Wanyonyi v Dabani & 2 others (Civil Case E260 of 2025) [2026] KEMC 772 (KLR)

number KCH 346 V reportedly owned by the 1 st and 2nd Defendants, while being driven by the 3rd Defendant, lost control and knocked his motor vehicle thereby causing him to sustain bodily injuries set out in paragraph 7 of the Plaint. 3. The Plaintiff further pleaded that the accident caused him to spend Kshs. 650/= for treatment expenses, Kshs. 4,000/= for the medical report, and Kshs. 550/= for the copy of records, hence necessitating this suit for general damages and special damages. 4. He blamed the Defendants’ negligence for the occurrence of the accident as pleaded in paragraph 6 of the Plaint. 5. The Defendants entered appearance and filed a Statement of Defence. They denied all the averments in the Plaintiff’s Plaint regarding ownership of motor vehicle registration number KCH 346 V, the particulars of negligence attributed to them, and the occurrence of the accident. 6. In the alternative, the Defendants averred that if the accident occurred, then the same was wholly caused or substantially contributed by the Plaintiff’s negligent acts. EVIDENCE Plaintiff’s Case 7. PW1 Abel Wanyonyi adopted his witness statement dated 28 th May 2025 as his evidence in chief. His testimony was that on the date of

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the incident, while driving his motor vehicle registration number KCM 648 R along Bungoma – Webuye road heading towards Bungoma general direction, the Defendants’ motor vehicle registration number KCH 346 V lost control and knocked his motor vehicle from behind, causing him to sustain the injuries pleaded in the Plaint. 8. He produced all the documents in his list of documents dated 28 th May 2025 as his exhibits. Defendants’ Case 9. The Defendants did not call any witnesses to substantiate the allegations pleaded in their Statement of Defence despite being served with all the relevant mention notices and hearing notices. Parties’ Written Submissions 10. On liability, the Plaintiff submitted that the motor vehicle registration number KCH 346 V copy of search, evidenced that the 1 st Defendant was the said motor vehicle’s registered owner. He also submitted that the police abstract dated 13 th May 2025 showed that the 2nd Defendant was the said motor vehicle’s owner. 11. He added that the 3rd Defendant’s driving license on record proved that the 3rd Defendant was the 1st and 2nd Defendants’ agent and/or servant, thus the 1st and 2nd Defendants were vicariously liable for the 3rd Defendant’s actions. 12. The Plaintiff further submitted that the failure by the Defendants to call witnesses to substantiate the averments in their Statement of

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Defence rendered the Plaintiff’s case uncontroverted. He placed reliance on Motex Knitwear Limited Vs Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002 and Trust Bank Limited Vs. Paramount Universal Bank Limited and 2 Others Nairobi (Milimani) HCCC No. 1243 of 2001 for this position. 13. The Plaintiff further submitted that in the absence of the Defendants’ version of events on how the accident occurred, this court ought to find the Defendants 100% liable for the occurrence of the accident. 14. Regarding quantum for general damages, the Plaintiff relied on Equity Bank Kenya Limited & 2 Others Vs. Lucy Ntibuka Vs. Bernard Mutwiri & Others (2007) eKLR (sic) for an award of Kshs. 500,000/=. 15. The Plaintiff submitted that his testimony to the effect that he still needed painkillers to ease the pain arising from the accident’s injuries corroborated his prayer for future medical expenses. He submitted that an award of Kshs. 100,000/= was sufficient for future medical expenses by relying on Florence Njoki Mwangi Vs. Peter Chege Mbitiru (2014) eKLR, where the court awarded Kshs. 100,000/= for removal of K nails. 16. On Special Damages, the Plaintiff submitted that he had pleaded and proved Special Damages of Kshs. 5,200/=.

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ANALYSIS AND DETERMINATION 17. This court has duly considered the pleadings, the evidence, the written submissions on record, as well as the authorities relied upon by the Plaintiff. 18. It is worth noting from the onset that the Defendants rightly submitted that the failure by the Defendants to call witnesses to substantiate the averments in their Statement of Defence rendered those averments mere allegations which this court will not consider in determining this case. 19. The police abstract on record shows that the accident herein occurred, and the same was reported to the police vide OB No. 31/10/05/2025. There is no evidence to controvert the entries in the said police abstract on the occurrence of the accident. 20. It is against this background that this court finds and holds that the issues for determination in this case are liability and quantum. Liability 21. The Plaintiff pleaded that the 1st Defendant was the motor vehicle registration number’s KCH 346 V registered owner, while the 2nd Defendant was the said motor vehicle’s beneficial owner. He also pleaded that the 3rd Defendant was the said motor vehicle’s driver at the time of the accident.

