Festus Muema alias Nzala Nzioka v Ragos Trading Co. Ltd alias Ragos Transporters

Plaintiff’s case 5. During the viva voce hearing of his case, the Plaintiff, who testified as PW1, told the court that on 22nd January 2025, he was lawfully travelling in motor vehicle registration number KDE 684K. He was travelling from Kitui to Nairobi for work. 6. On reaching Mlolongo area on Mombasa road near AIC Kasina at around 8-8:30pm, the driver of motor vehicle registration number KBK 020M, belonging to the Respondent, drove it so negligently and carelessly that it lost controlled and hit motor vehicle registration number KDE 684K. 7. As a result of the accident, PW1 sustained severe life-threatening bodily injuries. 8. PW1 was rushed to Shalom Community Hospital at Athi River for treatment. He was accorded first aid before being transferred to Mbagathi Hospital for treatment. He was treated and discharged to go recuperate at home. 9. He is blaming the driver of KBK 020M and wants the Respondent held liable for the accident. 10. PW2 was Number 11874 Police Constable Dennis Rotich. He produced a Police Abstract dated 13th June 2025 relating to an accident that occurred along Mombasa Road near AIC Kasina on 22nd January 2025. 11. The accident involved motor vehicle registration number KDE 684K Toyota Hiace and motor vehicle registration number KBK 020M/G0679 Mercedes Benz. 12. He produced the Police Abstract as exhibit number two. 13. Asked, in cross-exmination as to who was to blame, PW2 told the court that he had no idea. Further, he told the court that exhibit two related to one Eijah Nyoro Mbugua and not PW1. He did not have the Police Abstract relating to PW1. 2

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14. He was not the investigator of the case. Respondent’s case/response 15. Gedion Mutai, a driver with the Respondent, testified as DW1 in defence of the Respondent. 16. On 22nd January 2025 at 7:30 pm, he left Athi River on his way to Salgaa in Nakuru. He was driving motor vehicle registration number KBK 020M/G0679 loaded with a consignment of Clinker weighing 29.56 tones. 17. At around 8:30pm, he was driving along Mombasa Road at a speed of 20-30 Km/hour. The headlights were on. Visibility was clear and the weather was good. There were no pedestrians on the road. 18. On reaching the area around AIC Kasina, DW1 heard a loud bang from the rear side of his vehicle. He stopped his vehicle and alighted to go check what had happened. 19. Upon alighting, DW1 found that a Nissan Matatu registration number KDE 684K had rammed into the rear body of his vehicle with its front left side. 20. The occupants of the Nissan Matatu sustained varying bodily injuries following the accident. They visited hospitals of their choice for treatment. DW1 did not sustain any injuries. 21. A police officer escorted DW1 to Athi River Police Station. Both vehicles were detained in the police yard awaiting inspection. Upon inspection, the following day, no defects were noted on DW1’s vehicle. It was released to him and he continued with his journey to Salgaa. This was after he was issued with a Police Abstract. 22. The Nissan Matatu damaged its front bumper following the impact of the accident. 23. He denied causing the accident. It was his contention that the accident was wholly caused by the driver of KDE 684K. He was 3

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speeding and failed to keep a safe distance from DW1’s vehicle. He is, therefore, to blame for the accident. 24. He wants PW1’s claim dismissed with costs. The 3rd Party’s case 25. Elijah Nyoro Mbugua testified in defence of the 3rd Party. He was the driver of KDE 684K at the time of the accident. 26. He denied causing the accident that occasioned PW1 injuries. It was his evidence that at the time of the accident, DW1’s vehicle had stalled in the road. He could not evade it. 27. At the time of the accident, the lights of his vehicle were on. He denied being drunk and blamed DW1 for causing the accident. Analysis and determination 28. I have read the evidence and defence on record. I have also read the Response to the 3rd Party Notice and submissions from the parties, plus the annexures thereto. 29. From my reading of what is on record, the issues that lie for determination are liability and the quantum of damages. Who should be held liable for the accident? 30. According to the Plaintiff, PW1, the Respondent (DW1) is to blame for the accident and should be held as such. In seeking to have DW1 held responsible, PW1 referred the court to the following list of authorities: (i) Cornella Elaine Wamba vs Shreeji Enterprises Limited & Others Civil Case No. 754 of 2005. (ii) William Kabogo Gitau vs George Thuo & 2 Others [2010] 1KLR 526. 31. The Respondent has denied being liable and has sought to enjoin the 3rd Party as the person responsible for the accident. It is 4

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blaming the 3rd Party for contributing to the occurrence of the accident. 32. In response, the 3rd Party denied contributing to the accident and prayed that the Respondent’s claim against it be dismissed with costs. 33. For the Respondent to be held liable for the accident that caused PW1 injuries, PW1 is required to prove, on a balance of probabilities, that the Respondent is indeed to blame. 34. Section 107, 108 and 109 of the Evidence Act Chapter 80 of the Laws of Kenya states that: 107. “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 35. Affirming the above position, the Court of Appeal, in East Produce (K) Limited v Christopher Astiado Osiro Civil Appeal No. 43 of 2001, held that: 5

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“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.” 36. Further, in Githae v Subati Flowers Ltd (Civil Appeal 81 of 2019) [2024] KECA 60 (KLR), the same Court stated that: “Liability must therefore be established through evidence in line with the requirements of sections 107 and 108 of the Evidence Act, which require that he who alleges ought to prove 37. The question that thus springs to the foregong is, has PW1 proved, to the requisite standard, that the Respondent was negligent and should consequently be held liable for the accident that occasioned him injuries? 38. To answer the above question, it is critical to seek guidance in the views of the superior courts. 39. In Nickson Muthoka Mutavi vs. Kenya Agricultural Research Institute (2016) eKLR, Nyamweya, J quoted Halsbury’s Laws of England, 4th Edition at paragraph 662 page 476 and stated that: “The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the prove of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff 6

