not give any reason why their motor vehicle driver did not testify before this court to give his version of events on how the accident herein occurred. This shows that the Defendants deliberately chose not to lead evidence within their knowledge or control on the circumstances under which the accident herein occurred. 19. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR, the court stated as follows regarding the consequence of a party failing to adduce evidence within their knowledge or control: “ Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: “ In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving of disproving that fact is upon him.’ Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho v KCB [2003] 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.” 20. Guided by the authority above, it follows that the failure by the Defendant’s driver to testify on the circumstances under which the accident occurred or the failure by the Defendants to lead any evidence on the circumstances under which the accident occurred only leads to the inevitable conclusion that had the Defendants led evidence on the circumstances under which the accident occurred, that evidence would have been adverse to their case. 21. The foregoing does not in any way mean that this court has shifted the burden of proof to the Plaintifi. This simply means that upon the Plaintifi establishing a prima facie case of negligence against the Defendants, the evidential burden shifted to the Defendants to dislodge the prima facie case of negligence established against them. 22. The Defendant’s driver owed the Plaintifi a duty of care to ensure that the Plaintifi reached his destination safe and sound. That duty of care was breached when the accident occurred, causing multiple soft tissue injuries to the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/717/eng@2026-03-26 3

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23. The upshot of the above is that the Defendants failed to dislodge the prima facie case of negligence established against them by the Plaintifi. 24. It is against this backdrop that this court finds and holds the Defendant 100% liable for the occurrence of the accident. Quantum a. General Damages for Pain and Sufiering 25. The Plaintifi pleaded in paragraph 6 of his Plaint that the accident caused him to sustain low back pains, tenderness of lower back muscles, and lumbar hypo-lordosis/stifiness of the back due to muscle spasms. 26. The uncontroverted Plaintifi’s medical evidence contained in Dr. Mulianga Ekesa’s medical report dated 08th April 2025, the P3 form dated 08th April 2025, and the radiology report dated 08th April 2025 from Bungoma County Referral Hospital proved on a balance of probabilities that the Plaintifi sustained the moderate soft tissue injuries pleaded in paragraph 6 of his Amended Plaint. 27. It is well settled in this jurisdiction that comparable injuries should, as far as possible, be compensated by comparable awards. This legal principle was reiterated by the Court of Appeal in Stanley Maore vs Geofirey Mwenda (2004) eKLR, as follows: “ ...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.” 28. This court has given due regard to the written submissions on record on quantum. 29. The Defendant urged this court to award Kshs. 60,000/= under this head by relying on 2019 and 2021 decisions, where courts made general damages awards between Kshs. 60,000 – 90,000/= for multiple soft tissue injuries. Given the passage of time from the date the said decisions were rendered, the said authorities are not applicable in this case. 30. The Plaintifi, on the other hand, prayed for an award of Kshs. 650,000/= under this head by citing authorities where the Plaintifis sufiered more serious injuries than the ones sustained by the Plaintifi herein. Those authorities do not apply to this case. 31. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi in Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR), where the court awarded Kshs. 80,000/= for soft tissue injuries to the head and leg. 32. In the circumstances, this court makes an award of Kshs. 80,000/= under this head. b. Special Damages 33. The Plaintifi pleaded in paragraph 7 of his Amended Plaint for Special Damages of Kshs. 18,810/=. 34. Some of the receipts produced by the Plaintifi in support of the pleaded Special Damages were illegible. 35. The legible receipts produced by the Plaintifi were the receipt for the medical report for Kshs. 5,000/=, the receipt for the copy of records for Kshs. 550/=, and the receipts for medical expenses from Bungoma County Referral Hospital for Kshs. 1,190/=. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/717/eng@2026-03-26 4

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36. The receipts produced by the Plaintifi proved the pleaded Special Damages. 37. It is against this backdrop that this court makes an award of Ksh. 6,740/= under this head. Determination 38. The upshot of the foregoing is that judgment is entered against the Defendants jointly and severally in the following terms: a. Liability………………………………………100% b. General Damages…………………...………Kshs. 80,000/= c. Special Damages……………………...…….Kshs. 6,740 /= Total Award……………………… Kshs. 86,740/= 39. The General Damages will accrue interest at court rate from the date of this judgment till payment in full while the Special Damages will accrue interest at court rate from the date of filing this suit till payment in full. 40. The Plaintifi will have the costs of this suit. 41. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 26TH DAY OF MARCH 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Kiragu for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/717/eng@2026-03-26 5

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