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22. The Plaintiff submitted that the police abstract and the copy of records for motor vehicle registration number KCH 346 V, and a copy of the 3rd Defendant’s diving license on record, proved the allegations above. 23. A reading of the copy of records of the said motor vehicle’s copy of records dated 12th May 2025 shows that the said motor vehicle was owned by the 1st Defendant at the time of the accident herein. The police abstract, on the other hand, lists the 2nd Defendant as the said motor vehicle’s registered owner. 24. The law in this jurisdiction is that the entries in the register of motor vehicles on ownership of a motor vehicle raise a rebuttable presumption on ownership of such a motor vehicle (see section 8 of the Traffic Act). Therefore, that entry in the register of motor vehicles on ownership of the said motor vehicle could only be rebutted by cogent evidence on how the said motor vehicle’s ownership changed from the 1st Defendant to the 2nd Defendant as purported in the police abstract on record. 25. The Plaintiff’s averment in the Plaint that the 2nd Defendant was the motor vehicle’s beneficial owner could only be proved on a balance of probabilities by a motor vehicle sale agreement transferring ownership of the said motor vehicle from the 1st Defendant to the 2nd Defendant or a certificate of insurance showing that the 2nd Defendant

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was the said motor vehicle’s insurer. No such evidence was placed before this court by the Plaintiff. 26. The Plaintiff sought to prove that the 3rd Defendant was the said motor vehicle’s driver at the time of the accident herein by relying on a copy of the 3rd Defendant’s driving license on record. 27. This court is unable to tell how the Plaintiff obtained the 3rd Defendant’s driving license. The 3rd Defendant’s identity as the person who was driving the 1st Defendant’s motor vehicle at the time of the accident is further complicated by the fact that the 3rd Defendant’s name does not appear anywhere in the police abstract on record. 28. The foregoing begs the question of how and why did the Plaintiff join the 2nd and 3rd Defendants to this suit. It is this court’s view that the accident’s investigating officer was the only person who could answer this question. Unfortunately, the accident’s investigating officer did not testify before this court. 29. Therefore, in the absence of the evidence alluded to above, this court is of the considered view that the 2nd and 3rd Defendants were improperly joined to this suit; hence they cannot be held liable for the accident herein. 30. Be that as it may, the 1st Defendant being the said motor vehicle’s registered owner bore the evidential burden of proving that the said motor vehicle was not being driven for his benefit and with his permission at the time of the accident. He did not discharge that

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burden. Therefore, in the event this court finds the said motor vehicle’s driver negligent for the occurrence of the accident herein, the 1st Defendant will be vicariously liable for his driver’s negligent acts. 31. The Plaintiff’s evidence on the circumstances of the accident was that he sustained the bodily injuries when his motor vehicle was hit from behind by the 1st Defendant’s motor vehicle. There is no evidence on record to controvert the Plaintiff’s evidence on the circumstances under which the accident occurred. 32. The mere fact that the Plaintiff’s motor vehicle was knocked from behind by the 1st Defendant’s motor vehicle and the fact that the accident occurred during the day shows that the 1st Defendant’s driver had a clear view of the Plaintiff’s motor vehicle before the occurrence of the accident. 33. A prudent driver exercising due care and skill cannot hit another motor vehicle from behind unless the other motor vehicle suddenly emerges on the road. That is not the case in this matter. 34. Where a motor vehicle hits another motor vehicle from behind, a prima facie case of negligence is usually established against the driver who hit the other motor vehicle from behind, as expressed 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:-

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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 sufficient 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’ 35. In the absence of the 1st Defendant’s evidence to dislodge a prima facie case of negligence established against his driver by the evidence adduced by the Plaintiff, this court finds the 1 st Defendant 100% vicariously liable for the occurrence of the accident herein. Quantum of Damages (a) 36. General Damages for pain and suffering The Plaintiff’s treatment notes from Elgon View Medical cottage dated 15th May 2025, P3 form dated 12th May 2025, treatment notes from Mabanga Medical Clinic dated 10 th May 2025, and the Medical Report dated 13th May 2025 by Dr. Ekesa proved on a balance of probabilities that the Plaintiff sustained the bodily injuries pleaded in the Plaint.