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between which and the breach of a causal connection must be established.” 40. From the foregoing precedence, it is incumbent upon PW1 to prove negligence on the part of the Respondent before it/he can be held liable. The three elements that PW1 is required to prove are that: (i) The Respondent owed him a duty of care. (ii) That duty was breached. (iii) As a result of the breach, he suffered loss and damage. 41. The three elements were lucidly enunciated by the High Court in the case of Stephen Kanjabi Wariari vs Dennis Mutwiri Muriuki & another [2022] KEHC 2664 [KLR], where Lady Justice Lucy Njuguna observed that: “As I have already noted, the appellant's case (as was before the trial Court) was premised on the tort of negligence. That being the case, the appellant had a duty to prove that the accident was caused by the negligence of the respondents herein. In so doing, the appellant had a duty to prove the elements of negligence. The elements of the tort of negligence which must be proved for an action in negligence to succeed are (a) there was a duty of care owed to him, (b) the duty has been breached, and (c) as a result of that breach he or she has suffered loss and damage (See Donoghue v Stevenson (1932] A.C.562.)" 42. Has PW1 proved that the Respondent owed him a duty of care? The answer to this question should be in the affirmative given that every driver owes a duty of care to other road users. 43. Secondly, has PW1 proved that the Respondent breached this duty? To prove this, PW1 told the court that on the material date, DW1 drove motor vehicle registration number KBK 020M so 7

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negligently and carelessly that it lost control and hit the vehicle that PW1 was travelling in causing him injuries. 44. This position was denied by DW1. I also note that the 3rd Party, who was driving the vehicle that PW1 was travelling in, told the court that motor vehicle registration number KBK 020M/ G0679 had stalled in the road at the time the accident took place. 45. In his defence, DW1 told the court that the vehicle that PW1 was travelling in rammed into his vehicle. He denied that it had stalled in the road. 46. The fact that PW1 and 3rd Party, who were in the same vehicle, gave totally different accounts of what unfolded casts serious doubts on the evidence of PW1 and his quest to have DW1 held liable for the accident. For instance, while PW1 told the court that DW1 drove motor vehicle KBK 020M/G0679 negligently and carelessly that it lost control and hit motor vehicle registration number KDE 684K, the 3rd Party told the court that DW1’s vehicle had stalled in the road. 47. From the above, I am not satisfied that PW1 has proved that the Respondent breached the duty of care that he owed him. 48. From the evidence on record, the probability is high that the Respondent’s vehicle was either in motion or had stalled and that it is the 3rd Party who rammed into it. What is, nonetheless, not in dispute is that PW1 was a lawful fair-paying passenger in motor vehicle registration number KDE 684K. It is also not in dispute that the accident that caused PW1 injuries did indeed take place. 49. Owing to the foregoing, I apportion liability in the ratio of 50:50 between the Respondent and the 3rd Party and in favour of PW1. What is the quantum of damages that should be awarded? 50. Having settled the issue of liability, I will now proceed and rule on the quantum of damages. 8

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51. For general damages, PW1 wants to be awarded Kshs 1,000,000/=. This amount, according to PW1, is premised on the fact that he sustained the following injuries: 52. (i) Blunt injury to the head. (ii) Multiple bruises on the left side of the face. (iii) Blunt injury to the chest. (iv) Fracture clevicle-left. (v) Blunt injuries to both upper limbs. (vi) Bruises on the left knee. According to Doctor Nthanga, who examined PW1, he suffered multiple soft and skeletal tissue injuries, as a result of the accident. 53. In response, the Respondent is of the view that an award of Kshs 500,000 would be good enough in the circumstances of this case. 54. All that the 3rd Party did was to deny liability and pray that PW1’s claim be dismissed with costs to the 3rd Party. 55. To arrive at what a court should award in damages, superior courts have held that comparable injuries should be compensated with damages that are more or less similar. 56. This is what Majanja J stated in Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 others [2019] KEHC 9928 (KLR), where he held that: “General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly [the same].” 57. I will, therefore, move and consider some cases where the parties suffered injuries that were similar to those that PW1 sustained. 9

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58. In Omondi v. Anzofu (2024 KEHC 2675 (KLR), an accident involving a pedestrian and a motor vehicle, that resulted in multiple soft tissue injuries, the courts awarded Ksh. 300,000/=. 59. In the case of Thuo & another v. Nanzala (2024) KEHC 2978 (KLR), the courts awarded a sum of Kshs. 400,000/= for multiple soft tissue injuries including dislocation of the right elbow joint. 60. In Kalei & Another v. Mooke and Another (2026) (KEHC 4259, the court declined to interfere with the trial court award of Kshs. 400,000/= for soft tissue injuries including chest contusion, bruises and deep cut wounds. 61. Guided by the foregoing authorities, I award PW1 Kshs 500,000/= in general damages. This award is subject to apportionment of liability in the ratio of 50:50 between the Respondent and the 3rd Party. 62. Having specifically pleaded and proved special damages amounting to Kshs 12,250/=, I award PW1 this amount plus costs and interest at court rates from the date of this judgment. 63. The total award to PW1, subject to apportionement of liability in the ratio of 50:50 between the Respondent and 3rd Party and in favour of PW1, would, therefore, come down to the following: (i) General damages: Kshs 500,000.00 (ii) Special damages: Kshs 12,250.00 TOTAL: Kshs 512,250.00 Dated signed and delivered virtually on this 30th day of September 2026 at Nairobi EDWIN MULOCHI SENIOR RESIDENT MAGISTRATE 10

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C/A: Serene Kemunto 11

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