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37. The said injuries were moderate soft tissue injuries, which were assessed as harm. It is also noteworthy that the Plaintiff was treated as an outpatient. The Plaintiff testified that he was still recovering since he usually goes for a monthly check-up and that he needed money for physiotherapy. 38. It is well settled in this jurisdiction that comparable injuries attract comparable awards. 39. The Plaintiff urged this court to make an award of Kshs. 500,000/= under this head by placing reliance on Lucy Ntibuka Vs. Bernard Mutwiri & Others (2007) eKLR. The Plaintiff in that case suffered more severe injuries, including a brain concussion, compared to the Plaintiff herein. Therefore, that authority is not applicable in this case. 40. The injuries sustained by the Plaintiff in this case are almost similar to the injuries sustained by the Plaintiffs in the cases below. 41. In HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR, the High Court upheld an award of Kshs. 60,000/= for soft tissue injuries to the head, thorax, abdomen, and limbs. 42. of In Asad Motors Limited & 2 others v Yaa (Civil Appeal 92 2022) [2023] KEHC 24279 (KLR) (24 October 2023) (Judgment), Kshs. 100,000/= was awarded for deep cuts on the

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forehead and upper lip, blunt object injury, and bruises to the right lower limb and loosening of the upper front tooth. 43. Finally, in Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR) (24 April 2025) (Judgment), the court awarded Kshs. 80,000/= for multiple soft tissue injuries. 44. Guided by the authorities above, and more particularly the Ondiso case (supra) determined in April 2025, and considering inflation trends in this country since April 2025 to date, this court makes an award of Kshs. 100,000/= under this head. (b) 45. Future Medical Expenses The Plaintiff pleaded for medical expenses in paragraph 7 of his Plaint. The Medical Report on record by Dr. Ekesa shows that the Plaintiff needs anti-inflammatory drugs and psychological support. 46. The Plaintiff testified before this court that he was still recovering from the injuries and that he needed money for monthly medical check up and physiotherapy. 47. It was the Plaintiff’s submission that an award of Kshs. 100,000/= was sufficient under this head. The Plaintiff relied on Florence Njoki Mwangi Vs. Peter Chege Mbitiru (2014) eKLR, where the court awarded Kshs. 100,000/= for removal of K nails. 48. The authority above is not applicable in this case given that the said authority was limited to future expenses for the removal of K nails. The Plaintiff in this case only needs money for medical monthly check

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up and physiotherapy. He did not state if he needed psychosocial support as alleged by Dr. Ekesa. 49. It follows that the only pleaded and proved future medical expenses for the Plaintiff is the purchase of anti-inflammatory drugs 50. Dr. Ekesa did not testify on the duration the Plaintiff would need anti-inflammatory drugs and the cost of the said drugs. In the circumstances, this court will exercise its discretion in making an award under this head. 51. Taking the totality of the injuries sustained by the Plaintiff in this case into consideration, this court makes an award of Kshs. 10,000/= for the Plaintiff’s anti-inflammatory drugs/painkillers. (c) 52. Special Damages The Plaintiff pleaded for Special Damages of Kshs. 5,200/= as particularized in paragraph 6 of his Plaint. The Plaintiff’s receipts on record proved as much. 53. It is against this backdrop that this court finds and holds that the Plaintiff pleaded and proved Special Damages of Kshs. 5,200/= DETERMINATION 54. The upshot of the foregoing is that judgment is entered against the 1st Defendant in the following terms: a) Liability………………………………………100% against 1st Defendant in favour of the Plaintiff

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b) General Damages…………………...………Kshs. 100,000/= c) Special Damages……………………...…….Kshs. 5,200/= d) Future medical expenses…………………...Kshs. 10,000/= Total Award…………………………………Kshs. 115,200/= 55. 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. 56. The suit against the 2nd and the 3rd Defendants is dismissed with no order as to costs. 57. The Plaintiff will have the costs of this suit. 58. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 06th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintiff C/A: Mr. Rioba

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